M PERES AND SONS Vs. PETER ALIAS PURAVATH

JUDGEMENT

(1.) I think that the amendment sought ought to have been allowed even though it involved bringing a new plaintiff on the scene with a new cause of action, a new subject matter, and a new prayer, not, it may be remarked, by way of substitution but by way of addition. All the more so since the application was made at a very early stage of the suit, even before the defendants had filed their written statements; in fact, the written statements have not yet been filed. For, under O.6, R.17 of the Code, the court has a wide discretion in these matters, a discretion which is no longer hampered by the proviso to S.53 of the old Code which said that the plaint shall not be amended so as to convert a suit of one character into a suit of another and of inconsistent character. As laid down by the Supreme Court in P. M. Patil v. K.S. Patil ( AIR 1957 SC 363 ), all amendments ought to be allowed, at any stage of the proceedings, which satisfy the two conditions, (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. These then are the cardinal tests. In the present case no question of limitation arises, and no argument of any prejudice to the defendants by reason of the amendment has been urged before me. The simple question then is whether the amendment is necessary for the purpose of determining the real questions in controversy.

(2.) The suit was brought by the, present 1st plaintiff, a firm, by the name of M. Peres & Sons, as the sole plaintiff. It was a suit against five defendants, principally the 1st defendant who alone seems to be really interested and who alone has chosen to appear. (The remaining defendants may therefore well be ignored and hereafter the 1st defendant will be referred to as merely the defendant). It was in respect of immovable property to which the 1st plaintiff claimed title by reason of a purchase from the 2nd plaintiff company which, in turn, was a purchaser from the defendant. The prayer was for an injunction to protect the possession of the 1st plaintiff, in the alternative, for recovery of possession. Although, as I have said, the defendant has not yet field his written statement it appeared from the contentions raised by him in an interlocutory application for a temporary injunction that his principal defence was that the property in question did not belong solely to the 2nd plaintiff, but by reason of a partnership agreement between himself and the 2nd plaintiff by which a firm called the St. Thomass Estate came into being, became an asset of the firm although until then it belonged solely to the 2nd plaintiff by right of purchase. It also appeared that the 1st plaintiffs answer to this Was that the property itself was not a partnership asset, the partnership agreement being confined to the cultivation of the property (and being unregistered incompetent to effect any transfer of the property) and further that the partnership, such as it was, had already been determined by the 2nd plaintiff in accordance with the terms of the agreement. The controversy then between the 1st plaintiff and the defendant was whether or not the property was a joint asset of the 2nd plaintiff and the defendant or the individual property of the 2nd plaintiff and whether or not the partnership which according to the 1st plaintiff was limited to the cultivation of the property had been dissolved so as to entitle the 1st plaintiff to immediate possession. Now, it seems to me, that if the 2nd plaintiff had independently brought a suit for dissolution against the defendant, the 1st plaintiff could properly have brought himself on record in that suit and, even if the property was found to be partnership property prayed for such equities as flowed from his purchase of a partnership asset from one alone of the partners. What actually happened however was that instead of the 2nd plaintiff bringing an independent suit, two joint applications were made by the plaintiffs on the same day, one for bringing the 2nd plaintiff on record as a supplemental plaintiff, and the other, praying for an amendment of the plaint by asking for certain new reliefs on behalf of the 2nd plaintiff. The 2nd plaintiff wanted an account to be taken of the dissolved partnership between himself and the defendant and a division effected of the partnership assets; in the alternative, he asked for a dissolution of the partnership and for accounts and a division of the assets. The application for impleading the 2nd plaintiff as a supplemental plaintiff seems to have been allowed without notice. But, on the application for amendment, notice was ordered, and, after having heard the defendant, the court below has dismissed the application on the ground that it introduces a new cause of action and a new subject matter. Against this order the two plaintiffs have come up in revision.

(3.) It is not disputed that a joint suit by the two plaintiffs seeking the reliefs which by the amendment they seek could properly be brought. The two plaintiffs can, it would appear, properly join to bring such a suit under the provisions of O.1 R.1; and, if leave were necessary under O.2 R.4, that leave would readily be granted. And under O.1 R.4, judgment could be given for such of the plaintiffs as may be found to be entitled to relief, for such relief as may be entitled to. I would go further and say that if the plaintiffs had, in the first instance, brought such a suit they would only have been obeying the direction in O.2 R.1. Moreover, if the 2nd plaintiff were to bring a separate suit for the reliefs he now seeks by way of amendment the 1st plaintiff could properly be made a party to such a suit. The present suit would, in that event, be virtually part of that suit and, in all likelihood, the two suits would have been heard together. And even if it were found that the property was a partnership asset, the 1st plaintiff could have prayed for the equitable relief of an allocation of the property to the 2nd plaintiffs share. That being so, and it not being the case that the defendant would suffer any prejudice whatsoever by a consolidation of two such separate suits, I fail to see why the separate second suit should not come in by way of amendment to the existing plaint.