NARAYANAN CHETTIAR Vs. SUPPIAH CHETTIAR

JUDGEMENT

(1.) This is an application to revise the order of the Temporary Subordinate Judge of Devakotta allowing an amendment of the plaint at the instance of the plaintiffs-respondents herein. The plaintiffs and defendants are Nat-tukottai Chetties and the plaintiffs suit is for dissolution of partnership and other incidental reliefs. The plaintiffs got leave to amend the plaint more than once and on the third occasion they asked leave to amend the plaint by including a relief as regards a firm at Kolalampur, Straits Settlements. The contention of Mr. Rangachariar, for the petitioner, is that the plaintiffs abandoned their claim, if any, in respect of the firm at Kolalampur and they should not now be allowed to include a claim which they deliberately abandoned and secondly that this amendment introduces a new cause of action which would materially prejudice the defendants in their defence and therefore the amendments should not be allowed. The plaintiffs are father and son. Plaintiff 1 is the brother's son of defendant 1. The plaintiffs and defendants are a family of Nattukottai Chetties carrying on business in Burma and other places. The plaintiffs ask for dissolution of partnership of the firm in Burma. I suppose by "firms" they mean the business in Burma and with regard to the business at Kolalampur they state in paras. 9 and 10 of the plaint that monies belonging to the partnership were utilized at Kolalampur and therefore they are entitled to be paid back the amount with interest and certain profits. This allegation was no doubt repeated in paras. 9 and 10 which were reproduced in the two amended plaints filed by the plaintiff. In March 1927 they applied for leave to amend their plaint by including a relief with regard to the firm at Kolalampur and this amendment the learned Temporary Subordinate Judge allowed.

(2.) Now the question is whether the plaintiffs abandoned their claim to relief, if any, in respect of the Kolalampur firm. As I read paras. 9 and 10 of the plaint, I cannot find any words in them to show that they abandoned any claim which they had. What they stated in para. 9 of the plaint was: The plaintiffs have no concern or share in the Kolalampur firm referred to in the said reply notice. The plaintiffs believe that defendants 1, 3, and i have set up that firm without the permission of and without any reference to either plaintiff 1 or anyone else acting for plaintiff 1.

(3.) If the plaintiffs did intentionally or knowingly abandon their claim or any portion of it, no doubt it will not be proper for the Court to allow that claim to be brought into the action very lightly but where the plaintiffs did not give up their claim, but only stated that they had no concern with the partnership at Kolalampur, it cannot be said that they gave up anything which they had. The matter is rendered simple by the fact that defendant 1 himself in his notice sent so far back as 8 September 1924 stated that the Kolalampur business was a part of the business of the family of which the plaintiffs were members. No doubt plaintiff 1 repudiated his share in the partnership by a notice dated 19 November 1924. He did not give up his right. What he said was that it was not a partnership business belonging to the family, but owing to reasons which it is unnecessary for me to detail, he has now chosen to include a relief in respect of that firm. The question is whether the learned Judge has acted without jurisdiction in granting prayer for amendment or acted with material irregularity in granting it. I cannot find either of them in the order made by the learned Judge. Issues have not been settled in the case and the case is only in its early stages. That being so, it cannot be said that the defendants would be prejudiced by granting the amendment prayed for. It would be so at a stage when the case closed or a good deal of evidence on both sides has been adduced.