Order 1, Rule 10(2) of the Civil Procedure Code cannot be used to substitute a new suit in place of the old one.

Judgement

JUDGMENT :- This appeal is by the Plaintiff. The suit was for recovery of Rs. 7,884.11 from the defendant towards the price of goods supplied plus interest of Rs. 845.00 from 24-10-1966 till 24-11-1967. The story may be briefly stated as follows :-

The Plaintiff is manufacturing Firm located at Chhatrapur and the defendant was a Contractor under the Government for construction of 132 M. V. Line under the Orissa Electricity Board. The Plaintiff was interested in early completion of the K. V. Line, presumably because it was in need of the electricity and therefore agreed to supply to the defendant necessary goods for construction of the M. V. Line with the sole object of speeding up the construction work. It made supplies of various types of goods between 19-10-1966 and 31-3-1967, the total price of which came to Rs. 7,039.11. The Plaintiff also issued bills in respect of the goods supplied which are said to have been received by the defendant. Since no payment was made, the Plaintiff issued the suit notice to the defendant on 18-7-1967. Since the defendant defaulted to pay despite this notice, the present suit was filed for recovery of the aforesaid amount with interest.

2. The defence is one of denial of the entire transaction. The defendant also denies to have received any goods from the Plaintiff-firm.

3. The Plaintiff has sought to prove his case through P. W. 1 and some documents, P. W. 1 is an employee of the Plaintiff-firm in the Account Section. He has proved certain letters and certain bills in proof of delivery of articles to the defendant through one G. V. Ratnam who is said to have signed in token of taking delivery. But P. W. 1 has not properly proved the signature of the said Ratnam because he admits that the documents were signed by Ratnam in presence of the Store Clerk and not before him. Therefore as held by the trial Court, he is not a witness of actual delivery of the articles to the defendant, nor has he witnessed

G. V. Ratnam signing the documents like Exts. 38 to 40. Though he has deposed that G. V. Ratnam is an agent of the defendant, he has been compelled to admit that there is no document with the Plaintiff to show that the said G. V. Ratnam is the agent of the defendant or that he produced any letter of authorisation from the defendant entitling him to receive the articles of which he took delivery from the Plaintiff. He has been further compelled to admit that he has no personal knowledge as to what passed between the General Manager of the Plaintiff-firm and the defendant. His evidence is therefore hearsay. The defendant has examined himself and has denied the factum of G. V. Ratnam being his agent or he having authorised him to receive any article from the Plaintiff. He has further stated that the said G. V. Ratnam is an engineer of Subbarao and Co. of Vijayawada who was in charge of Rusikulya Railway Bridge at Ganjam. There is, therefore, possibility of G. V. Ratnam having received some articles from the Plaintiff-firm for his Principal Subba Rao and Co. That is, however, a mere conjecture. As the evidence stands the Plaintiff has failed to establish that G. V. Ratnam has received articles in question from the Plaintiff and that he received them in the capacity of the agent of the defendant, and, accordingly no liability can be fixed on the defendant on account of such supplies. The finding of the trial Court is that the Plaintiff has failed to prove his case regarding supply of the articles to the defendant and as such the suit is bound to fail. This finding appears to be correct.

4. After the appeal had been filed in this Court, the Plaintiff files an application under Order 1, Rule 10 (2) read with Section 151, Civil Procedure Code praying to implead G. V. Ratnam and M/s. Subba Rao and Co. as party respondents to this appeal and also allow, amendment of the plaint by impleading them as defendants and to modulate the relief portion so as to claim recovery of the suit amount against them pers