P L D 1964 (W (PLP)

The short question involved in this civil revision for decision is whether the trial Court could suo motu direct an amendment of the plaint in a suit instituted on behalf of the firm long after the death of one of its partners and more so in particular when the cause of action has arisen after his death.

2. Admittedly Abdul Ghafoor one of the partners of the firm died on the 14th of April 1958. The cause of action according to the plaint arose on 2nd January 1960, and the suit was instituted on 3rd September 1960.

3. The petitioner took from the very beginning the objection that the snit was not maintainable and the objection touched the very foundation of the case and affected the validity of the suit itself. The plaintiff‑respondents insisted that the suit could proceed in the name of the firm.

4. The trial Court relying on Continental Tyre & Rubber Company, Rawalpindi Cantt. v. Murree Kashmir‑Automobile Store (A I R 1934 Lah. 157) directed the plaintiff to amend the plaint on 21st June 1963. In the reported case the firm consisted of two partners when the cause of action arose and the other partner having severed his connection before the institution of the suit in the name of the firm was considered to be defective, but the defect in the form was allowed to be removed by a slight amendment. The present case is, however, clearly distinguishable inasmuch as one of the partners had died before the accrual of cause of action.

5. A preliminary objection was raised by the counsel for the respondents that the revision is not competent and in this connection reliance was placed on a decision of the Privy Council in N. S. Venkatagiri Ayyanga and another v. The Hindu Religious Endowments Board, Madras (P L D 1949 P C 26). Their Lordships of the Privy Council in that case considered that interference in revision by the High Court on the construction put upon the will by the District Judge was not justified. The present case is, however, clearly distinguishable. In my opinion, it falls under subsection (c) of section 115 of Civil Procedure Code. A somewhat similar question arose in Mst. Murad Khatoon v. Mst. Fattal (P L D 1950 B J 98). In that case Abdul Aziz Khan, C. J. held that "The applications for the amendment of the pleadings introduce a state of facts complete in itself which has to be considered with a view to deciding upon them juridically, and as such the decision of the applications will fall within the definition of a case decided. The conclusion therefore would be that any interlocutory order which has been passed on juridical consideration of state of facts before the Court is the decision of a case within the meaning of section

115. The petitions for revision are entertainable and their decision is subject to the provision of section 115 of the Civil Procedure Code."

6. The Madras High Court in (Chinta) Chandramma v. Gunna Seethan Naidu (A I R 1931 Mad. 542) took the view that: "If the result of ass amendment would be to direct a plaint to be tried which on the face of it, is barred by limitation, the High Court will necessarily interfere in revision for non interference will only multiply proceedings."

7. In view of the foregoing authorities on the point. I am clear in my mind that the present revision petition is competent. The preliminary objection is, therefore, overruled.

8. Learned counsel for the petitioner vehemently contended that in the absence of an application for permission to amend the plaint the Court bad no power to direct an amendment of the plaint suo motu. He cited Hira Ram v. Jemal and others (A I R 1929 Lah. 820) and Mehtab Singh v. Dayal Singh (A I R 1939 Lah. 172) in this connection. Learned counsel for the respondents was unable to cite any authority to the contrary. In A I R 1929 Lah. 820, Hira Ram had instituted a suit claiming that he was in possession of certain land and prayed for a declaration that he was in possession as an owner of the land in suit, and in the alternative, for a decree for possession of the suit land. The defendant in that case did not object to the form of the suit, but the trial Court of its own motion directed "that the plaint of the plaintiff will be treated as one for declara tion and injunction only. His prayer as regards possession be treated as given up and that part to be penned through". It was held by the Lahore High Court that: "The law does not authorise a Court to amend a plaint or even to direct the amendment of the plaint. The Court can only allow the amendment of the plaint and, if the plaintiff chooses not to amend it, the Court has to decide whether the said suit is framed can proceed or not."

9. In Mehtab Singh v. Dayal Singh, the plaintiff' based his claim for possession on his title and was awarded a decree. On appeal by the defendant, the District Judge remanded the case to the trial Court for re‑decision after the plaintiff had been given an opportunity to amend the plaint in such a way as to base his claim on possession and dispossession. It was held by the Lahore High Court that "It is not open to the Court to compel the plaintiff to amend the plaint so as to allege possession and dispossession".

10. In view of the authorities referred to above, I hold that in the case before me in revision the trial Court had no power suo motu to direct the plaintiff‑respondents to amend the plaint.

11. The decision of the second question whether the amendment of the plaint in the case under consideration was legally permissible or not presents the least difficulty. It is well-settled law that on the death of a partner, the partnership shall stand dissolved and the suit instituted in the name of the firm which was no longer in existence could not proceed. See Governor- General‑in‑Council through General Manager E. I. Ry. v. Shri Bharat Tirath Yatra Transport Lucknow, through L. Sri Ram and another (A I R 1945 Oudh 284) and Samorathrai Khetsidas v. Kasturbhai Jagabhai (A I R 1930 Bom. 216).

12. Learned counsel for the respondents, however, contended that by the amendment no new cause of action was introduced and it only furnished particulars regarding the legal representatives of the deceased partner Abdul Ghafoor, and as such, the question of allowing the amendment after the expiry of period of limitation did not arise. I do not agree. The Madras High Court in Yenkatasubbamma v. Pulipulla Reddy and another (A I R 1925 Mad. 917) took the view that "the plaint in a suit cannot be allowed .to be amended so as to bring in a new plaintiff on record when such application is made after the lapse of the period of limitation prescribed for E the suit. If a party is added to a pending suit after the lapse of the period of limitation fixed for the suit the bar of limitation would not be saved".

13. The present case cannot be said to be analogous to Charan Das and others v. Amir Khan and others (A I R 1921 P C 50). The Privy Council laid down in that case that: "Where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as to express the rights which it has been really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself if instituted then would be time‑barred. And though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out weighed by the special circumstances of the case."

14. Learned counsel for the respondents also invited our attention to Niranka Chanrda v. Atul Krishna Ghose and others (A I R 1925 Cal. 67) and Keramat Ali and another v. Muhammad Younas Haji and others (P L D 1963 S C 191) in support of the contention that the Court has the power to grant leave to amend even at the stage of appeal. Nobody has any dispute with this proposition of the law, but, in my opinion, there were no `special circumstances' in the instant case to warrant the course adopted by the trial Court in directing an amendment for which the plaintiff‑respondents never applied either orally or in writing. In the circumstances the question of F allowing an amendment of the plaint by the trial Court did not arise at all. The order passed by the trial Court is, therefore, distinctly illegal and cannot be sustained.

15. On the view that I have taken the revision petition succeeds. The order of the trial Court directing the plaint to be amended is hereby set aside. The petitioner will also get his costs of this revision from the respondents. The trial Court will now dispose of the suit in accordance with law. K. B. A. Petition accepted.