JASH BEHARI PATEL Vs. JAGNANDAN SINGH

JUDGEMENT

(1.) This is an application in revision by the plaintiff, a registered partnership firm, directed against the order of the lower appellate Court refusing amendment of the plaint. The petitioner filed a money suit in the Court of the Munsif at Daltonganj against the opposite party for realisation of its dues on account of supply of petroleum, lubricating oil motor accessories etc. At one stage, the petitioner by amendment, which was allowed by the trial Court, stated, that the opposite party had entered into a verbal agreement on 10-12-1956 and that whatever goods were supplied to the defendant were entered in the books of account of the petitioner, kept in the regular course of business. The learned Munsif by judgment and decree dated 27-3-1965 allowed the claim of the petitioner to the tune of Rs. 330/67 only, but disallowed a major portion of the claim. It preferred an appeal. During the course of argument, a petition was filed before the lower appellate Court, seeking amendment of paragraph 8 of the plaint as also in regard to the date mentioned in Item (1) of account of claim in the plaint. The learned Subordinate Judge has disallowed the amendment. The petitioner, therefore, has come up to this Court in revision. The opposite party has not appeared to oppose this application.

(2.) It appears from the order passed by the learned Subordinate Judge on the 13th July, 1972 that he was prepared to allow the amendment if the appellant before him was prepared to pay Rs. 1,000 as costs. But because he was not prepared to pay that amount of costs, the petition for amendment, on merits, according to the learned Subordinate Judge, was not fit to be allowed. Such unjudicious approach to the matter must be deprecated. It was the duty of the learned Subordinate Judge to allow the amendment or not to allow it after examining the matter within the well-settled principles of law. He could not ask the party to pay exemplary cost for allowing the amendment. If the amendment was fit to be allowed, the other side could be compensated by awarding a reasonable amount of cost. By no stretch of imagination one could think that in a suit which was valued at Rs. 2.600/- and odd a sum of Rs. l,000/- by way of cost could be allowed.

(3.) Coming to the merits of the amendment, I find that the learned Subordinate Judge has committed an illegality in exercise of his jurisdiction. Paragraph 2 of the plaint had already been amended in the year 1965 and therefore, the date 10-2-1956 had been introduced already. The amendment in paragraph 8, namely, the cause of action was merely consequential. There was no reason to disallow this amendment. It was not changing the nature of the case. Similarly, the change of date from 30-6-1959 to 28-6-1959 in Item No. (1) of account of claim was also merely correcting a clerical mistake. In view of the volume of the evidence discussed in the judgment of the trial Court, it was abundantly clear that this amendment was not changing the nature of the suit, but was merely correcting a clerical mistake, which ought to have been allowed.