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Civil Rivision Application No. 148 of 1960, decided on 22nd May 1961.

Pleadings‑Amendment of plaint‑Belated application‑Act to be disallowed if justice requires otherwise‑Suit for declaration that plaintiff is entitled to benefit arising out of business carried on in evacuee property‑Property later transferred to father of plaintiff under Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958)‑Amendment of plaint allowed so as to turn suit into one for possession‑Civil Procedure Code (V of 1908), O. VI, r. 17.

Rasheeduddin Ahmed and G. Safdar Shah for Applicant.

Naimuddin for Respondents Nos. 1, 3 and 4.

Sadiq Ghulamally for Respondent No. 4.

Dates of hearing : 15th February, 2nd March and 22nd May 1961.

This is an application in revision against an order dismissing an application for amendment of the plaint. The application for amendment was made ruder Order VI, rule 17, C. P. C. The learned Sub‑Judge, First Class dismissed the application admittedly on two grounds, namely, that the application for amendment was not bona fide and secondly that it was a belated one. The facts necessary for the disposal of this application shortly put are these :‑

The applicant had a suit in the High Court at Karachi on 12th December 1955, for declaration that he was entitled to all the benefits accruing to the defendants from the business, for accounts and for injunction to restrain the defendants iron carrying on the business. The plaintiff‑applicant's case is that he had employed defendant No. 1 as Manager of his business known as "THAKERSON". The plaintiff'‑applicant had to go abroad and appointed the defendant No. 1 as general attorney to look after the business. The defendant No. 1 converted the business of Thakerson into a private limited company with defendants Nos. 2 and 3 as partners. The plaintiff‑applicant's case was that the defendant No. 1 had committed a breach of trust in converting the business into a private limited company and taking defendants .Nos. 2 and 3 as shareholders.

2. In the application for appointment of a Receiver by consent of the parties the applicant was allowed a sum of Rs. 750 per month as allowance and the application for Receivership was dismissed. After sometime it would appear the defendants failed to pay the allowance fixed for the plaintiff with the result that the plaintiff was appointed the Receiver of the concern on the 8th May 1957: This was done by the District Court as the suit, after the Karachi Court's Order, was transferred to the District Court in 1956.

3. The application for amendment under Order VI, rule 17 of the plaint was made on 23‑9‑1957. The applicant by this amendment has sought to raise the valuation of the property to one lakh of rupees and to ask for possession of the shop premises.

4. I have given my consideration to the facts and circum stances of the present case and I have come to the conclusion that the application for amendment should have been allowed by the learned Sub‑Judge on certain conditions.

5. The conclusion of the learned Judge that the application for amendment is not bona fide is not justified in the circumstances of the present case. The ground on which the learned Judge held that the application for the amendment was not bona fide is that the applicant having been appointed Receiver of the business wants to joy the income of the property for as long as he can. It is an admitted position that the applicant bas been appointed a Receiver only after the business had stopped. If the plaintiff‑applicant has been able to revive the business so as to make it profitable, it cannot be said that he was acting male fide. If to appellant had been appointed Receiver at the time when the business was running the reasoning of the learned Judge would have force. Moreover, the learned Judge could have put some condition so as to avoid any hardship to the defendants. All rules of Courts are nothing but, provisions to secure administration of justice. It should be the object of the Courts of law to avoid multifariousness of proceedings.

6. So far as the question that the application for amendment is a belated one, it is true that the suit having been filed some tin in 1955, the application was a belated one ; but that itself is no ground to disallow the application if justice otherwise requires. The plaintiff did not pray for possession of the premises at the time when the plaint was filed as the property was evacuee property ft is stated, by Mr. Safdar that the business premises has now been transferred to the father of the plaintiff‑applicant in 1960. The property therefore must have been acquired under section 3 of the Displaced Persons Compensation Act sometime in 1960. As soon as the property is acquired under section 3 it loses its character o evacuee property. The learned Judge in this view of the matter, should have allowed the amendment on certain terms.

7. Mr. Sadiq and Mr. Naimuddin, the learned Advocates for the defendants very strenuously contended that the plaintiff should be removed from Receivership to case the Court allowed the amend ment application.

8. Mr. Safdar, the learned Advocate for the applicant, has stated at the bar that he will now amend the valuation of the suit so as not to exceed the jurisdiction of the District Court.

9. I might have removed the plaintiff from Receivership but considering the fact that the business had closed and it is only because of his efforts that he has been again able to make the concern a running concern, I would not remove him from Receivership. Mr. Naimuddin next contended that the remuner ation that he is drawing comes to about Rs. 1,000 which is too much. In case the defendants succeed this amount will be a loss to them. There is force in this contention of Mr. Naimuddin I would allow the amendment application on the condition that whatever money the plaintiff will draw from the profits of the business from the date of this order onwards will, in case of the failure of the plaintiff‑applicant be treated as assets of the firm. This suit should be disposed of by the learned Sub‑Judge by August 1961.

S. B. Order accordingly.

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