HIRALAL BABLISA SHROFF Vs. RAMDAS PURSHOTTAMDAS

JUDGEMENT

(1.) THIS is a revision application against the order of the Court of Smail Causes at Bombay refusing the petitioners' application for amendment of their plaint. On 18th August 1955 the petitioners filed Suit No. 2272/11476 of 1955 in the Court of Small Causes at Bombay against the defendant Opponent to recover a sum of Rs. 2703-1-0 inclusive of interest. It was alleged in the plaint that the plaintiffs had acted as commission agents in respect of certain transactions with the defendant and in connection with those transactions there was an account of the defendant In the account books of the plaintiffs. At the foot of the said account, there remained a balance of Rs. 2,435-3-0 due and payable by the defendant to the plaintiffs and the particulars of that account were annexed to the plaint. The defendant, according to the plaintiffs, failed and neglected to pay the said balance in spite of repeated demands and ultimately plaintiffs, through their advocate's letters dated 8th December 1954 and 22nd March 1955, called upon the defendant to pay the said balance with interest thereon, but the defendant failed and neglected to pay the same or any part thereof. As regards the cause of action, it was stated that the plaintiffs acted as commission agents in Bombay, the orders were placed in Bombay, the transactions were carried out in Bombay and the part payments were also made in Bombay and the balance due by the defendant was also payable in Bombay and, therefore, the cause of action arose in Bombay; but as the defendant resides and carries on business at Raipura in Burhanpur, Madhya Pradesh, leave of the Court was asked for. As regards limitation, paragraph 9 of the plaint staled that plaintiff's claim was in time and was not barred by the law of limitation, as the same was saved due to the last payment made by defendant by Havala on 6th November 1953. The plaintiffs, therefore, prayed that a decree should be passed in their favour against the defendant for a sum of Rs. 2703-1-0 and costs thereon and professional costs and interest on Rs. 2435-3-0 from the date of the filing of the suit till judgment.

(2.) THE defendant filed his written statement on 21st September 1955 and resisted the suit on several grounds. But it is not necessary to state the defences at the present stage. It appears that on 20th January 1958, plaintiff was examined and on the same day the suit was referred to the commissioner for taking accounts, and it seems that on 26th January 1958 the Commissioner commenced his work and submitted his report on 31st January 1959. Objections were taken to the commissioner's report both by the plaintiffs as well as the defendant. On 11th March 1959, plaintiffs filed the present application for amendment of the plaint, principally in two respects, viz. , (1) They wanted in paragraph 2 of the plaint to add after the words "commission agent", the explanation "i. e. Pucca Adatia"; and (2) they wanted to add in paragraph 3 of the plaint, after striking out the words "commission agency" the words "at the foot of the said open, current and mutual account". It appears clearly, therefore, that plaintiffs desired that their claim to recover the amount was to be on the basis of the transactions entered into with them by the defendant not merely as commission agents but as Pucca Adatias; and, secondly, they wanted the account subsisting between them to be described as an open, current and mutual account,

(3.) THIS application for amendment was resisted on three grounds. In the first instance, it was contended that no leave of the Court had been granted for the amended cause of action, secondly, that the amendment would change the relationship between the parties from that of an ordinary Adatia to a Pucca Adatia; and, thirdly, that the amendment would raise questions of limitation.