GENERAL TRADERS Vs. TAMBHU BISOI

JUDGEMENT

(1.) This application under S.115, Civil P.C. is directed against the order of the Appellate Court refusing the petitioner's prayer for amendment of plaint. The petitioner filed M. S. No.1 of 1977 against Brundaban Bisoi for realisation of a sum of Rs. 4841.08 on Khata account for supply of Mahua flowers and jaggery and other commodities. The said Brundaban Bisoi having died during the pendency of this revision petition, his legal representatives have been substituted in his place. The gist of the petitioner's case was that the plaintiff was a registered partnership firm with Harihar Patra as the managing partner. The opposite party opened a mutual and current account with the plaintiff-firm on 30-1-1963 and used to take commodities on credit from the firm as and when necessary and was depositing money according to convenience which was being adjusted towards the price of the commodities taken by him. The opposite party on 3-2-1968 purchased Mahua flower for the last time worth Rs. 432.28 and last deposit made by him with the firm was Rs. 474.00 on 13-3-1968. Thereafter, the said opposite party stopped all dealings with the plaintiff-firm. Even after several demands as the defendant did not pay up the dues, the plaintiff-firm was compelled to file the suit for realisation of its dues.

(2.) The defendant-opposite party on the other hand pleaded that whenever he had purchased Mahua flower from the shop of the plaintiff, it was on payment in cash. He had neither any credit dealing with the firm nor had opened any mutual current account with it. The defendant took a further ground that the suit was not maintainable as the plaintiff-firm was not a registered partnership firm by the date of the filing of the suit and that the suit was barred by limitation. The trial court by its judgment dated 30-9-1978 dismissed the suit solely on the ground that the plaintiff-firm was not registered under S. 69 of the Partnership Act on 9-12-1970 when the suit was filed and hence the suit was not maintainable as provided under S. 69 of the Act. The findings on all other issues were in favour of the plaintiff.

(3.) The petitioner preferred an appeal (M. A. No. 20 of 1978) in the court of the District Judge, Ganjam-Boudh against the decision of the trial court. In course of the appeal the petitioner filed a petition under O.1 R.10 read with S.151, Civil P.C. seeking to amend the plaint in the following manner :-