IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2560 of 2009
Bharat Petroleum Corporation Limited, Ranchi ...... Petitioner
Versus
M/s Janardan Prasad Agrawal, Hazaribagh & ors. ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioner : Mr. V. Shivnath, Sr. Advocate
Mr. Mrinal Kanti Roy, Advocate
For Respondent No. 2 : Mr. D.K. Chakraverty, Advocate
th
07/Dated: 28 April, 2011
1.
The present writ petition has been preferred by the original plaintiff in
Money Suit No. 10 of 1997 against an order passed by learned Sub JudgeIV,
Hazaribagh dated 7th February, 2009, whereby, the trial court has dismissed the
application of amendment in the plaint preferred by the present petitioner
(original plaintiff).
2. Having heard learned counsel for both the sides and looking to the facts and
circumstances of the case, I hereby quash and set aside the order passed by
learned Sub JudgeIV, Hazaribagh dated 7th February, 2009 in Money Suit No.
10 of 1997 for the following facts and reasons:
(i) The petitioner is an original plaintiff, who has instituted Money Suit No.
10 of 1997.
(ii) It appears that the written statement was filed by the respondents
(original defendants), wherein, in paragraph 15 it has been stated that the
original defendant no. 1 is not a partnership firm, but, it is a sole
proprietorship firm. Considering these statements in the written statement
filed on behalf of the defendants, an amendment application in the plaint
was moved by the original plaintiff. The said application was preferred on
10th July, 2005. Proposed amendment sought for by the original plaintiff
reads as under:
“Proposed Amendment
1. That in the description of defendant in the cause title page of the
plaint, after the name of defendant No. 1 as “M/s Janardhan Prasad
Agrawal” and before the word ‘firm carried out’ the word “A
partnership” be deleted and in its place the following words be
inserted “proprietorship” and in the same manner the word “in co
partnership” be deleted and further in the third line “and Sri Chandra
Sekhar Prasad” be deleted
2. That in the same page, the name and address of defendant No. 3
from the cause title page of the plaint be deleted.
3. That in para 2 of the plaint, in the second line the word
“partnership” be deleted and in its place’ proprietorship’ be inserted. In
the same line, the words “in copartnership by” be deleted and in its
2
place ‘by its proprietor’ be inserted. In the third line of para 2 of the
plaint the word “and 3” be deleted.
4. That in the 5,6,7 and 8th line of para 2 of the plaint the following
sentence be deleted after full stop (.) “The defendants No. 2 and 3 are
Partners of the defendant No. 1 firm residing at the address mentioned
in the tile above.”
Thus, the aforesaid amendment was sought for by the original plaintiff
on the basis of the written statement filed by the defendants.
(iii) The trial court has lost sight of the fact that the aforesaid amendment
ought to have been allowed. Otherwise, if the suit is allowed and decree is to
be executed, it will create lot of difficulties for the execution of the decree.
(iv) Learned counsel appearing for respondent no. 2 vehemently opposed
this writ petition and submitted that no error has been committed by the
trial court in dismissing the amendment application preferred by the original
plaintiff. Learned counsel for respondent no. 2 further submitted that
original defendant no. 1 is not a sole proprietorship firm, but, it is a
partnership firm. This contention is not accepted by this Court mainly for the
reason that looking to paragraph 15 of the written statement filed by original
defendants, it appears that correctly the amendment application in the plaint
has been moved by the original plaintiff.
(v) Even the evidences of the plaintiff has not started. Looking to the stage of
the trial, the amendment application ought to have been allowed by the trial
court.
(vi) Looking to the nature of the amendment, it cannot be said that by
allowing the amendment application the nature of the suit will be changed.
3. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and
set aside the order passed by learned Sub JudgeIV, Hazaribagh dated 7th
February, 2009 in Money Suit No. 10 of 1997. Amendment application dated
10th July, 2005 preferred by the original plaintiff, which is at Annexure1 to the
memo of the present petition is, hereby, allowed. Looking to the time consumed
after filing of the Money Suit, I hereby direct the trial court to expedite the
hearing of Money Suit No. 10 of 1997 so that it can be disposed of on or before
30th December, 2011.
4. The writ petition is allowed and disposed of.
(D.N. Patel, J.)
Ajay/