P MABUSAB Vs. T NAGENDRAPPA

JUDGEMENT

(1.) This is a plaintiffs revision petition. Suit was filed, originally, describing the plaintiff as 'P. Mabusab & Sons., firm repre- sented by its partner P. Mabusab'. A similar statement was made at para-1 of the plaint. The suit claim is for the recovery of certain sum of money, allegedly borrowed by the defendant, evidenced by a promissory note.

(2.) Actually, the firm had been dissolved on 21-10-1979, and Mabusab continued the business as the sole proprietor, under the trade name "P. Mabusab & Sons." Suit was filed in the year 1982. Realising the mistake committed in the description of the plaint, an application I.A.No. IV was filed in December, 1985 in the lower court for the amendment of the plaint, so as to describe the plaintiff as 'P. Mabusab & Sons., by its proprietor, P. Mabusab'. The explanation of the applicant was that, P. Mabusab & Sons, was the trade name, having a 'good will and therefore, he was carrying on the business in the said name and that by inadvertence a mistake was committed in the description of the plaintiff, while preparing the plaint. He further stated that, at the relevant point of time when the promissory note was executed by the defendant, the business was by the proprietary concern.

(3.) The trial court, while rejecting the application, held that, (i) the application was filed nearly three years after the defendant filed his written statement and the plaintiff did not make any sincere efforts to set right the mistake in spite of a plea in the written statement as to the non-maintainability of the suit, because of the non-registration of the firm; in another suit O.S.No. 307/1981 also, the plaintiff claimed to be a partnership firm and the said suit was dismissed as the firm was not a registered firm and even thereafter, the plaintiff did not take any steps to rectify the mistake. It may be noted here itself that there was no material for the court about the averments in O.S. 307/1981 and its dismissal and hence this part of the reasoning has to be ignored as based on no evidence; (ii) valuable right accrued to the defendant by the filing of the suit in the name of a wrong person and hence, the said right cannot be defeated by permitting the amendment.