RADHAKISAN BANIA Vs. MOTILAL BANIA

JUDGEMENT

(1.) 1. The plaintiff brought a suit against the defendant in the Court of the Subordinate Judge, Khandwa. That Court held that the suit was not one for accounts of partnership and returned the plaint for presentation to the Court of Small Causes. That Court appeared to be doubtful as to the validity of the plaint and directed the plaintiff to make what it considered a necessary amendment. This was done but the amendment was subsequently opposed by the defendant and on a preliminary issue the Court held that the amendments which it had inadvertenly allowed was one altering the nature of the suit and ordered the amendment to be struck out and dismissed the suit. Against this order the applicant appears in revision.

(2.) THE facts stated in the plaint were as follows: On 12th January the plaintiff and defendant entered into a partnership with a view to sell grain. The shares were agreed on. They purchased grain from one Devidas Ramratan and the transactions resulted in a loss of Rs. 230. The plaintiff was constrained to settle the bill of Devidas Ramratan on 19th July 1929 when the partnership ceased to exist. The defendant failed to pay his share of the loss, namely, Rs. 147-8-0, and also kept a sum of Rs. 47 to himself. The details of the claim are for a 10 annas share of Rs. 272 paid to Devidas and six annas share in respect of the balance remaining with the defendant after the accounts were closed and interest on the sum. The amendment which the plaintiff was directed to make was to the effect that the accounts were settled between the parties and the defendant agreed to pay his share.

(3.) THE inclusion of this small amount however does make it a suit for a balance of partnership account and the question then arises whether the amendment is one which should have been allowed or no. I am of opinion that the amendment is one which should certainly have been allowed. The plaint as originally presented was one for a specific sum which could only have been ascertained on the striking of a balance and there is no question in the plaint of the partnership being a continuous partnership inasmuch as, reference is clearly made, before amendment, to the amount due when the partnership ceased on a specific dated 19th July 1929, and the fact that on the conclusion of the partnership the outstanding debt of the firm found due to Devidas was paid by the plaintiff. The consequent amendment that the balance had been struck is not one altering the nature of the suit. The suit is one for a balance of the partnership account whether the balance is struck or no. If the balance is struck it is a small cause suit ; if it is not, it is not so triable. The nature of the suit however is the same although the jurisdiction of the Court of Small Causes to try it may be excluded by the fact that the balance has not 'been struck. To insert a claim which has been inadvertently admitted to bring the claim within the jurisdiction of the Court where the plaintiff was directed to seek his remedy (and it must be presumed until the contrary is proved that the claim that the balance was struck is correct) is a legitimate amendment and not one altering the nature of the suit. In any case the order dismissing the suit is incorrect. On disallowing the amendment the Court of Small Causes should have returned the plaint for presentation to the proper Court, and the matter would no doubt have been settled on appeal. As I find that the amendment after having been admitted is incorrectly disallowed, I set aside the order of the Judge of the Court of Small Causes and direct that the suit 'be tried in his Court as the plaint as amended excepts the suit from the prohibition of Article 29, Schedule 2, Provincial Small Cause Court's Act. The non-applicant is absent although served. He will pay the applicant's costs. Pleader's fee Rs. 20.