(1.) PLAINTIFFS opposite -parties 1 to 3 filed money -suit No. 3 of 1066 on 2 -1 -1966 for recovery of a sum of Rs. 19,063/ - with interest, or In the alternative for a decree for the said amount or for any other amount which might be found due after rendition of account.
(2.) THEIR case was that they and the Defendant were members of & partnership firm which was dissolved by mutual consent on 31 -12 -1963. Upon dissolution the Accounts have been settled in which a sum of Rs. 24, 245.00 was found due to the Plaintiffs. The Plaintiffs were paid a sum of seven thousand odd out of it, and they tiled the present suit for the recovery of the balance. The plaint was filed without payment of proper Court -fee thereon. They took some adjournments for payment of same, but ultimately tiled an application. On 22 -3 -1966 for Amendment of the plaint by which they Bought to delete the entire relief originally prayed for, and in its stead prayed that the Defendant be directed to file the arbitration agreement and after the same is filed, to appoint an arbitrator. This amounted to converting the suit into an application under Section 20 of the Arbitration Act. All these were obviously done before the Defendant was noticed of these proceedings.
(3.) AS soon 808 the Defendant came to know of it, he filed an application on 15 -9 -1966 under Order 9, Rule 13 Code of Civil Procedure, which was numbered as Misc. Case No. 104/66. That application having been rejected, he came to this Court in Misc. Appeal No. 68/67, which was allowed by R.N. Misra, J. wherein it was held that since the Defendant -Petitioner was not served with notice of the application, the suit should be restored to its file. Thereafter the Petitioner filed an application challenging the amendment allowed as not maintainable. He also challenged the jurisdiction of the Court not only to allow the amendment of the plaint, but also to its lack of jurisdiction to convert a suit into an application under Section 20 of the Arbitration Act. Order 7, Rule 11, Code of Civil Procedure provides that the plaint shall be rejected where the relief claimed is properly valued, but the plaint is written upon paper, in sufficiently stamped, and the Plaintiff on being required by the Court to supply the requisite stamp -paper within a time fixed by the Court bills to do so.