FOREMOST DIARIES LIMITED Vs. BANARSI DASS AMAR NATH

JUDGEMENT

(1.) BRIEF facts giving rise to this petition are that the respondent-firm instituted a suit for rendition of accounts and for payment of the amount found due against the petitioners on 4-2-1987 alleging that the former was appointed as agent of the latter and was carrying on sale of the goods of the latter on commission basis. In the written statement, the defendant-petitioners took an objection that no suit for rendition of accounts by an agent against the principal was maintainable. Ultimately, the suit of the plaintiff-respondent was dismissed on 31-10-1989. The plaintiff-respondent preferred an appeal on 22-1-1990. During the pendency of the appeal, the plaintiff-respondent filed an application under Order 6, Rule 17 of the Code of Civil Procedure on 26-3-1991 for permission to amend the plaint and ask for a decree for Rs. 48,723. 13 paisa. The application was contested by the defendant-respondents in appeal. The learned Additional District Judge, Ludhiana, by order dated 30-4-1991 allowed the amendment subject to payment of Rs. 300/- as costs. Aggrieved by the order, the defendants have preferred this revision.

(2.) THE contention of learned counsel for the petitioners is that even though objection regarding maintainability of the suit for rendition of accounts by an agent against the principal had been taken at the earliest possible opportunity, the plaintiff persisted in not carrying out the amendment. It was after more than one year of the riling of the appeal that the plaintiff came forward for seeking amendment. It was submitted that the suit for recovery of a specified amount which allegedly related to the account for the period 1-5-1985 to April, 1986 had become barrred by limitation. The learned counsel, therefore, contended that a valuable right had accrued in favour of the defendants and the defendants could not be deprived of the said right by permitting the amendment. Reliance has been placed on a Division Bench judgment in Chaubey Sushil Chandra v. Raj Bahadur, A. I. R. 1977 Allahabad 259 and a Single Bench decision in Aisha v. State of Jammu and Kashmir, A. I. R. 1978 J. and K. 34. Reference has also been made by the learned counsel to a Division Bench judgment of this Court in Roop Chand Chaudhri v. Smt. Ranjit Kumari, (1990-2) 98 P. L. R. 384.

(3.) THE contention of learned counsel for the respondent, on the other hand, is that the cause of action in the unamended suit as also in the proposed amendment was the same and only the form of the suit was sought to be changed. Reliance was placed on M/s Hem Raj Sharma and Sons, Hamirpur v. M/s Madan Lal Chaman Lal, (1990-2) 98 P. L. R. 624 in which S. S. Sodhi. J. , following an earlier decision of this Court in M/s Bishan Sarup and Brs. v. Smt. Tara Wanti, 1973 Rev. L. R. 780 held that the amendment allowed by the Court below called for no interference. The learned Judge referred to both AIR 1977 Allahabad 259 as well as AIR 1978 J. and K. 34 which have been relied upon by the learned counsel for the petitioners and expressed the view that he preferred to follow the earlier decision of this Court in M/s Bishan Samp's case (supra ). It may be added here that the decision in Roop Chand Chaudhri's case (supra) related to a suit in which initially the prayer was for refund of advance and an equal sum by way of damages and interest on account of alleged breach of agreement of sale within the specified time and by amendment the plaintiff sought to add the relief of specific performance. The view taken by the Division Bench of this Court was that by filing a suit for the recovery of advance and damages, the plaintiff had clearly chosen one of the alternatives and by amendment the other alternative could not be permitted to be pleaded by him. The decision is thus clearly distinguishable from the facts of the case in hand.