Judgment

KRISHNA IYER, J.:- The suave submissions and sure assertions made by Miss Seita Vaidyalingam, counsel for the appellant, are worthy of a better cause than a shaky challenge in this court to a revisional order by the High Court refusing to demolish a discretionary exercise by the trial court which allowed the amendment of a plaint in a suit for partition by inclusion of the relief of dissolution of partnership together with rendition of accounts and for the plaintiffs share therein. The parties are relations but the fight is bitter, perhaps because the subject matter is financially succulent, being a cinema theatre and a going cinema business. To start with, the plaintiff sought relief by way of partition of his share in the super-structure of the theatre. The claim was contested by the appellant, issues were struck, two years passed, and then the respondent (plaintiff) woke up to the need for an amendment of the plaint in the shape of additional reliefs and supportive averments. The new reliefs proceeded on the footing that there was a partnership of the treatre business in which the plaintiff had a share and the demand now made was to render an account of the cinema business (M/s. Prakash Talkies) from March 1, 1973. It must be mentioned that even in the original plaint there was reference to a partnership arrangement and the plaintiffs share therein although relief on that footing was reserved by separate action. Apparently realising that prolixity of litigation could be avoided and dissolution of partnership could finally separate the parties and quantify their respective shares the amendment was sought.

2. The defendant-appellant furiously opposed the amendment on the ground that the entire character of the litigation was sought to be changed, that what was a partition suit was now re-incarnating as a partnership dissolution action, that the scope of the suit would be materially altered and that pleas available to resist the claim of the plaintiff would be lost to the prejudice of the defendant if the amendment were allowed. Such metamorphosis under guise of amendment was, according to the appellant impermissible.

3. The trial court, in exercise of its discretion, allowed the amendment and the High Court in revision, refused to interfere. In the view of the courts below there was not such a total transformation of the nature of the litigation as to deny the prayer for amendment. On the other hand, the facts were substantially the same; the case of partnership was already present in embryonic form in the original plaint and multiplicity of suits would be avoided by grant of the amendment. "Thus, there is no basis whatsoever for interference and this revision application is hence liable to be dismissed", concluded the High Court.

4. Counsel for the appellant has come up to this Court securing Special Leave and we are free to concede that if pressure of advocacy can win a weak case, success should have greeted Seita Vaidialingam. But when the position of law is so clear, when the jurisdiction of this Court is so exceptional and when the discretion exercised by one court and confirmed by another is not glaringly unjust or illegal, the chances of allowance of an appeal are obviously remote.

5. The arguments urged with vigour by counsel for the appellant were calculated to make out the gross delay on the part of the plaintiff-respondent in seeking amendment, the dubious device of developing a case of partnership and seeking relief thereon while leaving such a cause dormant in the original plaint and the utter untenability of the newfangled version of a partnership. Granting these grounds for the sake of argument, we are far from satisfied that the trial court has been guilty of such misexercised of discretion as to call for this courts intervention. It is well known that amendments of pleadings are within the discretion of the court although judicial discretion is not wild humour. Justice Cardozo, with juristic accuracy and