LexLAXMIDAS DAHYABHAI KABARWALA versus NANABHAI CHUNILAL KABARWALA AND ORS.
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2 S.C.R. SUPREME COURT REPORTS 567 as to burden of proof governs the additional assessment. In our opinion, this appeal has no substance; it fails and is dismissed with costs. Appeal dismissed. LAXMIDAS DAHYABHAI KABARWALA v. NANABHAI CHUNILAL KABARWALA AND ORS. (S. K. DA.s, A. K. SARKAR and N. RAJAGoPALA AYYANGAR JJ.) Civil Procedure-Amendment of Pleading•-Buit for decree on aettled accaunts-Oounter·claim made in written statement- Court-fee paid a. on plaint-Court if can treat counter-claim a. plaint in cro8'-8uit-Amendment when to be refused or alwwed-P/,ainl in cross-suit when shouUJ, be treated "" having been filed-Liability of aurviving partner-Goodwill of a flrm- Exerciae of discretion by trial court, when can be interfered with- Conatitution of India Art. 136-Partnership Act. 1932 (9 of 1932) s. 37-0od< of Civil Procedure, 1908 (Act Ii of 1908) 0. 6, r. 17, 0. 8, r. 6 The appellant filed a suit for the enforcement of an agreement to the efl'ect that a partnership between himself and one Bai Itcha since deceased had been dissolved and that the partners had arrived at a specific amount to be paid by the appellant in full satisfaction of the share of Bai Itcha in the partnership. The respondents who were the heirs of Bai ltcha, not only denied the allegations in the plaint but also made a counter-claim in the written 1tatement for the rendition of account against the appellent and paid court fee on the counter-claim as on a plaint. At a later stage, the respondents made a prayer to treat the counter- claim a• a plaint in a cross-suit. The trial court dismissed tho 1uit oa the 11rc•uad that appellant had failed to prove the 19~3 Srilekha Bandfjee v. Commission1r of Income-Tax, Bihar & Orissa Hidayatullah J, 1963 Mar<h 27 1963 c.-n;das Dahyabhai Kaba1wala •• Nanabhai ChunUol Kabanoo/o 568 SUPREME COURT REPORTS [1964] VOL. agreement. 'fhc counter-claim \vas also dismissed on the ground that it did not lie and the prayer of the respondents to treat the counter-claim as a plaint in a cross-suit was also rejected, the respondents being asked to seek their relief by filing a fresh suit. The respondents appealed against the order of the trial court but their appeal was dismissed. However, the High Court accepted their appeal and set aside the dismissal vf the counter-claim and remanded the case to the trial court \Vith a direction that the countcr-clai1n be treated as a plaint in the cross-;uit and the reply of the plaintiff to tbe counter-claim be treated as a \Vrittcn statement to the cross-suit and tl1e cross-suit be tried and disposed of in accordance with law. The appellant came t" this Court by special leave. Held (per Das and Ayyangar JJ.) that the order of the High Court was correct and there was no ground for interference with the same under Art. 136 of the C'.<.mstitution. 1here was no miscarriage of Ju~tice. It \vas pi:>intrd out that if what i• rc;,lly a plaint in a cross-suit is made a part of a written statement either by being made an annexure to it or as part and parcel thereof, though described as a counter- claim, there could be no legal ohjection to the court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. However, the appellant was allowed to li'e a fresh written statement. The respondcn'.S were also allowed to file a fresh plaint in place of their counter-claim provided there was no substantial variation in the allegation to be made or the relief to be claimed by them. Held also, that the curcial date for the purpose of determining when the plaint in a cross-suit should be treated as having been filed was not the date on which the conversion was ordered but the date on which the written statement containing the counter-claim was filed. Held also, that save in exceptional cases, leave to amend under Or. 6, R. I 7 of the Code of Civil Procedure will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. This rule can apply only when fresh allegations arc added or fresh reliefs arc sought by way of amendment. However, where an amcndrr.cnt iJ sought which merely clarifies an existing pleading and docs not in substance add to or alter it, it had never been held that the qucatioo of a bar of limitation ii one of the queat
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