1987 Supreme(MP) 601

IN THE HIGH COURT OF MADHYA PRADESH
B.C. Varma, J.
Haryana Engineering Co. (M/s) - Applicant
Vs.
Maroti Rao - Non-applicant
C.R. No. 942 of 1985 (J)
Decided On : 18-11-1987

Headnote:Civil Procedure Code, 1908 – O.6, R.17 – no change in cause of action by intended amendment – amendment sought in cause title – rightly allowed.

        Short Note

       This revision is by M/s Haryana Engineering Company through its partner Ratanlal against an order of the lower Court permitting amendment of the application. Originally the defendant in the suit was described as 'Sadhuram Gupta, aged about 50 years, proprietor of Haryana Engineering Company', contractor resident of Dalli Rajnara, Tahsil Balod. Sadhuram entered appearance and denied the suit claim alleging that there has been no transaction between himself and the plaintiff as alleged and that he is not at all liable for the suit claim. The plaintiff, of course, after long delay applied to amend the plaint whereby he has sought to delete the words from the cause title "Sadhuram Gupta, aged about 50 years, proprietor of" and instead adding after the words Haryana Engineering Company "through its partner Shri Sadhuram Gupta, aged about 50 years s/o Late Jai Jiwan Gupta". This application has been allowed by very cryptic order showing practically non – application of mind by the trial Judge. Miss Gupta, counsel for the applicant urged that by this amendment what has been done is a substitution of a new defendant.

       2. Held: Shri N.S. Kale, learned counsel for the non – applicant urged that what has been done by the amendment is only change in the description in the plaint and nothing more. I feel that trial Court should have applied its mind to this controversy before allowing the amendment. All the same from the pleadings and the application for amendment what I find is that he has actually not changed the cause of action. The defendant continues to be the same and the plaints contains still the same cause of action as was originally pleaded. In fact, the plaintiff wanted to sue the concern Haryana Engineering Company through Sadhuram Gupta, whom the plaintiff first thought to be the proprietor of that firm. However, after knowing that the concern was a partner, description was suitably amended. I see no reason why such amendment should not be allowed. If any authority for this proposition is needed, is in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1967. That being so, I am of the opinion that the trial Court committed no error in permitting the amendment of the plaint as claimed.

       3. MiS. Gupta is, however, right in saying that after the amendment was allowed, the defendant should have been given opportunity to suitably amend the written statement. Obviously, that has not been done. The defendant in all fairness should be given an opportunity to amend the written statement. I, therefore, now permit to amend the written statement as may be desired. That may be done before the trial Court within two months from today. After that is done and if the trial Court then feels necessary, additional issues may be framed and settled for trial. AIR 1969 SC 1967 followed. Revision Partly allowed.