A court cannot allow an amendment of the plaint which would change the nature and character of the suit and introduce an additional cause of action, especially when the suit is pending only for drawing up of the final decree and allowing the amendment would occasion a failure of justice and cause irreparable injury to the defendants.

Subhro Kamal Mukherjee, J.

This is a revisional application by the defendants against an order passed by learned trial Judge allowing an application for amendment of the plaint filed by the plaintiffs/opposite parties in a suit, inter alia, for dissolution of partnership business and accounts.

2. On or about September 16, 1968 Sudhir Ranjan Sahoo, since deceased, as the plaintiff, instituted Title Suit No. 608 of 1968 in the City Civil Court at Calcutta, inter alia, for dissolution of partnership and accounts against Mehadir Hossain, since deceased. In the plaint it was alleged that the said plaintiff and the said defendant were carrying on joint business under the name and style 'Bina Electric Stores' at stall No. 48, S. S. Hogge Market, Calcutta on the basis of registered deed of partnership dated January 15, 1961, but disputes and differences arose between the parties making it impossible to carry on the business in partnership any longer.

3. By judgment and decree dated January 30, 1979 the learned Judge, Ninth Bench, City Civil Court at Calcutta decreed the suit on contest in preliminary form and it was declared that the firm stood dissolved on the death of the original plaintiff and the parties were directed to render accounts of the business to each other within ninety days from the date of the decree. In default, however, liberty was granted to the substituted plaintiffs to settle the accounts through appointment of a commissioner or receiver.

4. The defendant preferred F.A. No. 352 of 1979 before this court, but did not proceed with the said appeal. By order dated August 31, 1981 a Division Bench of this court comprising of Chittatosh Mookherjee (as His Lordship then was) and Ram Krishna Sharma, JJ. dismissed the appeal for non-prosection without cost.

It is regrettable that till today the proceeding for drawing up of final decree has not been completed, although the plaintiffs applied for drawing of final decree on or about April 20, 1982.

5. The plaintiffs/opposite parties, in the aforesaid background filed an application for amendment of the plaint under Order 6, Rule 17 of the Code of Civil Procedure; the said application was filed on or about February 26, 1990. In the said application for amendment of the plaint, the opposite parties sought to incorporate the allegations that, in view of the preliminary decree passed in the "present suit, the defendants were liable to vacate the municipal stall in "respect of which the plaintiffs are the recorded licensees and they sought to incorporate prayers for recovery of possession in respect of said stall and for permanent injunction against the defendants to restrain the defendants from causing any obstruction to plaintiffs and their agents in the user and enjoyment of the stalls.

The defendants contested the application by filing a written objection.

By Order No. 72 dated December 7, 1994 the learned Judge, Ninth Bench, City Civil Court at Calcutta rejected the said application.

6. The plaintiffs being aggrieved moved a revisional application under section 115 of the Code of Civil Procedure before this court, which was registered as Civil Order No. 521 of 1995. Debi Prasad Sarkar-II, J. by order dated August 30, 1996 allowed the revisional application and the application for amendment of the plaint was remitted back to the learned trial Judge for deciding afresh in the light of the observations recorded in the said judgment. The said order was passed ex parte.

An application for recalling of the, said ex parte order was filed by the defendants/petitioners, but Debi Prasad Sarkar-II J, by order dated January 15, 1998 rejected the said application for recalling as it was held that no disputed essential point was decided, neither in preliminary form nor in final fonn, in the order dated August 30, 1996 and, therefore, the said order in no way could cause prejudiced to the defendants/petitioners.

In the meantime; however, by the order impugned the learned trial Judge allowed