RAMJOHN MEHOMOODIN Vs. YAHYABHAI ABDUL KAYUM

JUDGEMENT

(1.) THIS is an application for an amendment of pleadings made in rather peculiar circumstances. To his plaint, admitted on March 3, 1945, the plaintiff, who is claiming a dissolution of a partnership between himself and the defendant and consequential reliefs, annexed a document as one on which he would rely, namely, a deed of partnership dated December 18, 1943,

(2.) THIS deed recited that it was thereby mutually agreed and declared that the parties thereto, the present plaintiff and the present defendant, had become partners as and from October 27, 1941, "upon the following terms and conditions. " Clause 9 provided that the working partner (the present plaintiff) should devote his whole time and attention to the partnership business and should not directly or indirectly engage in any other business. The defendant counter-claimed, alleging breaches of Clause 9 or of an antecedent oral agreement, both before and after December 18, 1943. To this counter-claim the plaintiff replied (inter alia) as follows : The plaintiff will rely on a proper construction by this honourable Court of Clause 9 of the said deed of partnership. The plaintiff says that it was specifically agreed between the plaintiff and the defendant that the plaintiff need not devote his whole time to the partnership business and that the plaintiff should be at liberty to engage in any other business of his own. The plaintiff says that the partnership started in October 1941 and the partnership deed was executed on December 18, 1943, During the interval the plaintiff pursuant to the said specific agreement had done separate business on his own. At the time when the said deed was executed the plaintiff objected to the said Clause 9 but the defendant assured the plaintiff-that it was a mere formality and that the plaintiff was at liberty to do business of his own. Relying on the said representation and assurance the plaintiff executed the said agreement.

(3.) THE subject-matter of the suit, as started, was a partnership on the terms of a particular deed; and the subject-matter of the suit as it would be if the amendment was allowed, would be of another and a different nature, and whatever might have been the position if an application for amendment had been made at an earlier date of the suit, (for example, when the counter-claim was first delivered), d do not think it would be right at this very late stage to allow the subject-matter of the suit to be altered by this amendment of the plaint.