NARAIN PROSAD MAITY Vs. RAMESWAR ADYA

JUDGEMENT

(1.) THIS appeal is by the plaintiff. His case was that he carried on a partnership business with the two defendants and that in the course of that partnership business he advanced Rs. 40 for the purposes of the business. The business subsequently came to an end. When the plaintiff demanded his money from the defendants they refused to give it. Then a panchait was held, accounts were gone into, and the defendants admitted their liability, though the plaint does not state to what sum the liability was admitted. The plaint, however, stated that there must have been soma profits arising out of the dealing in the money put into the business but that the plaintiff did not know what profits exactly there were and that roughly speaking they would come to Rs. 9. The Munsif decreed the suit. When the matter went on appeal before the Subordinate Judge, the learned Judge held that the suit was not maintainable, referring to Section 265 of the Contract Act, and also on the ground that as there might have been either loss or gain in the course of partnership business the proper form of the suit was one for accounts. It is now argued that Section 265 of the Contract Act has no application because the allegation in the plaint was that the business had already ceased to exist and that the suit simply was to recover something which was due after the accounts had been settled at the panchait. Then the learned Pleader is met with this difficulty that if the suit is one for a sum of money, then by reason of the provisions of Section 102 of the Code of Civil Procedure there will be no second appeal because the suit is one of the nature cognizable by Courts of Small Causes and the amount is under Rs. 500, There would only be a second appeal if the suit came within the description of suits given in Article 29 of the Second Schedule of the Provincial Small Cause Courts Act, 1887. It is argued on behalf of the appellant that the suit comes within the description given in Clause (c) of that Article for a balance of partnership account and as no balance has been struck by the parties or their agents, the exception in Clause (c) will not apply and, therefore, the suit will be one excluded from the cognizance of Small Cause Courts. Here it is not alleged in the plaint that any definite sum was due, also the claim in respect of the profits was an approximate sum. Now, looking at the plaint it cannot, in my opinion, be said to be one for the balance of the partnership accounts. That can be seen if one looks at the date given of the cause of action. The dates given are those of the advance of money and of the closing of the business. So it comes to this that the suit is not one which is included in the provisions of Article 29 and, therefore, prima facie, there will be no second appeal. Faced with this difficulty, the learned Pleader for the appellant now asks that he should be allowed to amend the plaint in such a form as to be a suit for accounts. He asks that he may be allowed to amend the plaint to this effect that accounts may be taken and if any amount is found due to the plaintiff, he may be given a decree for that amount. It seems to me that it is now too late to allow that in this suit. It will be altering the nature of the suit entirely and in a suit for such a petty sum as this, I do not think that any exception should be made to the general principle that amendment should not be allowed where it involves the entire alteration of the nature of the suit.

(2.) THE appeal is dismissed with costs.