B.S. Contractors vs Bishan Singh

Swatanter Kumar, J.—M/s B.S. Contractors filed a suit through its partner Harbhajan Singh Saini against Bishan Singh defendant from interfering in the functioning of the firm and further restraining him from entering into any contract in the name of the firm. The suit was contested by the defendant. The case of the defendant was that the plaintiff had no locus-standi to file the suit. The firm according to the defendant was a sole proprietorship concern of the defendant and the plaintiff had no interest, right or title in the said business. Consequently, he prayed for dismissal of the suit.

After the pleadings of the parties were complete, during the pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 of the CPC praying for amending the plaint. The amendment particularly related to reframing of paragraphs No. 2 and 3 of the plaint already on record and without consequential changes. It was stated in the application for seeking amendment of the plaint that the word ''partner'' had been written erroneously and the remaining 10% shares had also been transferred and sold by the defendant to the plaintiff after which the defendant had no interest in the business and it had become sole proprietorship of the plaintiff. This application for amendment was contested by the defendant who stated that the plaintiff was trying to change his entire case and the application was filed at a belated stage.

Vide order dated 8.11.1997 the learned Subordinate Judge (Jr. Division), Amritsar, dismissed the application of the plaintiff, thus, giving rise to the present revision petition.

The learned counsel for the petitioner contended that the learned trial Court has fallen in error which amounts to a jurisdictional error, in not appreciating the facts averred in the plaint. He further contended that the application was no where contrary to the case already pleaded by the plaintiff in the suit. On the other hand, learned counsel for the respondent-defendant argued that application was an abuse of the process of the Court and amounts to withdraw of admission which according to him was not permissible.

In order to determine the merits of the respective rival contentions raised by the learned counsel appearing for the parties, reference to the pleadings originally filed by the parties on the record would be necessary, which are as under:-

"3. That as already submitted above that on 22.2.96 partnership deed was executed between the said Sh. Harbhajan Singh Saini with defendant whereby it was mutually agreed to run the partnership business and the terms and conditions of the said partnership business were duly incorporated in the said partnership deed. Photostat copy of the said partnership deed is attached herewith. It is worth mentioning that the defendant has agreed vide the said partnership deed to run the business alongwith other person i.e. Shri Harbhajan Singh Saini as its partner and the clause No.7 of the said partnership deed shows that the said Harbhajan Singh has 90% share whereas the said Bishan Singh has 10% share. It was specifically mentioned that the trade name of the partnership shall be M/s B.S. Construction and the same can be changed from time to time."

"6. That some time back the intention of the defendant had been bad and he has been threatening the plaintiff that he will issue a letter to the said department stating thereby that he has cancelled the said Power of Attorney resulting thereby causing the huge financial loss to the plaintiff firm."

"7.......The perusal of the entire documents will reveal that in fact the defendant has given all the exclusive right to run the business to Sh. Harbhajan Singh Saini and now by acting in these illegal method the defendant wants to harass the plaintiff for nothing."

"8. That the plaintiff firm though Harbhajan Singh Saini has requested the defendant that he has got no legal and lawful right to interfere into the functioning of the business but the defendant has failed to listen to the lawful request of the plaintiff and has bent upon to cause the financial loss to the plaintiff firm as is clear from his act of writing the letter, to the department in regard to the said power of attorney which is irrevocable one as the defendant has received the entire amount of sale consideration of the said business of the plaintiff firm."

The above paragraphs were denied by the defendant in his written statement and he had pleaded that he is the sole proprietor of M/s B.S. Construction.

It is clear from the afore narrated pleaded facts that the parties were already at issue with regard to the fact whether the plaintiff firm was a partnership concern or had become sole proprietorship concern, and if so, whose sole proprietorship was it. This controversy has to be settled by the Court during trial upon such evidence which may be adduced by the parties concerned. By virtue of the present application for amendment all that the applicant desired was that he may be permitted to substitute the word ''partner'' in the existing plaint by the word ''proprietor'' and may be permitted to say that after transfer of 10% shares which were sold by the defendant to the plaintiff by executing the agreement and relinquishment in favour of the plaintiff, plaintiff has become sole proprietor of the concern. In the circumstances of the present case the expression ''partner'' if permitted to be substituted by the expression ''proprietor'' would no way tantamount to withdrawal of an admission which has not been explained in accordance with law. In the paragraphs of the plaint it has also been indicated that the defendant has no concern with the business as he had executed a power of attorney in favour of the plaintiff and had received the entire sale consideration. It is also further specifically stated that the defendant had sold the 10% shares in favour of the plaintiff and, thus, ceased to have any interest in the business of the partnership. These facts clearly indicate that the applicant-plaintiff had asserted his right in the partnership concern as a sole proprietor. Whether such right is correct or not is a matter to be gone into by the learned trial Court on merits and during trial. At this stage the Court is not concerned with the merits of the case but is primarily concerned with the contents of amendment.

It appears that the plaintiff does not wish to change his case and the application has been moved bonafidely. Numerous documents have been placed on record copies of which were produced during the course of hearing, to show that M/s B.S. Contractors is a sole proprietorship concern of the plaintiff. The documents have been placed on record with the intention to show that parties had acted on their agreement. Thus, the amendment would neither alter the basic case of the plaintiff nor would it expose the defendant to face a new case. The execution of the power of attorney and agreement had already been pleaded in the case. Elucidation of the facts in the present manner and as well as withdrawal of a vague admission by providing sufficient explanation is permissible in law.

The learned counsel for the petitioner relied upon judgments of this Court in the case of Kehar Singh v. Balraj Singh and Ors., 1991 Civil Court Cases 419 and Silak Ram and Others Vs. Bhim Singh and Others, , to contend that the application for amendment ought to have been allowed. At this stage it may be appropriate to refer to the observations of Hon''ble Supreme Court of India in the case of Ganesh Trading Co. Vs. Moji Ram, , as under:-

"Procedural Law is intended to facilitate and not to obstruct the Court of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation of particular causes of action must take."

The only reason given by the learned trial Court for declining the application for amendment is that the amendment, if allowed, would change the case of the plaintiff. This reason does not appear to me to be plausible and sound reason for rejecting the application for amendment in the farts and circumstances of this case. The evidence of the plaintiff is still to begin. It was not a case where the plaintiff was trying to fill up the lacunas in his evidence. As already discussed, the above narrated amendments are no way altering or changing the case in its entirety. It does not intend to place on record a total new case which is in conflict or is destructive of the case already pleaded by the plaintiff in Court.

The cumulative effect of the above discussion is that the impugned order dated 18.11.1997 is liable to be set aside which I do hereby order. Consequently, the application filed by the plaintiff under Order 6 Rule 17 CPC is allowed, however, subject to payment of Rs. 1,500/- as costs, costs being conditional. The amended plaint, if not already on record, shall be positively filed by the plaintiff on the next date of hearing before Court.