An amendment of the plaint may be allowed to avoid multiplicity of litigation without changing the essential character of the suit itself.

V. D. BHARGAVA, J.

( 1 ) THIS is a first appeal from an order, remanding the case to the trial Court.

( 2 ) THE plaintiffs had filed a suit for injunction restraining the defendants from preventing the plaintiffs from using and taking sugarcane juice from the tenants. In the alternative it was prayed that account be taken, which was for 1949-60, from the defendants and a decree be passed for the amount in favour of the plaintiffs. The plaintiffs case was that there was a partnership between the plaintiffs and the defendants for the purpose of purchasing sugarcane Juice for making gur from it. The case of the plaintiffs further was that the defendants alone had been collecting the juice and have not paid the profits. The defence, inter alia, was that since the partnership was not registered, the suit was barred by Section 69, Partnership Act.

( 3 ) DURING the pendency of the suit several dates had been fixed. The suit was filed on 28-1-50 and 23-3-50 was fixed for filing written statement. The written statement was filed on 21-4-50. Issues were framed on 17-7-50 and thereafter there were several hearings but the suit was not taken up and ultimately the suit was transferred to another Court. The first date on which actually some hearing took place was 10-5-51. It appears that on that day the defence presspd the issue of want of registration of partnership and consequent incompetency of the suit. A prayer was, therefore, made by the plaintiffs that they be granted time to file an application for amendment of the plaint. Time was granted. On the next date of hearing, i. e. , 12-5-1951, the application was filed and in the application for amendment it was prayed that the relief for dissolution of the partnership may also be granted. It may be noted that 12-5-1951 was specifically fixed by the learned Munsif for consideration of that application alone. On that day the learned Munsif dismissed the application for amendment and also dismissed the suit on the ground that since the partnership was not registered, the suit was not maintainable under Section 69, Partnership Act.

( 4 ) AGGRIEVED with that decision the plaintiffs went up in appeal. The appellate Court allowed the appeal, set aside the order of the Munsif dismissing the suit, allowed the application for amendment and sent the case back for re-trial Against that order the present appeal has been filed. While remanding the case the appellate Court had held that since 12-5-1951 was fixed only for the disposal of the application, the Court had no jurisdiction to dismiss the suit without hearing the argument and it further held that it was proper to allow amendment of the plaint, and since after allowing amendment of the plaint the suit could not be disposed of, he remanded the case.

( 5 ) LEARNED counsel for the appellant has argued that the appellate Court was wrong in considering that 12th May was fixed only for disposal of that application. He relies on the order-sheet dated 10-5-1951 because in it, it is mentioned that some arguments were heard and he says that if some arguments had already been heard then it was open to the Court on the next day to dismiss the suit. On the other hand, learned counsel for the respondent relies on the order-sheet of the dates before, and urges that the date fixed was not for final disposal. No evidence was taken on 10-5-51 nor actually arguments were heard, but the case was adjourned simply for the consideration of the application for amendment. Whatever the position may be, I think it is immaterial. The main question, to my mind, is whether the application for amendment should have been allowed or not. If the application for amendment, in the opinion of the appellate Court, should have been allowed then there was no alternative for the appellate Court but to remand the case. While on the other hand if the application for amendment was not proper then in that case there was no necessity for ordering a remand at all. I would, therefore, confin

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