ATMA RAM Vs. JHINOO RAM

JUDGEMENT

(1.) This is a second application by the defendant Atma Ram for revision of an interlocutory order of the trial Court, the first having been dismissed on 14-71952. That was an application directed against an order that the preliminary and the other issues be disposed of together. The present revision is directed against an order dated 28-11-1952 allowing the application of the plaintiff respondent under O. 6, R. 17, Civil P. C., to amend the plaint.

(2.) The present suit was filed by the plaintiff respondent Jhinoo Ram against Atma Ram for recovery of Rs. 5,500/- as unpaid balance of price of opium alleged to have been purchased by the defendant on 17-1-1948. The defendant was sued as gumashta of a licence-holder. The writing on foot of which the suit was filed purports to have been executed by the defendant as gumashta of one Nand Kishore. The defendant pleaded, inter alia, that as he was acting as an agent for Nand Kishore he was not personally liable. Two preliminary issues were framed as to the liability or otherwise of the defendant as gumashta of Nand Kishore. Evidence was produced by the parties on these issues, that led by the plaintiff being to the effect that under a trade usage relating to opium in the former Keonthal State a gumashta was in fact a co-principal with or partner of the party for whom he acted as such. No objection was taken on behalf of the defendant against the production of this evidence. Two applications for amendment of the plaint and other reliefs were thereafter filed by the plaintiff, one on 22-12-1950 and the other on 13-7-1951. As a result of these applications the trial Court allowed the addition of Nand Kishore as a defendant, and it also ordered that the aforesaid preliminary issues and the other issues be disposed of together. The Court further directed the plaintiff to file an amended plaint in the light of this order, which was passed on 88- 1951.

(3.) The fact of the defendant having come up in revision to this Court against a portion of the aforesaid order dated 8-8-1951 and the result of that revision have already been stated. The amended plaint was filed on 9-8-1951 impleading Nand Kishore and making certain fresh allegations against the present defendant petitioner Atma Ram. It is the amendment in respect of these fresh allegations which is the subject matter of the present revision. By this amendment two allegations, which did not find place in the original plaint, were introduced to make the defendant petitioner liable personally: (1) that under a trade usage relating to opium, prevalent in the former Keonthal State a gumashta is personally liable as co-principal with the party for whom he acts as such, and (2) that the petitioner used to enter into transactions relating to opium on his own account and responsibility as Nand Kishore was resident abroad. The second allegation appears to have been framed under Section 230(1), Contract Act. A formal application under O. 6, R. 17, Civil P. C., was also filed by the plaintiff on 12-9-1951 for allowing the said amendments. The amendment was opposed by the petitioner but allowed by the trial Court by an order dated 28-111952. It is against this order that the present revision has been filed.