LAXMI NARAIN OIL MILLS Vs. MAMRAJ MUSADILAL

JUDGEMENT

(1.) This revision under Section 115, Civil Procedure Code is directed against the order of a learned Subordinate Judge 1st Class dated 16-12 1967 allowing amendment of the plaint. The plaint had been presented on 9-5-1967 and the application for amendment was made in the Courbelow on 18-10-1967 before the issues were framed. As a matter of fact, on 30-9 1967. the case was adjourned by the trial Court to 18-10-1967 for issuer The revision in this Court was presented on 14 3-1968. though the copy of the Impugned order was obtained on 5-2-1968. The copy was applied for on 11-1-1968.

(2.) The learned Subordinate Judge has observed in his order that the amendment prayed for had been sought at a very early stage and that the defendants could be sufficiently compensated by payment of costs and they would not be taken by surprise. Amendment was allowed in order to avoid multiplicity of suits as the trial Court considered it to be permissible under the Supreme Court decisions.

(3.) The plaint, as originally instituted, was based on the averments that the plaintiff-firm was carrying on business as Commission Agents in Naya Bazar. Delhi and defendant No. 3 had been getting his goods sold in Delhi Market under the commission agency of the plaintiff-firm. Defendant No. 2 was pleaded to be the proprietor of firm-defendant No. 1 M/s, Lakshmi Narain Oil Mills Shamgarh (Madhya Pradesh). Defendant No 3 had instructed the plaintiff that some goods contracted for by him from defendants Nos. 1 and 2 through defendant No. 4 as a broker may be reaching Delhi and the same be kept at the plaintiff's shop for sale in their commission agency Defendant No. 3 did not leave any balance to his credit for adjustment in this transaction and defendants Nos. 1 and 2 sent a consignment of oil cakes-bionla (cotton) to Delhi under cover of a hundi drawn upon the plaintiff for a sum of Rs. 12,050.60 Paise. In February, 1967, when the plaintiff got information of the hundi through the banker, the goods were got inspected at the railway siding and it was found that they were of inferior quality and were not easily and readily saleable in Delhi market. The plaintiff realised that these goods may not fetch advance amount of Rs. 12,050.60. Paise which defendants Nos. 1 and 2 were expecting against this consignment. The plaintiff thereupon informed defendants Nos. 1 and 2 by a telegram dated 10-2-1967 that they should reduce the amount of bundi to Rs. 4000 in order to enable them to cover the advance with the expected sale price and the expenses of sale. The said defendants did not agree and instead insisted that the plaintiff should accept the goods and honour the hundi as if it was a transaction of sale between them and the plaintiff. The said defendants also started alleging that there was a direct contract of sale between them and the plaintiff, but in spite of repudiation by the latter, the said defendants did not agree to accept that position. It was on these averments that the plaintiff prayed for a declaration and injunction.