Judgment:
ORDER
K.B. Siddappa, J.
1. This Revision is filed against the order passed in I.A. No. 385/94 in O.S. No. 26/91 on the file of the Subordinate Judge, Srikalahasthi.
2. The petition was filed by the plaintiff, to amend the plaint, under Order 6 Rule 17 C.P.C, Originally, the plaint was filed, among other reliefs, for the relief of dissolution of partnership firm consisting of himself and other partners i.e., defendants 1 to 3, 5 and late M.C. Nagaraja, and also for rendition of accounts. In the affidavit filed in support of the petition the petitioner stated that as other partners were playing fraud on him and were causing loss to him, he filed the suit. He wanted to get out of the partnership firm and start his independent rice mill business without entering into any partnership. However, the attitude of the defendants was detrimental to his interests. They were dragging on the proceedings. They were repeatedly going to High Court and obtaining stay of trial of the suit on slightest pretext in collusion with third party namely Cherukuru Munaiah, who is the lessee. He spent lot of amount on the litigation. He fell short of capital to invest in his rice mill business. In view of the changed circumstances he was forced to file the petition for amendment. In the amendment petition he wanted to remain as a partner in the firm. But he prayed alternative relief for a decree directing the defendants to pay Rs. 2,20,000/- towards his share of profits and for rendition of accounts and for appointment of a Receiver, and other reliefs.
3. This petition is resisted by the defendants by filing counter. They stated it is not correct to say that the defendants delayed the proceedings. On the other hand the plaintiff filed number of petitions which compelled them to file proceedings before the High Court. The plaintiff himself is guilty of laches. The defendants filed a Memo into the Court on 8-11-1994 stating 'without prejudice to the rights of D-2, D-3 and D-5 to question the quantum of income and the period of income, they submit to a decree and to a preliminary decree without costs with liberty to determine the liabilities of the parties in final decree proceedings.' Consequently, all the I.As. filed by the petitioner and I.A. No. 361/94 filed by the respondents were dismissed. The Suit was posted on 15-11-1994 for hearing both the sides. On that day the petitioner filed a memo stating that he is not pressing the alternative relief of 'for a declaration that the partnership firm Sri Param Jyothi Kumaraswamy Rice Mills, Srikalahasthi was dissolved on 10-11-90', and a check slip of Court fee was also closed in view of the same. The proposed amendment also changes the nature of the suit Further, the petition is filed after three years of filing of the suit. The memo for preliminary decree was also admitted by the petitioner. In the notice given he only demanded for the relief of dissolution of the partnership, the relief as originally stood in the plaint. At this belated stage, the amendment cannot be allowed. Further, it is not known how Rs. 2,20,000/- towards his share is calculated. The particulars are not given. A separate amount cannot be claimed by the partner unless the partnership is dissolved, and the account was rendered claiming specified amount pending the partnership suit The amendment is also barred by limitation, etc.
4. The learned Subordinate Judge, after considering the rival contentions allowed the amendment, stating that it would not change the nature of the suit. The delay in filing the petition for amendment can be compensated by way of costs and awarded costs of Rs. 100/-.
5. Aggrieved by the (sic) order the present Revision is filed by the defendants.
6. The learned counsel for the Revision Petitioners submitted that originally the suit was filed for dissolution of the partnership and for rendition of accounts. After three years the amendment claiming specified amount towards his share does not arise. It is beyond limitation. Moreover, pending dissolution of the partnership, no specified amount can be claimed. If the amendment is allowed, the suit renders itself not maintainable. Moreover, the defendants filed memo stating that they are ready for preliminary decree. At this belated stage the amendment cannot be allowed. Further, the plaintiff did not give any particulars as to how he arrived at Rs. 2,20,000/- towards his share. Though the plaintiff stated in the plaint that the defendants derived the shares of the plaintiff from 1-11-1990, what are the actual profits, are not mentioned in the amendment petition. In view of this, the amendment cannot be allowed.
7. In support of Ms contention he relied upon the judgment of Full Bench of Madras High Court in T.K.P. Rajagopala Chettiar and Ors. v. A.P.S. Pahni Chettiar and another, AIR 1951 Madras 1101. In that case it was held that a suit by a partner for the recovery of a sum which would be an item in the partnership accounts, cannot be instituted after the dissolution of the firm without a suit for general accounts, or if a right to a general account was barred by the law of limitation. In that case, their Lordships relied upon the judgment reported in AIR 1922 P.C. 115.
8. The learned Counsel also relied upon a judgment of the Madras High Court in Damodara Shanabhaga v. Subraya Pai, AIR 1918 Madras 387. In that case, it was hold that it cannot be said to be an invariable rule of law that no suit against a partner can under any circumstances be maintained for contribution even in respect of a distinct and separate transaction though connected with the partnership business, but in the absence of special circumstances, the rule should not be departed from. It was also held that unless there has been a dissolution of partnership, no suit can be maintained by a partner or his assignee for contribution against the other partners in respect of a partnership debt, and that the assignee could not maintain a suit for contribution against the other partners.
9. He also relied upon a judgment of Himachal Pradesh High Court in Kansi Ram v. Jai Ram and others, .
10. I do not want to express any opinion as to whether the ratio of the above judgments is applicable to the facts of the case on hand, for the present as the suit is still pending. The petitioner did not give particulars as to how he had arrived at Rs. 2,20,000/- towards his share, calculated from 1-11-1990. The petition was also filed after three years after filing of the suit. Moreover, the defendants have filed memo for passing a preliminary decree also in respect of the original relief. At this belated stage, allowing the amendment as prayed for, would cause great prejudice to the other side.
11. In view of this, the Order under Revision is set-aside.
12. In the result, the Civil Revision Petition is allowed and in the circumstances without costs.