Limitation and jurisdiction bars amendment of plaint.

This second Appeal is sought to be preferred against the decree and judgment of the learned District Judge of South Arcot in A.S. No. 168 of 1956, confirming the decree and judgment of the learned District Munsif of Cuddalore in O.S. No. 194 of 1953.

The point of law raised is that the lower appellate Court should have allowed the amendment asked in I.A. No. 449 of 1957 and that the trial Court instead of dismissing the suit should have directed the return of the plaint.

The facts are: The appellant-plaintiff filed the suit for rendition of accounts in respect of the profits of the consolidated partnership of Mask &38; Co., and K.S. Co., and to decree his share of the profits after ascertainment. The plaintiff and his brothers Murad and Sultan were partners of K.S. Co., which had its place of business both at Porto novo and Singapore. Defendants 1 to 8 were partners of Mask &38; Co., at Panruti. K.S. Co., at Porto novo and Mask &38; Co., at Panruti entered into a partnership. Plaintiff’s brother Sultan Maracair died on 14th August, 1928. But the suit partnership between K.S. Co., and Mask &38; Co., continued. After the death of Sultan Maracair, insolvency proceedings were initiated in Singapore Supreme Court against the firm K.S. Co., which had its independent business at Singapore unconnected with the suit partnership. During the insolvency proceedings the plaintiff and his brother Murad for themselves and on behalf of the heirs of deceased Sultan Maracair executed a release deed in favour of Mask &38; Co., and agreed to Mask &38; Co., paying Rs. 5,164-14-11 as representing the interest of K.S. Co., in the joint partnership with Mask &38; Co., to the Official Receiver, Singapore. But subsequently the heirs of Sultan Maricair filed O.S. No. 35 of 1942 and got a decree for dissolution of partnership and for taking of accounts. The Commissioner appointed for the said purpose found that a sum of Rs. 54,784-0-9 was due to the share of Sultan and later there was a compromise decree for Rs. 52,500. The plaintiff came to know of the fraud practised on him and his brother Murad only during the course of the enquiry by the Commissioner. The plaintiff’s case is that he became aware of the fraud practised on him and his brother Murad only on the date of the compromise decree. He filed the present suit ignoring the release deed on the ground that it was void. The respondents-defendants contended that the settlement of the partnership accounts was made after full and complete scrutiny of the accounts of the plaintiff and his brother Murad, that the plaintiff was not entitled to re-open the settlement, that the contention of the plaintiff in O.S. No. 35 of 1942 was that the present plaintiff and his brother Murad were not entitled to represent them and the said contention was accepted by this Court in second appeal, that the release deed was not void but at best only voidable and that the plaintiff should sue to set aside the same and that the plaintiff has no locus standi to maintain the suit as he was adjudged an insolvent.

The learned District Munsif framed several issues on the pleadings but dismissed the suit giving findings on few of the issues which were argued before him. He found that the release deed executed by the plaintiff was voidable and not void, that the suit was therefore not maintainable without setting aside the settlement of accounts and the release deed, that having regard to the value of the release deed the suit was beyond the jurisdiction of the trial Court and that the plaintiff has no locus standi to maintain the suit. Therefore, he dismissed the suit with costs.

Before the lower appellate Court the learned advocate for the appellant did not dispute the finding of the trial Court that the release deed was at best voidable and not void and he conceded that the plaintiff should set aside the release deed. Then the learned advocate for the appellant took time and filed I.A. No. 499 of 1957 to amend the plaint b