Karnataka High Court

Mrs. Anupama H G vs Carmel Granite And Crushers on 8 January, 2025

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                                                   WP No. 14764 of 2019




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 8TH DAY OF JANUARY, 2025

                                     BEFORE
               THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                   WRIT PETITION NO. 14764 OF 2019 (GM-CPC)
            BETWEEN:

                MRS. ANUPAMA H.G.,
                W/O SRI. H.V. SHIVAPPA,
                R/AT SRIRANGA, DVG ROAD,
                VIDYA NAGARA, HASSAN,
                HASSAN DISTRICT-573 201
                                                            ...PETITIONER
            (BY SRI. PRASANNA V.R., ADVOCATE)

            AND:

                CARMEL GRANITE AND CRUSHERS,
                SSALVADORE VILLA,
                CHILIMBI , URWA-MANGALURU,
                REP. BY ITS PARTNER
                MR. ROQUE RONALD PINTO,
                S/O MR. AMBROSE PASCAL PINTO,
Digitally       R/AT PINTO GARDEN, KINNIGOLI,
signed by       MANGALURU, D.K. DISTRICT-574 150
SUVARNA T                                                  ...RESPONDENT
Location:
            (BY SRI. S. RAJASHEKAR, ADVOCATE)
HIGH
COURT OF
KARNATAKA         THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
            CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
            22.03.2019 ON I.A.NO.3 AND I.A.NO.6 IN O.S.NO.85/2016 PASSED
            BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE & CJM,
            MANGALURU, D.K. DISTRICT, VIDE ANNEXURE-A AND ETC.

                  THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
            'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:



            CORAM:    HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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                                               NC: 2025:KHC:451
                                         WP No. 14764 of 2019




                         ORAL ORDER

Aggrieved by the order passed on I.A.Nos.3 and 6 in

O.S.No.85/2016 dated 22.03.2019, by the II Additional Senior

Civil Judge and CJM, Mangaluru, DK District, the defendant is

before this court.

2. The respondent herein has filed a suit for recovery

of money as the partner of Carmel Granite and Crushers,

represented by the plaintiff as its partner. It is the case of the

plaintiff/respondent that there was an agreement between the

plaintiff and defendant for quarrying the granite stones. As per

the agreement dated 12.06.2008, it is between Mrs. Anupama

H. G. and Mr. Roque Ronald Pinto, partner of Carmel Granite

and Crushers and it is signed by both Mrs. Anupama H. G. and

partner of Carmel Granite and Crushers. In view of the

disputes between the parties, a notice was issued calling upon

the defendant to make payment of the amount due to it and

when the defendant failed to return the amount, the present

suit for recovery is filed. The suit is of the year 2016. In the

year 2017 i.e., on 28.02.2017, I.A.No.3 is filed by the

defendant under Section 69 of the Indian Partnership Act, 1932

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stating that the Firm is an unregistered Firm and it cannot

maintain a suit. Thereafter, on 14.12.2018, I.A.No.6 is filed by

the plaintiff under Order VI Rule 17 of CPC seeking amendment

of the plaint wherein they sought for an amendment to delete

'Carmel Granite & Crushers' and insert 'the Partner, Carmel

Granite & Crushers' and to delete para No1 of the plaint and

insert 'the plaintiff is the Partner of Carmel Granite & Crushers'.

It is the case of the defendant that the suit itself is not

maintainable as the Partnership Firm is an unregistered Firm.

Initially, the application filed by the plaintiff under Order VI

Rule 17 of CPC was allowed and no orders were passed on the

application filed by the defendant and the suit was decreed.

The defendant had challenged the same by filing a Regular

Appeal and in the Regular Appeal, the judgment and decree

passed by the trial court was set aside and the matter was

remitted back to the trial court. After remand, the impugned

order came to be passed, whereby the court had dismissed

I.A.No.3 filed by the defendant and allowed I.A.No.6 filed by

the plaintiff.

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3. Learned counsel appearing for the respondent/

plaintiff submits that the court has failed to consider the

application that is filed by the defendant in its proper

perspective. It is submitted that when the suit is filed in the

year 2016 and after the trial has commenced, in the cross-

examination when the plaintiff has admitted that it is an

unregistered Firm, then the defendant has come up with the

I.A. in the year 2017 i.e., on 28.02.2017. After that, on

14.02.2018, i.e., nearly after a year, the present I.A.No.6

under Order VI Rule 17 of CPC is filed seeking amendment of

the plaint. The trial court, by the order impugned, while

allowing I.A.No.6 and dismissing I.A.No.3, observes that in the

cause-title of the plaint, it is mentioned that he is the Partner of

Carmel Granite & Crushers, but in view of his clear admission in

the evidence that the said Partnership Firm is not in existence,

the plaintiff is not permitted to file the suit as a Partner of the

said Firm. On perusal of the agreement and with the clear

admission of PW-1, it is clear that in the individual capacity of

PW-1 only he had entered into agreement with the defendant

and also made payment individually. Therefore, the plaintiff is

not permitted to file the suit or sue the defendant in the

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Partnership capacity. But he is at liberty to sue the defendant

in his individual capacity. The plaintiff at the time of entering

into that agreement, might have entered into the Partnership

Firm, but it does not mean that even after closure of the said

Partnership Firm, he has to sue or proceed with the case under

the said Partnership Firm only. Hence, the court felt it

appropriate to allow the amendment and the court has also

relied on several judgments of the Hon'ble Apex Court. The

court observes that Section 69 of the Indian Partnership Act,

comes into play only when the suit represented by the

Partnership Firm which is not in existence and the court felt

that the said provision do not apply to the facts of the present

case and accordingly dismissed I.A.No.3 and allowed I.A.No.6.

4. Learned counsel appearing for the petitioner/

defendant submits that as per the agreement, the name of the

two individuals is shown. The defendant signed the agreement

in her individual capacity whereas the plaintiff has signed the

agreement as a partner of the company and even the stamp

paper is purchased in the name of the company. It is

submitted that during the course of cross-examination, the

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plaintiff has admitted that the Partnership Firm is not a

registered Partnership Firm. Immediately, the defendant has

come up with the application, i.e., I.A.No.3 that the suit is not

maintainable. Inspite of that, for almost an year, no

application is filed by the plaintiff and the court without

considering all these aspects, particularly the fact that an

application for amendment under Order VI Rule 17 of CPC, just

like that, cannot be allowed after the commencement of the

trial unless and until the due reasons are given by the plaintiff,

has allowed I.A.No.6. It is submitted that the reasoning that is

given by the court with regard to the application under Section

69 of the Indian Partnership Act, is also contrary to law and

contrary to facts. He submits that the court ought not to have

allowed I.A.No.6 filed by the plaintiff and ought not to have

dismissed I.A.No.3 filed by the defendant.

5. Learned counsel appearing for the respondent/

plaintiff submits that the plaint is signed by the plaintiff in his

individual capacity, vakalath is given in his individual capacity

and money is paid in the individual capacity. He submits that

this is just an amendment with regard to the misdescription in

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the plaint and whether it is a Firm or he is a partner of the

Firm, the court has to decide about the amount that is taken

and whether the plaintiff is entitled for the recovery of amount

or not and these kind of technical aspects cannot be

considered. The courts have to look at the substantial justice

to be done to the parties. He relies on the judgment of the

Hon'ble Apex Court in the case of JAI JAI RAM MANOHAR LAL VS.

NATIONAL BUILDING MATERIAL SUPPLY, GURGAON1, particularly

paragraph Nos.6, 7, 8 and 9 which reads as under:

"6. This Court considered a somewhat similar case in Purushottam Umedbhai case A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract. The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription. The application for amendment was rejected on the view that the original plaint was no plaint in law and it was not a case of misnomer or misdescription, but a case of a non-existent firm or a non-existent person suing. In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil

(1969) 1 SCC 869

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Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law, can be corrected and should not be considered to amount to a description of a non-existent person. Against the order of the High Court an appeal was preferred to this Court. This Court observed (at p.

994):

'Since, however, a firm is not a legal entity, the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure. In these circumstances, a civil court could permit, under the provisions of Section 153 of the Code (or possibly under Order 6 Rule 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court h in determining the real question or issue between the parties.'

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These cases do no more than illustrate the well settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.

7. In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal." The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the family in the business name. The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plait it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises:

the plaint must be deemed on amendment to have

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been instituted in the name of the real plaintiff, on the date on which it was originally instituted.

9. In our view, the order passed by the trial court in granting the amendment was clearly right, and the High Court was in error in dismissing the suit on a technicality wholly unrelated to the merits of the dispute. Since all this delay has taken place and costs have been thrown away, because the defendant raised and persisted in a plea which had no merit even after the amendment was allowed by the trial court, he must pay the costs in this Court and the High Court. The appeal is allowed and the decree passed by the High Court is set aside. It appears that the High Court has not dealt with the appeal on the merits. The proceedings will stand remanded to the High Court for disposal according to law on the merits of the dispute between the parties."

6. Relying on this judgment, learned counsel submits

that considering the fact that except the cause-title, the entire

transaction and everything is done by him as an individual and

the court has rightly considered all these and allowed the I.A.

filed by the plaintiff and dismissed the I.A. filed by the

defendant and no reasons are made on to interfere with the

well considered order passed by the court.

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7. Having heard the learned counsel on either side,

perused the materials on record.

8. The undisputed facts in this case are that there was

an agreement between the plaintiff and defendant. The

agreement shows the name of the defendant and the name of

the plaintiff i.e., Mr. Roque Ronald Pinto and it also shows as

Partner, 'Carmel Granites & Crushers'. The stamp paper is

purchased by Carmel Granites & Crushers. It is signed by the

defendant and the partner of Carmel Granites & Crushers.

9. It is the submission by the learned counsel for the

respondent/plaintiff that the amounts are paid by the

individual. The same is denied by the learned counsel

appearing for the petitioner/defendant that even the amount

that is paid is by the Firm. When the agreement itself is signed

by the partner of Carmel Granites & Crushers, the suit is also

filed in the capacity of the partner of Carmel Granites &

Crushers and when this is the stand taken by him and basing

on that as per the agreement, the cause-title is shown. In

these circumstances, it cannot not be said that it is

misdescription of the parties in the cause-title. That apart,

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after the trial has commenced and after an application is filed

under Section 69 of the Indian Partnership Act by the

defendant, nearly after an year, the plaintiff comes up with an

application. Once the trial commences and the party wants to

amend their pleadings, they have to state before the court that

inspite of due diligence they could not have done the same and

it could not be brought to the notice of the court. Here, from

the agreement that is filed and the description that is shown, it

cannot be termed as a misdescription and in the judgment that

is relied on by the learned counsel for the respondent/plaintiff,

the Hon'ble Apex Court has observed that the power to grant

amendment of the pleadings is intended to serve the ends of

justice and is not governed by any such narrow or technical

limitations. While allowing the amendment, it all depends upon

the facts and circumstances of each case. By way of an

amendment, a party cannot be permitted to cover up their

laches and they cannot take away the defence of the other

party. That is not the purport of Order VI Rule 17 of CPC. In

the considered opinion of this court, this is not a misdescription

of the parties, but that description is based on the agreement

and other pleadings. As such, the plaintiff cannot be permitted

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to amend the plaint at the fag end of the trial. Even the

reasoning that is given by the trial Court cannot with stand the

legal scrutiny. A perusal of the order shows that in one

paragraph the court observes that the Partnership Firm is not in

existence, plaintiff is not permitted to file the suit as a Partner

of the said Firm, and again there is an observation that the

plaintiff at the time of entering into the agreement might have

entered in the name of Partnership Firm, but it does not mean

that even after closure of the Partnership Firm, he has to sue or

proceed with the case under the said Partnership Firm. These

two inconsistent findings given by the court cannot go together,

the order of the court is not a well considered one and needs to

be set aside. Accordingly, the court is passing the following :

ORDER

i. The order passed on I.A.Nos.3 and 6 in O.S.No.85/2016 dated 22.03.2019, by the II Additional Senior Civil Judge and CJM, Mangaluru, DK District is set aside. As far as I.A.No.3 is concerned, the matter is remanded to the Trial Court. Consequently, I.A.No.6 filed by the plaintiff is dismissed. The suit is at the fag

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end. In view of the same, the court shall decide I.A.No.3 along with the main suit itself.

ii. As this suit is of the year 2016 and the evidence is already let in, the court shall dispose of the suit within 6 months from the date of receipt of the copy of this order.