SCA/23139/2006 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23139 of 2006 With SPECIAL CIVIL APPLICATION No. 23142 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= SHAH SHARADBHAI A PROPRIETOR SHWETA ENTERPRISES - Petitioner(s) Versus APAR CHEMICALS THRO PARTNER P.K. SHAH & 1 - Respondent(s) ========================================================= Appearance : MR BR PARIKH for Petitioner(s) : 1,MRS REKHA B PARIKH for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MR PR NANAVATI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/12/2008 ORAL JUDGMENT SCA/23139/2006 2/14 JUDGMENT 1. Rule. Shri Acharya, learned advocate appearing for Shri P.R.Nanavati, learned advocate waives service of notice of Rule on behalf of respondent No.1 in Special Civil Application No.23139 of 2006. Though served, nobody appears on behalf of very respondent No.1 in Special Civil Application No.23142 of 2006. Shri Acharya, learned advocate appearing for Shri P.R.Nanavati, learned advocate has stated that they are not appearing in Special Civil Application No.23142 of 2006 on behalf of respondent though the said respondent is the very respondent in Special Civil Application No.23139 of 2006. 2. As common question of law and facts arise and the same are between the same parties arising out of one suit, both these petitions are disposed of by this common judgment and order. 3. Special Civil Application No.23139 of 2006 is filed by the petitioner-original defendant of SCA/23139/2006 3/14 JUDGMENT Summary Suit No.6647 of 2003 pending in the Court of learned Small Causes Court at Ahmedabad for an appropriate writ, order or direction, quashing and setting aside the order dated 28.7.2006 below application Exh.31 in Summary Suit No.6647 of 2003. Special Civil Application No.23142 of 2006 is filed by the very petitioner-original defendant of Summary Suit No.6647 of 2003 pending in the Court of learned Small Causes Court at Ahmedabad for an appropriate writ, order or direction, quashing and setting aside the order dated 28.7.2006 passed below application Exh.36 in Summary Suit No.6647 of 2003 passed by the learned Small Causes Court No.7, Ahmedabad. 4. The facts leading to the present Special Civil Applications in nutshell are that Summary Suit No.6647 of 2003 came to be filed by the original plaintiff “Apar Chemicals” through its partner Mr.P.K.Shah against the petitioner to SCA/23139/2006 4/14 JUDGMENT recover alleged dues of Rs.32,000/- with 24% interest and cost of alleged goods of the chemicals alleged to have been supplied to the petitioner-defendant. It appears that the petitioner-defendant submitted application for leave to defend raising the contention in the defence that the suit by the partnership firm “Apar Chemicals” is not maintainable as the said firm is unregistered. It appears that considering the same an unconditional leave came to be granted in favour of petitioner-defendant. Thereafter during the pedency of the said suit, Shri P.K.Shah, partner of Apar Chemicals who had filed the aforesaid summary suit died during the pendency of the suit. Thereafter the respondent No.2 Shri Himanshu P.Shah, son of Shri P.K.Shah, submitted an application Exh.31 in the aforesaid suit permitting him to be joined as plaintiff in place of Shri P.K.Shah by submitting that after the death of Shri P.K.Shah, he has become the owner of Apar Chemicals Private Limited, and therefore, it was requested to amend the cause SCA/23139/2006 5/14 JUDGMENT title by showing the said Shri Himanshu P.Shah, proprietor of Apar Chemicals Private Limited as plaintiff. The said application was opposed/resisted by the original defendant by submitting that, if such an amendment is permitted to be allowed, the entire nature of the suit would be changed. It is submitted that right from the very beginning it was the contention on behalf of the petitioner-defendant that suit by unregistered firm is not maintainable, and therefore, now if the cause title is permitted to be amended by substituting Shri Himanshu P.Shah in place of Shri P.K.Shah as proprietor of Apar Chemicals Private Limited, in that case entire nature of the suit would be changed and the suit which is otherwise required to be dismissed can be said to be maintainable which is not permissible. 4.1 In the aforesaid suit, one another application Exh.36 came to be submitted by the aforesaid Shri Himanshu P.Shah under Order 6 SCA/23139/2006 6/14 JUDGMENT Rule 17 of the Code of Civil Procedure permitting him to amend the cause title by submitting that the original suit was required to be filed by Shri P.K.Shah as Manager of Apar Chemicals, and in stead of that, by mistake in the cause tile it is mentioned that Apar Chemicals, through its partner Shri P.K.Shah. It is submitted that the said mistake was committed due to ignorance of law, and therefore, it was requested to amend the cause title, and whereever in place of Apar Chemicals, through its partner is mentioned, it should be read as proprietor Shri Himanshu P.Shah, and it was requested to amend the cause title accordingly. The said application Exh.36 was also resisted by the petitioner-defendant by submitting that such an amendment cannot be permitted in view of the fact that if the said amendment is allowed and the said third party Shri Himanshu P.Shah is permitted to amend the cause title, the entire nature of the suit would be changed and the suit which is otherwise required to be dismissed on SCA/23139/2006 7/14 JUDGMENT the ground that the suit is filed by unregistered partnership firm, the same would be maintainable. 4.2 Both the applications Exh.31 and Exh.36 came to be heard, decided and disposed of together by the learned Small Causes Court, Court No.7, Ahmedabad, and by impugned common order dated 28.7.2006 allowed both the applications. 4.3 Being aggrieved and dissatisfied with the aforesaid impugned order passed below Exh.31 and Exh.36 in Summary Suit No.6647 of 2003, petitioner-defendant has preferred present petitions under Article 227 of the Constitution of India. 5. Shri B.R.Parikh, learned advocate appearing on behalf of the respective petitioner has vehemently submitted that the learned trial court has materially erred in allowing the applications Exh.31 and Exh.36 by permitting the third party Shri Himanshu P.Shah to be brought on record in SCA/23139/2006 8/14 JUDGMENT place of Shri P.K.Shah, as proprietor of Apar Chemicals Pvt. Ltd., and also permitting him to amend the cause title by deleting Shri P.K.Shah, as partner of Apar Chemicals Ltd., and in place Shri Himanshu P.Shah, proprietor of Apar Chemicals Pvt. Ltd., to be substituted. It is submitted that the learned trial court ought to have appreciated that the suit has been filed by unregistered partnership firm and right from very beginning in the written statement as well as leave to defend application it was the specific case on behalf of the petitioner-defendant that such a suit by unregistered partnership firm is not maintainable, and even considering the same, the learned trial court has granted unconditional leave to the petitioner. It was further submitted that even issue to that effect has also been framed by the learned trial court. It is submitted that therefore if the third party Shri Himanshu P.Shah is permitted to amend the cause title as prayed for vide applications Exh.31 and Exh.36, in that case the nature of the suit would SCA/23139/2006 9/14 JUDGMENT be changed and the suit which is otherwise not maintainable, in view of the above might be maintainable thereafter, therefore the learned trial court has committed an error in allowing both the aforesaid applications. Therefore it is requested to allow present Special Civil Applications. 6. Special Civil Application No.23139 of 2006 challenging the order passed by the learned trial court below Exh.31 is opposed by Shri Acharya, learned advocate for Shri P.R.Nanavati, learned advocate appearing on behalf of respondent. It is submitted by him that it cannot be disputed that Shri Himanshu P.Shah is not the son of Shri P.K.Shah, who has filed the aforesaid suit, and on his death, he is entitled to pursue the suit as heir of said Shri P.K.Shah. It is submitted that being the son of deceased plaintiff, he has submitted the application Exh.31 under Order 21 Rule 1 of the CPC and therefore the learned trial court has rightly allowed the application Exh.31 SCA/23139/2006 10/14 JUDGMENT permitting him to be joined as plaintiff as proprietor of Apar Chemicals Pvt.Ltd. It is submitted that as rightly observed by the learned trial court if the application Exh.31 is allowed then the nature of the suit would not be changed or no prejudice would be caused to the defendant. It is further submitted that the learned trial court has rightly allowed the application Exh.31 by observing that the amendment as sought by the plaintiff is required to be allowed to settle the dispute between the parties. Therefore it is requested to dismiss the present petitions. 7. Heard the learned advocates appearing on behalf of the respective parties. 8. At the outset it is required to be noted that the original summary suit has been filed by original plaintiff Apar Chemicals through its partner Shri P.K.Shah, and in the rejoinder also the original plaintiff through its partner Shri P.K.Shah has specifically mentioned that Apar SCA/23139/2006 11/14 JUDGMENT Chemicals is a partnership firm and Shri P.K.Shah is the partner of Apar Chemicals. In the leave to defend application as well as in the written statement it is the specific case on behalf of the petitioner-defendant that plaintiff Apar Chemicals is not a registered partnership firm and therefore the suit is not maintainable. It appears that considering the same the learned trial court has granted unconditional leave to the petitioner-defendant. It also appears that even the issue has also been framed that whether plaintiff is a partnership firm? That during pendency of the suit, Shri P.K.Shah, partner of Apar Chemicals has expired and application Exh.31 was given by his son Shri Himanshu P.Shah as proprietor of Apar Chemicals Pvt.Ltd., to permit him to be substituted as plaintiff. In the said suit the third party Shri Himanshu P.Shah also submitted an application Exh.36 for amendment under Order 6 Rule 17 of the CPC to amend the cause title praying to mention Apar Chemicals through its Manager in place of Apar Chemicals SCA/23139/2006 12/14 JUDGMENT through its partner. The learned trial court considered the application Exh.31 under Order 22 Rule 1 of the CPC. However it is required to be noted that said application Exh.31 is not to bring said Shri Himanshu P.Shah as heir of Shri P.K.Shah. The aforesaid application Exh.31 is for altogether a new prayer to substitute the original plaintiff as Apar Chemicals Pvt. Ltd., through its proprietor Shri Himanshu P.Shah. If such an application Exh.31 is allowed, in that case the entire nature of the suit would be changed and the suit which is originally filed by partnership firm through its partner Shri P.K.Shah would now be by Apar Chemicals Pvt. Ltd., through its proprietor Shri Himanshu P.Shah which is not permissible at all. Similarly even the application Exh.36 to permit the said third party Shri Himanshu P.Shah to amend the cause title by deleting the word Apar Chemicals through its partner Shri P.K.Shah and by substituting as Apar Chemicals Pvt. Ltd., SCA/23139/2006 13/14 JUDGMENT through its Manager, if it is permitted, in that case also the entire nature of the suit would be changed and the suit which is originally filed by Apar Chemicals, through its partner Shri P.K.Shah would now be as Apar Chemicals Pvt. Ltd., through its proprietor Shri Himanshu P.Shah which is not permissible. Under the circumstances, the learned trial court has committed an error in allowing both the applications Exh.31 and Exh.36 by which the entire nature of the suit will likely to be changed. Under the circumstances the present petitions deserves to be allowed and the impugned orders passed by the learned trial court deserves to be quashed and set aside. 9. For the reasons stated above, both the petitions succeed. The impugned common dated 28.7.2006 passed by the learned Small Causes Court, Court No.7, Ahmedabad below application Exh.31 and Exh.36 in Summary Suit No.6647 of 2003 is hereby quashed and set aside. Rule is made SCA/23139/2006 14/14 JUDGMENT absolute to the aforesaid extent in both the petition. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/