The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1238 of 2025 (In the matter of an application under Article 227 of the Constitution of India) M/s. Nutrine Confectionary Ltd., Andhra Pradesh, represented through its Executive Director …. Petitioner -versus- Smt. K. Renuka and Another … Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. Kalyan Patnaik, Advocate For Opp. Parties : Mr. S. Sudhakar Rao, Sr. Advocate for O.P. No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 16th December, 2025 B.P. Routray, J. 1. Heard Mr. K. Patnaik, learned counsel for the Petitioner and Mr. S. S. Rao, learned senior counsel for opposite party no.1. 2. Present CMP is directed against order dated 2nd July, 2025 of learned 1st Additional Senior Civil Judge, Cuttack passed in M.S. No.175 of 2008, wherein the prayer for amendment of the plaint has been allowed. CMP No.1238 of 2025 Page 1 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59
Legal Reasoning
3. Present petitioner is defendant no.1. The plaintiff who is opposite party no.1 filed the suit praying for a decree realizing money amounting to Rs.11,78,000/- from the defendant along with interest. The plaintiff has filed the suit in her individual capacity describing her as present opposite party no.1. Paragraph No. 2 of the plaint reads as follows:- (2) That the plaintiff entered into an agreement with the defendant on 1st of April, 2000 being appointed as the cleaning and forwarding agent to act throughout the state of Orissa in order to look after and control the business of the company on commission basis. It is humbly submitted that the plaintiff carries on its business through its firm M/s.Rasi Trade Syndicate having its office at Cuttack.” 4. Now when the suit is at the stage where the plaintiff has filed her evidence affidavit but yet to be cross-examined, she filed a petition dated 16th April, 2025 praying to amend her description as Managing Partner of M/s.Rasi Trade Syndicate along with certain more facts to be inserted at the end of paragraph 2 of the plaint. The schedule of proposed amendment is as follows:- Schedule of proposed amendment (i) In the cause title of the plaint the following be inserted
Legal Reasoning
before the name Smt. K. Renuka. "Rasi Trade Syndicate through its Managing Partner". CMP No.1238 of 2025 Page 2 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 (ii) After last line of paragraph 2 of the plaint following be inserted.' "To be more clear initially plaintiff carried on business in partnership with Smt. K.Babita in the name and style as M/s. Rasi Trade Syndicate and defendant no.l appointed said firm to act as its C & F Agent for the State of Odisha vide agreement dated 01.04.2000. Subsequently said partnership underwent a change in its constitution and plaintiff in partnership with her husband namely K.Uma Maheswar Rao on 10th of November 2004 carried on business in same name. Said fact was intimated to the defendant no.l and it continued business with reconstituted partnership firm.” 5. The learned trial court, with the observation that present amendment is necessary to decide the real controversy between the parties, has allowed the prayer for amendment of the plaintiff by saying that the same shall not prejudice the defendant since the trial is yet to commence. 6. Defendant no.1 challenges the prayer for amendment of the plaint on two grounds. Mr. Patnaik, learned counsel for defendant no.1 (present petitioner) submits that in view of the bar under Section 69(2) of the Indian Partnership Act, 1932, read with Order 30 of the Civil Procedure Code, the plaintiff cannot now seek to change her capacity from an individual to a partnership firm. Secondly, it is further submitted by Mr. Patnaik that though the suit CMP No.1238 of 2025 Page 3 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 is of the year 2008 but the amendment is sought for in April, 2025 without explaining exercise of due diligence on the part of the plaintiff. 7. Conversely, Mr. Rao, learned senior counsel for the plaintiff (present opposite party no.1) submits that it is a simple case where the plaintiff has been mis-described earlier and now by way of amendment the proper representation on behalf of the plaintiff has been corrected. He submits that a change of description is different than the change of status and the present case being an attempt to correct the mis-description of the plaintiff, the bar under Section 69 of the Indian Partnership Act is not attracted. He further submits that since on a different issue regarding jurisdiction of the court the parties were earlier contested and the matter having been finalized before the Hon‟ble Apex Court on 9th February, 2024 and in the meantime the proceedings of the suit having been remained stayed, there was no occasion left on the part of the plaintiff to bring any such amendment prior to that. So in the circumstances present amendment was brought in April, 2025 which cannot be said as delay on her part. Moreover, when the recording of evidence has not CMP No.1238 of 2025 Page 4 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 yet been started there would not be any hindrance to accept the amendment on record. 8. Order 30 of the Civil Procedure Code envisages the procedure in the matter of suits by or against firms and persons carrying on business in names other than their own. Rule 1 thereof postulates that any two or more persons as partner and carrying on business may sue or be sued in the name of the firm. Said Rule 1 reads as under:- Suing “1. (1) Any two or more persons claiming or being liable as partners partners name firm of of in - and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. (2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.” CMP No.1238 of 2025 Page 5 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 9. Section 69 of the Indian Partnership Act, 1932 speaks regarding effect of non-registration of a partnership firm. Sub-section 2 thereof prescribes that no suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. 10. In the case at hand admittedly „M/s.Rasi Trade Syndicate‟ is an unregistered firm. At the same time, Rule 1 of Order 30 requires any two or more persons as partners to sue or be sued in the name of the firm. So when section 69(2) of the Indian Partnership Act prescribes the power to the effect that in order to enforce a right arising from a contract the suit must be filed by a registered firm only or the persons suing must have been shown in the Register of Firms as partners, then the question arises here that whether the plaintiff at the present stage can be allowed to sue the defendant for a money decree being an unregistered firm and representing through an individual alone without bringing the other partner. Of course, this is a matter to be decided on merit by the trial court and not at the present stage in present proceeding. This court is only confined to the boundaries CMP No.1238 of 2025 Page 6 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 of the impugned order with regard to the amendment sought for by the plaintiff and allowed by the trial court. 11. The principle is well settled that a statutory limitation or bar if applies to a fact the same cannot be brought through the amendment unless the same is satisfied. In Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, (2022) 16 SCC 1, it has been held as follows:- “71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, CMP No.1238 of 2025 Page 7 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). 71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time- barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation. CMP No.1238 of 2025 Page 8 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gaginder Kr. Gandhi.) ” 12. Further, it is a well settled principle that, unless the jurisdictional fact is found to be existing, the court will have no jurisdiction at all CMP No.1238 of 2025 Page 9 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 to allow the amendment of the plaint. In Vidyabai and others vs- Padmalata and another, 2009 (I) OLR (SC) 737, it has been observed that; “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the powr of the court. It puts an embargo on exercise of its jurisdiction. The court‟s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 13. In the given facts of the case at hand it is seen that the change of status of the plaintiff from an individual to a partnership firm is visibly attracting the bar under Section 69(2) of the Indian Partnership Act, read with Rule 1 of Order 30 of the CPC. Here it is not the case of the plaintiff that both the partners of M/s. Rasi Trade Syndicate are joined to sue the defendants. It is also seen from the pleadings made in the plaint that, of course the money claimed by the plaintiff from the defendant is by virtue of the contract arrived between them. CMP No.1238 of 2025 Page 10 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 14. Keeping in view all the circumstances and the facts narrated in the plaint as well as the principles of law delineated by the Hon‟ble Apex Court with regard to amendment, the plaintiff cannot be allowed to change her status at the present stage in order to overcome cleverly by way of amendment to change her status from an individual to a partnership firm. Here it is relevant to observe that this court in Afsar Hussein and Another v. Trilokchand Premchand, 1974(2) C.W.R. 1045, has held as follows:- “8. The plaintiffs in this case are two partners, but they do not describe themselves as partners and have made no reference to the firm of four partners carrying on mainly business at Jeypore in the name and style of Kesharichand Umedmal. Though they were two separate persons, the verification in the plaint has been by one partner on behalf of Trilokchand Premchand as if that was a firm. The normal procedure for partners is to file suits in the name of the firm when they want to enforce any rights accrued to them as partners. The use of the name of the firm in any such case is merely a collective way of naming the individuals who are members of the partnership. Order XXX of the Code of Civil Procedure in relation to suits of partnership provides that it is permissible to partners to bring suits against third parties in the name of the firm and it is not necessary that the name of every partner should be mentioned as a party to the suit if the business of the firm is carried on in India. In such a case a suit may be filed in the name of the firm even after the dissolution provided that the cause of action before dissolution of partnership and the fact that one of the partners has died CMP No.1238 of 2025 Page 11 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 before the institution of the suit or even during its pendency does not affect the right. But it is incumbent upon all the partners to join in a suit upon a contract. If a suit is brought by some of them only, it is liable to be dismissed as was held by a Bench of the Oudh High Court in Behari Lal v. Ram Chandra, AIR 1942 Oudh. 335. The suit in this case as laid is, therefore, not maintainable in law and the plaintiff were not entitled to have the benefit of the registration of the firm at Jeypore in the name and style of Kesarichand Umedmal. As already pointed out, the plaintiffs wanted to pass as a firm by the name and style of Trilokchand Premchand.” 15. In the facts of the present case where it is admitted that Rasi Trade Syndicate is an unregistered firm of which the plaintiff is claiming one of the partners and the fact that the plaintiff was initially described as an individual and still the other partner has not joined with the plaintiff to sue against the defendant, the amendment sought for in the present petition with regard to change of description of the plaintiff is not a mere attempt to correct the mis- description of the plaintiff but seen as a clever step taken by the plaintiff to avoid the bar under Section 69 of the Indian Partnership Act. Under such circumstances the amendment sought for by the plaintiff cannot be permitted to be allowed. Thus the impugned order CMP No.1238 of 2025 Page 12 of 13 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 22-Dec-2025 16:31:59 dated 2nd July, 2025 of the trial court is set aside and the CMP is
Decision
disposed of as allowed. M.K. Panda/P.A ( B.P. Routray) Judge CMP No.1238 of 2025 Page 13 of 13