BISHAN SARUP AND BROS Vs. TARA WANTI

JUDGEMENT

(1.) THIS petition for revision of an order dated the 22nd of March, 1973, passed by shri I. P. Vasisth, Subordinate Judge, 1st Class, Panipat, permitting the plaintiff to amend the plaint has arisen from a suit for rendition of accounts and recovery of amount found due in consequence. The allegations in the plaint were that the plaintiff, Shrimati Tara Wanti, who is the respondent before me, had been making deposits of money from time to time since the year 1965-66 with Messrs. Bishan sarup and others, a firm arraigned as defendant No. 1 and consisting of defendants Nos. 2 and 3 as partners, that the defendants were to pay her interest at the rate of 9 per cent. per annum on the monies deposited with them but that they had refused to account for those monies, and that she believed that a sum of rs. 22,000/- would be found due to her on rendition of accounts. The suit was resisted by the defendants whose case was that the plaintiff had never deposited any monies with them although they did maintain an account in her name of monies deposited with them by her deceased husband named Atma ram who had taken away the entire amount standing to her credit in that account on the 17th of May, 1963, during his lifetime. In her replication the plaintiff denied the correctness of the case set up by the defendants and reiterated the position taken up by her in the plaint. She further alleged that even if her late husband be proved to have deposited the monies in her name, he was not entitled to receive back the same and that her suit was, therefore, liable to be decreed. This replication is dated the 7th of November, 1972. A notice dated the 3rd of November, 1972, purporting to bear the signature of defendant No. 3 and his counsel Shri J. P. Goel was despatched to the address of the plaintiff per registered post on the 21st of November, 1972, and appears to have been delivered to her a day later. It is stated that the amount standing in the account of the plaintiff on the 17th of May, 1969, was Rs. 17,259. 74 which her husband received from the defendants on that date on the representation that it belonged to him. A photo-copy of the notice has been placed by the plaintiff on the record of the trial Court. On the 7th February, 1973, the plaintiff made an application under Section 151 and Rule 17 of Order VI of the Code of Civil Procedure praying for permission to amend the plaint. The main amendment sought the conversion of the suit from one for rendition of accounts and recovery of the sum found due in consequence to one for recover of a sum certain, namely, Rs. 17259. 74 with interest from the 17th of May, 1969, till realisation. The amendment was opposed mainly on the ground that it would effect a change in the nature of the suit and would result in irreparable injury to the defendants because the suit for recovery of a sum certain if brought on the date of the application for amendment would be time-barred. The learned Subordinate Judge noted that if a suit for the recovery of Rs. 17,259. 74 was brought on or after the date on which the application for amendment was made it would be time-barred but held that, that was no reason for refusing the amendment which was in no way calculated to change the nature of the suit but merely sought to assert in the plaint the sum certain which was due to her and of which she had no knowledge earlier. That is why he passed the impugned order by which the defendants feel aggrieved.

(2.) LEARNED Counsel for the defendants-petitioners has vehemently contended that the learned Subordinate Judge was not justified in allowing the amendment because it introduces inconsistent pleas in the plaint. He has drawn my attention to the contents of paragraphs 7 and 8 of the amended plaint and they may be reproduced here with advantage:

(3.) FOR the reasons stated I find no force in the petition which is dismissed. It suffers from such lack of merit that I am inclined to believe that it was filed as a mere dilatory tactic. In this situation I would burden the petitioners with heavier costs than I would have ordinarily done. I, therefore, assess the counsel's fee at rupees 200/ -. The parties are directed to appear before the trial Court on the 3rd of October, 1973.