IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3646 of 2009 Between: Shaikh Ahmed Mohd. …Petitioner A n d M/s Damodardas Haridas and Sons, Rep. by partner Ramnikalal Bhagat Damodardas Secunderabad. …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3646 of 2009 ORDER: This civil revision petition is directed against the order dated 10-07-2009 in I.A.No.1037 of 2009 in O.S.No.190 of 2007, on the file of the III Senior Civil Judge, City Civil Court, Hyderabad, wherein the said application filed by the respondent herein under Order VI Rule 17 CPC for amendment of the plaint by substituting the name of the ‘proprietary concern’ instead of ‘proprietor’ as the defendant, was allowed. 2. Heard both sides. Perused the record. 3. The respondent herein filed the suit against the petitioner for recovery of certain amount allegedly due. The petitioner-defendant filed written statement contesting the suit. After settlement of issues, trial of the suit was commenced. While P.W.1 was being cross-examined, it came to light that the suit was filed against the proprietor individually instead of proprietary concern, represented by the individual. The respondent-plaintiff filed application in I.A.No.1037 of 2009 for amendment of cause title by describing the defendant as ‘proprietary concern’ instead of ‘individual’. The petitioner-defendnat filed a counter opposing the application. The trial Court, by the impugned order, allowed the said application on the ground that the incorrect description of the defendant in the plaint was on account of a bona fide mistake. Aggrieved by the same, the defendant filed the present civil revision petition. 4. Admittedly, the suit was filed against the individual viz., Shaikh Abdul Mohd. In the cause title of the plaint, he was described as partner of M/s SAB Overseas. In the written statement in para 2, the defendant has pleaded that the descriptive particulars of the defendant is wrong. The defendant who was impleaded in the individual capacity specifically pleaded that he never carried on any business with the plaintiff and never purchased any material from the plaintiff and never opened any credit account with the plaintiff and, therefore, he is not liable for the suit amount. He further pleaded that no cause of action arose as against the defendant, as no amount was due and payable by him. In spite of the specific pleading, the plaintiff has not taken any steps to amend the cause title of the plaint or implead the proper and necessary party to the suit. The present application is filed while the cross-examination of P.W.1 is in progress. Even in the present application what is prayed for is that the description of the defendant may be amended as M/s SAB Overseas as a partnership concern situate at Mandi Bazaar, instead of Shaikh Ahmed Mohd. The plaintiff was well aware that he has carried on the business with the firm and according to him the defendant is only a partner of the firm. According to him, even the documents filed by him would disclose that he carried on the business with the firm. When that is so, there is absolutely no explanation as to why he has not filed the suit against the firm. Even after the defendant has specifically pleaded in the written statement that there is no cause of action against him and the description of the defendant is wrong, the plaintiff has not taken any steps to rectify the defect, if any, in the pleadings, in time. The impugned order, however, proceeds on the footing that the proposed amendment is to the effect of substituting proprietary concern in the place of an individual which is not the relief prayed for. The learned Senior Civil Judge appears to have proceeded on the footing that substitution of the individual with the name of the concern of which he is the proprietor would not make any difference. What is prayed for is substitution of the individual with the name of the firm of which he is stated to be a partner. A partnership firm is a distinct legal entity. The question as to whether or not the firm can be added as a defendant in the place of individual partner has not been considered by the trial Court, particularly in the light of the various contentions raised in the counter, including the plea of limitation and the bar of amendment after commencement of trial and the prejudice apprehended by the defendant. The impugned order is, therefore, vitiated by non-application of mind, as the trial Court misdirected itself in dealing with the application. 5. In the circumstances, the impugned order is liable to be set aside and is accordingly set aside and the matter is remitted to the trial Court for fresh disposal of I.A.No.1037 of 2009 by a reasoned order duly considering all the contentions raised by the petitioner-defendant as also respondent-plaintiff and without in any way being influenced by any of the observations made hereinabove. 6. In the result, the civil revision petition is allowed as stated above. There shall be no order as to costs. ______________________ G.V.SEETHAPATHY, J 15th March 2011 Lrkm.