THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 3362 OF 2011 Date of Judgment: 1.12.2011 Between: M/s. Srinivas Commission Agent …Petitioner and Jayasri Traders, Commission Agent ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 3362 OF 2011 ORDER: Heard both sides. The plaintiff in OS No. 27 of 2006 on the file of the I- Additional District Judge, Adilabad filed the suit for recovery of Rs.12,29,759.18 ps on the ground that the plaintiff is a registered firm. Since the defendant disputed the said statement, a specific issue was framed about the maintainability of the suit and also as to whether the plaintiff is the registered firm as required under Section 69 of the Partnership Act. After the evidence was led by both sides, the plaintiff has come up with the present application seeking amendment of the plaint on the basis of the subsequent registration of the firm on 18.3.2009 (though in the amended relief the date of registration is mentioned as 8.3.2009). On the basis of the subsequent event of registration, the plaintiff sought amendment of the plaint by adding para 3 (a) and 7 (a) to the plaint with regard to subsequent registration. The plaintiff also sought, by the said proposed amendment, that the period from the date of institution of the suit i.e., 28.11.2006 to 18.3.2009 be excluded under Section 14 of the Limitation Act. The defendant opposed the said amendment, by contending that right from the beginning of the suit, the plaintiff was never diligent and in spite of pointing out by the defendant that the plaintiff was not a registered firm, he proceeded with the suit and led evidence as well and only subsequently the firm has been got registered on 18.3.2009. The Court below, on consideration of the case pleaded by the plaintiff and the defendant, rejected the proposed amendment by taking into consideration the merits of the amendment as well and recorded an opinion with regard to the maintainability of the suit by a firm which was admittedly not registered on the date of suit, but which was registered much later thereafter. The said order is questioned in this revision petition. The learned counsel for the petitioner/plaintiff submits that though the amendment is belated, the legality of the amendment can be gone into by the trial court while deciding the suit itself, whereas the learned counsel for the respondent/defendant contends that the amendment on the face of it raises new questions, inasmuch as, even according to the plaintiff, the firm was closed on 2.3.2003, but surprisingly it is alleged to have been registered on 18.3.2009. The learned counsel also submits that in the absence of diligence of the plaintiff apparent on the record, under the proviso to Order 6, Rule 17 of the Civil Procedure Code, the application for amendment is liable to be dismissed. The affidavit filed by the plaintiff in support of the application shows that the plaint was drafted initially by one counsel and was filed by another counsel at a different place and in the process the vital aspect regarding the verification of the registration of the plaintiff’s firm was lost sight of. The affidavit of the plaintiff states that the aforesaid communication gap between the two counsel who helped the plaintiff file the suit and subsequently when the plaintiff was advised that the registration of the firm was essential, he had secured the registration of the firm only on 18.3.2009 and by then, since the suit had already progressed, the plaintiff was left with no alternative, but to file the present application. The plaintiff undoubtedly has to rely upon the legal advice while instituting the suit and it is difficult to reject the reasons given by the plaintiff, as in all probabilities the situation as narrated by the plaintiff might have resulted in the present position in which the plaintiff finds himself. Whether the suit filed for recovery of the amount, on 18.11.2006 is cured of the defect under Section 69 of the Partnership Act on account of subsequent registration of the plaintiff’s firm, on 18.3.2009 is, however, a matter which needs consideration at the time of disposal of the suit by the trial court and expression of any opinion on the said question including the question as to legality and correctness of the said registration, as raised by the defendant as well as applicability of Section 14 of the Limitation Act to the said suit are, therefore, all matters which the trial Court has to decide at the time of deciding the suit. At this stage, the merits of the amendment cannot be gone into and as such I am of the view that keeping in view the probability of the cause shown by the plaintiff in establishing due diligence, the application for amendment deserves to be allowed but on costs. Accordingly IA No. 390 of 2011 is allowed subject to, however, plaintiff depositing costs of Rs.25,000/- (Rupees Twenty Five Thousand only) payable to the respondent/defendant within two weeks from today, in default the application shall stand dismissed. Consequently, if the plaintiff complies with the said order as to deposit, the trial court shall permit the amendment, take the amended plaint on record, give opportunity to the defendant to file amended written statement, if he so desires and proceed with the trial of the suit by framing additional issues as indicated in this order above and decide the suit as expeditiously as possible. The revision petition is accordingly allowed. However, no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 1.12.2011 NB: CC of order be furnished in three days. /BO/ KR