A. K. Gupta and Sons Vs. Damodar
Valley Corporation [1965] INSC 179 (10 September 1965)
10/09/1965 SARKAR, A.K.
SARKAR, A.K.
DAYAL, RAGHUBAR RAMASWAMI, V.
CITATION: 1967 AIR 96 1966 SCR (1) 796
CITATOR INFO:
R 1968 SC1165 (31) E 1971 SC2177 (10) R 1978
SC 484 (9) R 1985 SC 817 (16) RF 1990 SC 897 (9)
ACT:
Code of Civil Procedure (Act V of 1908), s.
153 0. 2 r. 2 and 0. 6, r. 17--Amendment of plaint-When may be allowed.
HEADNOTE:
The appellant filed a suit against the
respondent claiming a declaration that, on a proper interpretation of one of
the clauses of the contract between them, the appellant was entitled to an
enhancement of 20% over the tendered rates.
The plaint stated, that work had been done
under the contract and that the value of the suit for purposes of jurisdiction
was Rs. 65,000, but as it was a suit for a declaration only, court fees on that
basis had been paid.
The appellant also reserved the right to sue
later for the amount found due. The respondent contested the suit on the ground
that the suit was not maintainable in the form in which it was framed, and
disputing the correctness of the interpretation of the clause suggested by the
appellant stated that it was ever ready and willing and was still willing to
pay the legitimate dues of the appellant. The issue regarding maintainability
of the suit was not pressed by the respondent at the hearing; and the other
issue regarding the interpretation of the clause of the contract having been
decided by the trial court in favour of the appellant, the suit was decreed and
leave was granted under
0. 2, r. 2, Civil Procedure Code, 1908, to
sue later for the amount due. On appeal the issue as to maintainability was
resuscitated and the High Court decided it in the respondent's favour because of
the proviso to s. 42 of the Specific Relief Act, 1877, and also held that the
trial court was not right in granting leave under 0. 2, r. 2. The High Court
rejected a petition for amending the plaint by including a prayer for a decree
for Rs. 65,000 or such other amount as may be found due on proper account being
taken then made by the appellant on the ground that the claim for money was
time-barred long before the petition for amendment was made, and because there
were no special circumstances justifying the grant of the amendment.
HELD : (Per Sarkar and Ramaswami,JJ.) (i) If
there was any case where the respondent was not entitled to the benefit of the
law of limitation, the instant case was that one. It was a case in which the
claim for money was in substance in the plaint from the beginning though it had
not formally been made and so the respondent could not legitimately claim that
the amendment would prejudicially affect his right under the law of limitation,
for really he had no such right. [801 A-C] A party is not allowed to set up a
new case or a new cause of action by amendment, but it is well recognised that
where the amendment does not constitute the addition of a new cause of action
or raise a new case,, but amounts to no more than a different or additional
approach to the facts already on the record, the amendment will be allowed even
after the expiry of the statutory period of limitation. The expression
"new cause of action" in this context means, a new claim made on a
new basis constituted by new facts, and "new case" means a new set of
ideas. [799 F-H; 800 B-D] The amendment was necessary for a decision of the
real dispute between the parties which was : what were their rights under the
contract; and that dispute was clearly involved in the plaint as originally
framed.
7 97 It was the contract which formed the
cause of action on which the suit was based and the amendment sought to
introduce a claim based on the same cause of action, that is, the same contract
and introduced no new case or facts.
Indeed, the facts on which the money claim
sought to be added was based, were not in dispute, and the absence of details
of work was not a legitimate ground for refusing the amendment. The respondent
had notice of the amount of claim, was fully aware that the ultimate object of
the appellant in filing the suit was to obtain payment of that amount, and had
specifically expressed in the written statement, its willingness to pay the appellants
legitimate dues. [800 F-H 802 C, D-E] I. T. Leash & Co. v. Jardine Skinner
& Co. [1957] S.C.R.
438; Pirgonda Hongonda Patil v. Kalgonda
Shidgonda Patil, [1957] S.C.R. 595.
Charan Das v. Amin Khan, L.R. 47 I.A. 255,
applied.
Per Raghubar Dayal, J. (Dissenting) : An
amendment which would enable a plaintiff to make a claim which has become time
barred is as a rule to be refused and the Court would exercise its special
power to allow such amendment only when there are special circumstances in the
case. Such special circumstances can be said to exist only when the amended
claim was at least intended to be made by the plaintiff who had given in the
plaint all the necessary facts I,,) establish the claim but had, due to clumsy
drafting, not been able to express himself clearly in the pliaint and to couch
his relief in the proper legal form. Such circumstances justify an amendment
not really as a judicial concession to the plaintiff to save him from any
possible loss but on the ground that the original claim in the plaint, though
defectively stated, really amounted to the claim sought to be made by the
amendment, so that, it does not in reality offend against the law of limitation
but serves the interests of justice. [813 H; 814 A-C] The plaint gave none of
the facts which were necessary for getting a decree for Rs. 65,000 or which
might justify a decree for accounting To allow the amendment of the plaint
would necessity lead to a further request for furnishing details about the work
done and the defendant being afforded an opportunity to put in a further
written In fact it would necessitate a de novo trial on the question as to the
amount due to the plaintiff. When the plaintiff could not get the relief of the
amended claim on the facts mentioned in the plaint as originally filed, the
cause of action for a decree for Rs.65,000 was different from the cause of
action on which the suitor declaration was founded. It could not be said that
the plaintiff intended to sue the defendant for the recovery of Rs. 65,000 but
failed to express himself clearly in the plaint and that therefore he should be
allowed to make the plaint precise and clear in that regard. The fact that he
reserved his right to sue for the amount indicates that he did not intend to
sue for the amount; and the fact that the trial court gave him leave to sue
later does not justify the amendment, because leave can be given by the court
under 0. 2, r. 2 only which the plaintiff omitted to sue for a certain relief
arising out of the same cause of action. [814 G; 815 B-D, F, G-H-, 816 A-B]
(ii) Per Raghubar Dayal, J : The High Court was not in error in allowing the
respondent to raise the objection as to the maintainability of the suit on
account of the appellant not asking for further relief. [806 C] It was incumbent
on the trial court not to make a declaration unless further relief had been prayed
for even if the objection was not raised by the party. Further ,it could not be
said that the objection was not raised by the respondent in the trial court
merely because it did riot press the contention. [805 H; 806 A-B] 798
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 18 of 1963.
Appeal from the judgment and decree, dated
January 19, 1961 of the Patna High Court in Appeal from Original Decree No. 253
of 1955.
Niren De, Additional Solicitor-General and D.
N. Mukherjee for the appellants.
Kanhaiyaji and S. P. Varma, for the
respondent.
The Judgment Of SARKAR and RAMASWAMI JJ. was
delivered by SARKAR J. RAGHUBAR DAYAL, J. delivered a dissenting Opinion.
Sarkar, j The question raised in this appeal
is whether the High Court was in error in refusing permission to the appellant
to amend its plaint. We think it was.
The appellant had done work for the
respondent under a contract which only specified the rates for different
categories of work. The contract contained the following clause : "This
quotation is based on prevailing labour rate of Rs. 1-4-0 per cooly but if
there is increase of labour rate of more than 10% in any particular month, the
proportionate increase in rate will be charged". Subsequent to the making
of the contract there was an increase in the labour rate per cooly by 20%. The
appellant claimed that under the clause it was entitled to the whole amount of
the increase while the respondent contended that it was entitled to a part of
it only. This was the only dispute between the parties in respect of the
contract. There was no other dispute either concerning the quantity or quality
of the work done or otherwise howsoever.
The appellant filed a suit against the
respondent only claiming a declaration that on a proper interpretation of the
clause it was entitled to an enhancement of 20% over the tendered rates as the
sole difference between the parties was about the interpretation. The plaint
stated that work had been done under the contract and that the value of the
suit for purposes of jurisdiction was Rs. 65,000, but as it was a suit for a
declaration only court fees on that basis had been paid. The respondent in its
written statement challenged the appellant's interpretation of the clause but
did not dispute any material fact or that the only dispute was about the
interpretation. The written statement concluded by saying that the respondent
"was ever ready and willing 799 and is still ready and willing to pay the
legitimate dues to the plaintiff." Before the learned trial Judge several
issues were raised but it is necessary to mention only two. One issue was as to
the maintainability of the suit in the form in which it had been framed and the
other issue was as to the proper interpretation of the clause. The first of
these issues was not pressed at the hearing. The other issue having been
decided by the trial Court in favour of the appellant, the suit was decreed.
The other issues which had been raised, had also not been pressed. The Court
had further given the appellant leave under 0. 2 r. 2 of the Code of Civil
Procedure to sue later for the amount due under the contract.
The respondent then went up in appeal to the
High Court at Patna. There the issue as to the maintainability of the suit was
resuscitated and pressed and it was decided in the respondent's favour because
of the terms of the proviso to s. 42 of the Specific Relief Act, 1877. The
correctness of this view is not challenged in this Court. In the result the
High Court dismissed the suit.
Now, the appellant bad in view of the High
Court's decision as to the maintainability of the suit, sought its leave to
amend the plaint by adding an extra relief in the following words : "That
a decree for Rs. 65,000 or such other amount which may be found due on proper
account being taken may be passed in favour of the plaintiff against the
defendant".
The amendment having been refused the present
appeal has been preferred.
It is not in dispute that at the date of the
application for amendment, a suit for a money claim under the contract was
barred. The general rule, no doubt, is that a party is not allowed by amendment
to set up a new case or a new cause of action particularly when a suit on the
new case or cause of action is barred : Welch v. Neale.(1) But it is also well
recognised that where the amendment does not constitute the addition of a new
cause of action or raise a different case, but amounts to no more than a
different or additional approach to the same facts, the amendment will be
allowed even after the expiry of the statutory period of limitation : see
Charan Das v. Amir Khan (2) and L. J. Leach & Company Ltd. v. Jardine Skinner
and Co.(") The principal reasons that have led to the rule last mentioned
are, first, that the object of Courts and rules of procedure is to (1) 19
Q.B.D. 394.
(3) [1957] S.C.R. 438.
(2) L.R. 47 I.A. 255.
800 decide the rights of the parties and not
to punish them for their mistakes (Cropper v. Smith) (1) and secondly, that a
party is strictly not entitled to rely on the statute of limitation when what
is sought to be brought in by the amendment can be said in substance to be
already in the pleading sought to be amended Kisandas Rupchand v. Rachappa
Vithoba(2) approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil(3).
The expression "cause of action" in
the present context does not mean "every fact which it is material to be
proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill(1)
in a ,different context, for if it were so, no material fact could ever be
amended or added and, of course, no one would want to change or add an
immaterial allegation by amendment. That expression for the present purpose
only means, a new claim made on a new basis constituted by new facts. Such a
view was taken in Robinson v. Unicos Property Corporation Ltd.(") and it
seems to us to be the only possible view to take. Any other view would make the
rule futile. The words "new case" have been understood to mean
"new set of ideas" : Dornan v. J. W. Ellis & Co. Ltd.(1).
This also seems to us to be a reasonable view
to take. No amendment will be allowed to introduce a new seat of ideas to the
prejudice of any right acquired by any party by lapse of time.
Now, how does the present case stand on these
principles ? Does the amendment introduce a new cause of action or a new case?
We do not think it does. The suit was on the contract. It sought the interpretation
of a clause in the contract only for a decision of the rights of the parties
under it and for no other purpose. It was the contract which formed the cause
of action on which the suit was based. The amendment seeks to introduce a claim
based on the same cause of action, that is, the same contract. It introduces no
new case or facts. Indeed the facts on which the money claim sought to be added
is based are not in dispute. Even the amount of the claim now sought to be made
by amendment, was mentioned in the plaint in stating the valuation of the suit
for the purpose of jurisdiction. The respondent had notice of it. It is quite
clear that the interpretation of the clause was sought only for quantifying the
money claim. In the written statement the respondent specifically expressed its
willingness to pay the appellant's legitimate dues which could only mean such
amount as might be (1) (1884) 26 Ch. D. 700,710-1 (2) (1909) I.L.R. 33 Bom.
644, 651.
(3) [1957] S.C.R. 595, 603 (4) (1873) L.R. 8
C. P. 107,116 (6) [1962] 1 All E.R. 303.
(5) [1962] 2 All E.R. 24.
801 due according to the rates applicable on
a proper interpretation of the clause. The respondent was fully aware that the
ultimate object of the appellant in filing the suit was to obtain the payment
of that amount. It was equally aware that the amount had not been specifically
claimed in the suit because the respondent had led the appellant to believe
that it would pay whatever the court legitimately found to be due. It in fact
said so in the written statement. If there was any case where the respondent
was not entitled to the benefit of the law of limitation, the present is that
one. The respondent cannot legitimately claim that the amendment will
prejudicially effect his right under that law for really be had no such right.
It is a case in which the claim for money was in substance in the plaint from
the beginning though it had not formally been made.
This, therefore, seems to us to be
preeminently a case for allowing the amendment. The authorities also lead us to
the same view. In L. J. Leach & Co.s case(1) a suit for damages for
conversion was by amendment allowed to be converted into a suit for damages for
breach of contract after that claim had become barred, the necessary facts as
in the case in hand, being already in the plaint. In Charan Das's case(2) an
amendment adding a claim for possession after a suit for such claim had become
barred was allowed in a suit which originally had only claimed a declaration of
a right to preempt. In the last mentioned case, the plaintiff bad in spite of
warning at the earliest stage refused to make the amendment which he later
sought and got. It was, therefore, a case where the plaintiff had initially
deliberately refused to make a claim and an amendment being allowed later
permitting that claim to be raised after it had become barred. It was in a
sense a stronger case than the present one where the plaintiff had omitted to
make the claim initially on a wrong notion and a wrong legal advice.
Punishing of mistakes is, of course, not
administration of justice.
It is true that the plaint does not set out
the details of the work done. But there never was any dispute about them.
Indeed the respondent had prepared a final
bill of the appellant's dues for the work done under the contract and the
appellant had accepted that bill as correct except on the question as 'to the
proper rate chargeable under the clause. Strictly the details of the work done
were not necessary in the plaint for it would be a waste of time of a court to
go into them, it not being unusual to direct an enquiry by a Commissioner or a
subordinate officer about such (1) [1957] S.C.R. 438 (2) I.R.
47. LA. 255.
L8Sup.C.1.165-8 802 details when, as in the
present case, the items of work done are innumerable. It would be enough in
such cases to file the details before the authority making the enquiry.
Besides, in Pirgonda Hongonda Patil's
case(1), in a suit for a declaration of title, this Court permitted an
amendment setting out the detailed facts on which the title was claimed after
the suit had become time barred. The absence of the details of the work does
not furnish a legitimate ground for refusing the amendment.
It may be that as a result of the amendment,
if the respondent chooses to raise a controversy about the work done, that is,
about the quantity, quality and other things concerning it, which it had never
raised so long, the matter will have to be gone into. That again would not
justify a refusal of leave to amend. It would not mean any waste of time or
money or any duplication of work. That investigation would now be made for the
first time and nothing done so far would become futile. Such an enquiry was
indeed directed in L. J. Leach & Co.'s case(2).
The amendment sought is necessary for a
decision of the real dispute between the par-ties which is, what are their
rights under the contract ? That dispute was clearly involved in the plaint as
originally framed. All the necessary basic facts had been stated. Only through
a misconception a relief which could be asked on those facts had not been
asked. It would not have been necessary to ask for it unless the respondent had
at a late stage taken the point that the suit should fail without more in the
absence of that relief. We find the present case indistinguishable from Charan
Das's case(3).
We would for these reasons allow the appeal.
The case would go back to the High Court with a direction to it to allow the
amendment sought and then to decide the correct interpretation of the disputed clause
and thereafter, if the occasion arose, to ascertain the amount due by a proper
enquiry to be made either by the High Court or by the trial Court as the High
Court may think fit. The High Court may, if the appellant asks for it, also
allow an amendment setting out the particulars making up the claim of Rs. 65,000
introduced by the amendment, that is, quantity, rate etc. of the work done. The
appellant will get the costs in this Court. The question of subsequent costs
will be decided by the High Court. The judgment of the High Court in so far as
it refused the amendment is set aside but the rest of that judgment will stand.
(1) [1957] S.C.R. 595.
(3) L.R. 47 I.A. 255.
(2) (1957) S.C.R, 438.
803 Raghubar Dayal, J. This appeal, on
certificate granted by the High Court of Patna, is against the judgment and
decree dismissing the appellant's suit for a declaration on the ground that the
plaintiff had not asked for consequential relief. The High Court rejected the
application presented to it for amendment of the plaint. The question for
determination is whether the High Court was right in rejecting the application
for amendment.
The plaintiff sued for a declaration that it
was entitled to enhancement of 20% over the tender rates for the different
categories of excavation work as detailed in para 13 of the plaint in
connection with the work of excavation in foundation of the Tilaiya Dam at
Katni, P. S. Koderma, in the district of Hazaribagh. Paragraphs 1 and 2 of the
plaint read :
"1. That the plaintiff did excavation on
work of different categories as contractor in connection with the excavation in
foundation of the Tilaiya Dam at Katni in the district of Hazaribagh, P. S.
Koderma. The contractor's letter of 24th September 1949 (Annexure A) eventually
became the tender for such work.
2. Paragraph of the contractor's letter
stated 'This quotation is based on prevailing labour rate of Rs. 1-4-0 per
cooly but if there is increase of labour rate of more than 10 % in any
particular month, the proportionate increase in rate will be charged."
Paragraphs 3 to 11 state facts which indicate that the plaintiff had asked for
the increase of the labour rate per cooly by 20% and that the enhanced rates
approved by the Corporation-defendant were not accepted by the plaintiff.
Paragraph 12 states that the plaintiff asked
for payment under protest to which the defendant was not agreeable.
Paragraph 13 mentions the enhanced rates to
which the plaintiff considers himself entitled according to the proper
interpretation of clause 17 of the tender. Paragraph 14 of the plaint reads
"As the difference between the parties is about the interpretation of
clause 17 of the letter of the contractor dated 24-9-1949 the plaintiff is
advised to file the suit in the declaratory form.
The plaintiff reserves the right under O. 2,
r. 2 of the Code of Civil Procedure to omit to sue in respect of amount that
may be found due upon the interpretation placed by the plaintiff upon the said
clause 17 which interpretation it is submitted is the proper interpretation.
804 The plaintiff reserves the right to sue
later on for the amount found due, to him." Paragraph 15 states that the
cause of action arose on December 6, 1951 when the Corporation refused to allow
the increase of 20%. Paragraph 16 gives the value of the suit for the purpose
of jurisdiction to be Rs. 65,000 and said that court-fees of Rs. 20-10-4 was
paid as the suit was for declaration. Paragraph 17 said that the plaintiff
claimed (i) leave under O. 2, r. 2, C.P.C.; and (ii) that it be declared that
the plaintiff is entitled to enhancement of 20% over the tendered rates for the
different categories of excavation work as detailed in paragraph 13 of the
plaint in connection with the work of excavation in foundation of the Tilaiya
Dam. The plaint contained 3 annexures.
Annexure A was the letter which ultimately
constituted the tender. The schedule to the tender described the class and
description of work to be executed, unit of calculation and the rate of
payment. Annexure B was the letter from the plaintiff to the Executive Engineer
dated March 11, 1950 stating the difficulties in the performance of the
contract.
Annexure C was the letter from the Executive
Engineer dated March 15-16, 1950 conveying the approval of an enhancement of
10% in the rate over the tendered rate for the excavation workfrom the date
onward. Annexure D is the letter from the plaintiff to the Corporation dated
December 26, 1951 disputing the interpretation of the Corporation.
It is clear from the plaint and its enclosures
that the dispute between the parties was about the rate to be paid for the
different categories of work and that the plaintiff did not deliberately sue to
recover the amount that might be found due upon the interpretation placed by
the plaintiff upon the said clause 17.
Paragraph 13 of the written statement filed
by the defendant stated that the defendant did not admit the later part of the
statement in para 14 of the plaint which related to the plaintiffs reserving
his right to sue later for the amount found due at the enhanced rate. The
defendant, inter alia, contested the suit on the ground that the suit was not
maintainable in the form in which it had been framed.
Paragraph 16 of the written statement stated
that the Corporation was ever ready and willing and was still willing to pay
the legitimate dues to the plaintiff.
Issue No. 2 of the issues framed in the case,
was : 'Is the suit maintainable in its present form ?' The trial Court stated
in its judgment :
805 "The defendant also pleaded that the
plaintiff has no cause of action, the suit is not maintainable in the present
form and the court-fees paid is insufficient. But these allegations were not
pressed at the time of hearing." It accepted the contention for the
plaintiff that it was entitled to over-all increase by 20% in accordance with
cl.
17 of the tender. It further said :
"No objection has been pressed as to the
plaintiffs prayer regarding leave under O. 2, r. 2, C.P.C. That must therefore
be allowed." It accordingly decreed the suit.
On appeal, the High Court accepted the
respondent's contention that in view of the proviso to s. 42 of the Specific Relief
Act the suit for mere declaration was not maintainable and that the trial Court
was not right in granting permission under r. 2(3) of O. 2, C.P.C. to the
plaintiff to institute another suit for the amount to which the plaintiff be
entitled after the declaration sought for in the suit had been granted. The
prayer for amending the plaint was rejected as the money claimed had become
time.
barred long before the prayer was made
during, the arguments before the High Court and as there existed no special
circumstances to justify the grant of the amendment against the interest,; of
the defendant-respondent. The High Court therefore allowed the appeal and
dismissed the suit. It however granted leave to appeal as the requirements of
art.
133 (1) (a) of the Constitution were
satisfied.
Learned counsel for the appellant has
contended that there exists such special circumstances in the case which would
have justified, in the interests of justice, the grant of the application for
amendment of the plaint and, in the alternative, contended that the High Court
should not have allowed the respondent to object to the maintainability of the
suit on the basis of the proviso to s. 42 of the Act and if the Court had
allowed such an objection it should have, as a matter of course, allowed the
application for amendment.
I Propose to dispose of the second contention
first. The contention about the maintainability of the suit based on s.
42 of the Act aid had to be allowed. The
Court could not make a declaration unless further relief had been prayed for.
It was incumbent on the Court to comply with this requirement of law, 806 even
if not raised by the party, when it was clear that further relief could be
claimed in the suit. Further, in this particular case, it cannot be said that
no objection had been raised on this ground by the respondent up to the stage
of the appeal in the High Court. In paragraph 2 of the written statement, the
respondent questioned the maintainability of the suit in the form in which it
was instituted. Issue No. 2 was framed in that connection. The contention was
not given up by the respondent. It was simply not pressed on his behalf,
possibly, because it felt strong on the contention on the basis of which the
declaration was sought. I therefore do not consider the High Court in error in
allowing the respondent to raise the objection to the maintainability of the
suit on account of the plaintiff not having asked for the further relief.
It does not however follow that the appellant
must have been allowed, as a matter of course, to amend the plaint by adding a
claim for recovery of the amount found due.
The various cases relied on in support of
this contention are cases in which the fresh relief claimed by way of amendment
was not affected by the law of limitation and the objection to the
maintainability of the suit had not been taken at an early stage of the suit.
Reference need not be made to all those cases except to the one reported as
Rukhmabai v. Lala Laxminarayan(1) in which this Court observed :
"It is a well-settled rule of practice
not to dismiss suits automatically but to allow the plaintiff to make necessary
amendment if he seeks to do so." Neither the question of limitation arose
in that case nor did the Court consider it necessary for the plaintiff to have
asked for consequential relief. The above observation cannot be taken to be a
pronouncement in connection with amendments sought in the pleadings when they
be with respect to claims which had become time-barred.
It is now well-settled that the Court has
power to allow amendments in connection with claims which had become time barred,
if special circumstances exist and it be in the interests of justice. This is
not disputed for the respondent. The real dispute between the parties is
whether the circumstances of the case come within the principle laid down in
the various cases. This necessarily leads to a consideration of the
circumstances and the amendments sought in those cases.
(1) [1960] 2 S.C.R. 253,285.
807 Before referring to the cases, I may set
out the provisions of the Code which empower the Court to allow amendment of
pleadings. Section 153 and O. 6, r. 17, deal with the matter. Section 153 reads
:
"The Court may at any time, and on such
terms as to costs or otherwise as it may think fit, amend any defect or error
in any proceeding in a suit; and all necessary amendments shall be made for the
purpose of determining the real question or issue raised by or depending on
such proceeding." Rule 17 of 0. 6 reads :
"The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner
and on such terms as may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real questions in controversy
between the parties." These indicate that the amendment should be in such
manner as may be just and that, as a rule, all such amendments shall be made as
be necessary for the purpose of determining the real questions in controversy
between the parties. No amendment would be just if it so prejudices the
interests of the other party for which that party cannot get any relief from
the Court. The amendments which must be allowed can be those in the absence of
which the Court may not be able to determine the real question in controversy
between the parties. The real question in controversy must be gathered only
from the plaint and to some extent from the allegations in the written
statement. If the point to be decided as a result of the amendment is not
covered by the controversy raised by the plaint and the written statement,, the
amendment is not to be allowed necessarily, for the simple reason that it is
unnecessary for determining the real questions in controversy between the
parties. The Court has to decide the suit instituted before it and with respect
to the controversies raised in it. It follows that the amendments to be allowed
relate to such matters which, due to bad drafting of the plaint, could not be
clearly and precisely expressed, though the parties did really intend to have
those matters determined by the Court. The object of the amendment of the
pleadings is to clarify the pleadings for bringing into prominence the real
controversy between the parties and not for helping a party by making such amendments
which be beneficial to him in connection with some dispute 808 between the
parties, a dispute which has not been really taken to the Court for decision
and which the parties did not really intend to be decided in that suit. This
seems to me to be the real basis for an order of the Court in connection with
such amendments sought by a party in its pleadings as would raise a claim which
has become timebarred.
None of the cases referred to by the parties
hold differently.
The cases which are to be considered in this
connection are : Kisandas Rupchand v. Rachappa Vithoba(1); Charan Das v.Amir
Khan (2 ) ; L. J. Leach & Co. Ltd. v. Jardine Skinner & Co.(3); and
Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil(1). Reference to Kisandas's
case(1) is necessary as some of the observations in that case were approved by
this Court in the last case(4).
In Kisandas's case(1), the plaintiff sued for
dissolution of partnership and accounts alleging that in pursuance of the
partnership agreement they had delivered Rs. 4,001 worth of cloth to the
defendants. The Court found that the allowed agreement was not a partnership
agreement but evidenced the advance of a simple loan by the plaintiffs to the
defendants. The trial Court held that the plaintiffs had really delivered cloth
worth Rs. 4,001 to the defendants, but dismissed the suit as no decree for
dissolution of partnership and for accounts could be given and the plaintiff
had not asked to amend the plaint. In the first Appellate Court the
plaintiffs-appellants accepted the findings, of the trial Court that no
partnership was constituted by the agreement and prayed for leave to amend by
adding a prayer for the recovery of Rs. 4,001. The appellate Court was of
opinion that the plaintiffs had from the first intended to sue only for the
recovery of money but had been misled by their pleader, allowed the amendment
to be made and ultimately decreed the claim for Rs. 4,001. On the date of the
amendment, it may be noted, most of the claim had become time-barred. In the second
appeal, Batchelor J., said at p. 651 :
"Falling back, then, upon the words of
the Rule, I cannot follow the argument that there would be any injustice to the
appellants in allowing the amendment, for the only effect of it is to enforce
their liability for a debt which was claimed, disputed, and found to be due
long before the defence of limitation was available." (1) I. L.R. 33 Bom.
644.
(3) [1957] S.C.R. 438.
(2) L.R. 47 I.A. 255.
(4) [1957] S.C.R. 595.
809 Earlier, after referring to the provisions
of O. 6, r. 17, he had said at p. 649 :
"From the imperative character of the
last sentence of the rule it seems to me clear that, at any stage of the
proceedings, all amendments ought to be allowed which satisfy the two
conditions (a) of not working injustice to the other side, and (b) of being
necessary for the purpose of determining the real questions in controversy
between the parties." These observations have been approved by this Court
in Patils case (1) where the Court said, at p. 604 :
"The same principles, we hold, should
apply in the present case. The amendments do not really introduce a new case,
and the application filed by the appellant himself showed that he was not taken
by surprise; nor did he have to meet a new claim set up for the first time
after the expiry of the period of limitation." Batchelor J., further said,
at p. 652 (Kisandas's case) (2) , after referring to certain statements of the
plaintiff in the trial Court "It is difficult to imagine how the plaintiff
could have more clearly professed that, whatever may have been the attitude of
his obstinately unskilful pleader, he for his part had no concern with the
alleged partnership but was suing simply to recover his debt. I think,
therefore, that the Subordinate Judge would have been well advised if he had
paid more attention to the substance of the suit before him, and taken command
of it himself rather than handed over the conduct of the suit to a manifestly
inexpert pleader; had he taken this view of his duty as presiding Judge, the
slight technical difficulty which stood in his way would have been easily
removed." In Patil's case(1) amendment was allowed in the following
circumstances. The plaintiff had obtained a decree for possession against
defendant No. 2. He was obstructed during execution proceedings by defendant
No. 1. His objection under O. 21. r. 97 was dismissed and therefore he filed a
suit under O. 21, r. 103 for a declaration that he was entitled to recover
possession of the suit properties from defendant No. 1. The contents of (1)
[1957] S.C.R, 595.
(2) 33 Bom. 644.
810 the plaint did not give the facts or the
grounds on which the plaintiff based his title to the properties in suit as
against defendant No. 1. This difficulty was pointed out by defendant No. 1 and
subsequently the plaintiff asked for permission to give further and better
particulars of the claim made in the plaint. This application was rejected by
the trial Court. The trial Court did not allow this prayer and dismissed the
suit. The High Court allowed the amendment of the plaint and this Court agreed
with the order of the High Court. It is clear, as was observed by the Court at
p. 604, that this was not a case where a new claim was made by the amendment
but was a case where the incomplete particulars given in the plaint were sought
to be made complete by giving further particulars. The main object of the
plaintiff was to get a declaration of his right to possession against defendant
No. 1. It was to achieve this object that be instituted the suit. He did not
specify how he had a right to that property as against defendant No. 1 who was
said to have no right to refuse delivery of possession to him. The only
principle which can be deduced from this case is that amendment of the plaint
can be allowed to make the plaint complete in particulars which would help in
determining the real dispute between the parties, as raised by the plaint
itself as originally presented.
Before dealing with Charan Das' case(1)
reference may be made to the case reported as Mohummud Zahoor Ali Khan v.
Mussumat Thakooranee Rutta Koer(2) which has
been referred to in Charan Das' case(1). In this ease the plaintiff brought a
suit against several persons on the allegations that defendant No. 1 had
borrowed certain money on a simple money bond executed on August 9, 1856 and
that the other defendants claimed her property and that therefore the suit be
decreed against defendants and the property mentioned in the plaint, with
interest to date of realisation. Defendant No. 1 had also executed another bond
on November 28, 1857 to secure a further advance and 'had thereby pledged her
zamindari estate to the plaintiff. The suit was however not based on the second
bond. The Privy Council found that the suit should be dismissed against defendants
other than defendant No. 1 and that it was open to the defendant to ask for a
decree for payment of an amount due on the bond against defendant No. 1, but
could not claim a decree against the property on the basis of the second bond.
In that connection it was observed at p. 473 (1) L.R. 47 I.A. 255. (2) 11
M.I.A. 468.
811 "Though this Committee is always
disposed to give a liberal construction to pleadings in the Indian Courts, so
as to allow every question fairly arising on the case made by the pleadings to
be raised and discussed in the suit, yet this liberality of construction must
have some limit. A plaintiff cannot be entitled to relief upon facts or
documents not stated or referred to by him in his pleadings, and the only thing
that can be rightly insisted on by the plaintiff here is a decree for payment
against Rutta Koer." The Privy Council however considered whether inasmuch
as the suit was wholly misconceived, whether the proper course was not to
dismiss the appeal altogether without prejudice to the right of the
plaintiff-appellant to bring a new suit against defendant No. 1 upon the first
point, and decided that would not be the proper course as the fresh suit might
be resisted on the ground of being barred by limitation, and as in the circumstances
of the case such a defence in the fresh suit would be inequitable. The Privy
Council therefore allowed the plaintiff to amend his plaint so as to make it a
plaint against defendant No. 1 alone for the recovery of money due on a bond.
Here again the defect was in the frame of the suit and did not relate to the
real claim with respect to which the sought relief from the Court. The
plaintiff sought recovery of money due on the bond executed by defendant No. 1.
He however framed a suit not only against defendant No. 1 but against other
defendants as well and claimed a decree of money against all of them and
against the property. His suit was allowed to continue by making proper
amendment with respect to part of the original claim, i.e., with respect to the
recovery of money alone against defendant No. 1. This case shows that amendment
of the plaint was allowed so as to make it a plaint against defendant No. 1
alone for the recovery of the claim even though if the original suit for that
recovery had been instituted at the time it would have been barred by
limitation.
In Charan Das' case(1) the plaintiff sued for
a declaration of his right to pre-empt certain property. The suit so framed was
not maintainable in view of s. 42 of the Specific Relief Act, as the further
relief for possession was not asked. The trial Court rejected the application
for amending the plaint and dismissed the suit. The appeal against the
dismissal of the suit was allowed and the suit was remanded for decision upon
merits with (1) L.R. 47 I.A. 255.
812 liberty to the plaintiffs to amend their
plaint by adding a claim for possession and by ante-dating the plaint according
to the dates of the original suits. The Privy Council approved of the
permission for the amendment of the plaint and, after quoting with approval the
observations of the Judicial Commissioner to -the effect :
"however defective the frame of the suit
may be, the plaintiffs' object was to pre-empt the land; their cause of action
was one and the same whether they sued for possession or not" said at p.
262 :
"If this be so, all that happened was
that the plaintiffs, through some clumsy blundering, attempted to assert rights
that they undoubtedly possessed under the statute in a form which the statute
did not permit. But if once it be accepted that they were attempting to
establish those rights, there is no sufficient reason shown for disturbing the
judgment of the Judicial Commissioner, who thinks they should be at liberty to
express their intention in a plainer and less ambiguous manner. It may be
noticed that in the claim the relief sought is so awkwardly set out that it
would be quite open to the interpretation that +,hey had in fact claimed
pre-emption and not a declaration of right . . . . " These observations,
again, make it clear that amendment was allowed with respect to a, claim which,
at the time when it was made, would have been time-barred because that claim
could be spelt out of the original plaint which was held to be defectively
framed. A defect in the frame of the plaint was not considered sufficient to
disallow amendment and to dismiss the suit. The amendment of the plaint was
necessitated to clumsy drafting. The plaintiff was allowed to express his
intention in a plainer and less ambiguous manner. It was these considerations
which, according to the Privy Council, outweighed the consideration that the
power of amendment should not as a rule be exercised where its effect be to
take away from a defendant a legal right which had accrued to him by lapse of
time and brought the case within the principle laid down in Ali Khan's case(1).
The next case to be considered is Leach &
Co.'S Case(2).
In That case the plaintiff had filed a suit
for damages for conversion (1) 11 M.I. A. 468. (2) [1957] S.C.R. 438.
813 against the defendants on the allegation
that they were the agents of the plaintiffs. This plea failed. On appeal, the
appellate Court held that the parties stood in the relationship of seller and
purchaser and not agent and principal. This Court, on further appeal, agreed
with the findings of the appellate Court +,hat the, suit for damages on the
footing of conversion must fail. The plaintiffs, however, applied to this Court
for amendment of the plaint by raising, in the alternative, a claim for damages
for breach of contract for non-delivery of the goods. The application was
opposed on the ground that it introduced a new cause of action and a suit on
that cause of action would be barred by )imitation. This Court considered there
was force in the objection but, after giving due weight to it, was of the
opinion that it was a fit case in which the amendment should be allowed as the
new claim was based on a clause of the same agreement on which the suit had
been founded and therefore could not be said to be foreign to the scope of the
suit and as the prayer in the plaint was itself general and merely claimed
damages. This Court observed at p. 450 "Thus, all the allegations which
are necessary for sustaining a claim for damages for breach of contract are
already in the plaint. What is lacking is only the allegation that the
plaintiffs are, in the alternative, entitled to claim damages for breach of
contract by the defendants in not delivering the goods." Here again, the
amendment allowed related to the form of relief which could be claimed on the
basis of the facts alleged in the plaint and a clause of the document on the
basis of which the suit was founded. The defect in the plaint was in giving a
correct shape to the legal claim which was open to the plaintiff and the relief
sought could be covered by the original relief which was couched in general
language. It may further be mentioned that the amendment was considered just as
the defendants themselves had cancelled the contract without strictly complying
with the terms of the contract and the Court felt that the justice of the case
required that the amendment be granted.
It would appear from the various cases
discussed above that an amendment which would enable a plaintiff to make a
claim which has become time-barred is as a rule to be refused and that the
Court would exercise its special power to allow such amendment only when there
be special circumstances in the case. The nature of those special circumstances
is to be gathered from those cases in which such an amendment was allowed. It
appears to me that 814 such special circumstances can be only when the amended
claim was at least intended to be made by the plaintiff who had given in the
plaint all the necessary facts to establish the claim but had due to clumsy
drafting not been able to express himself clearly in the plaint and to couch
his relief in the proper legal form. Such circumstances justify an amendment
not really as a judicial concession to the plaintiff to save him from any
possible loss but on the ground that the original claim in the plaint, though
defectively stated, really amounted to the claim sought to be made by the
amendment. Looked at in this way, the permission to amend does not in reality
offend against the law of limitation and serves the interests of justice.
At this stage I may properly refer to what
was said by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung(1). In that
case the Privy Council had to consider whether the amendment allowed by the
Judicial Commissioner, on appeal against the order of the District Judge, could
be allowed in law or not. It observed at p. 216 :
"All rules of Court are nothing but
provisions intended to secure the proper administration of justice, and it is
therefore essential that they should be made to serve and be subordinate to
that purpose, so that full powers of amendment must be enjoyed and should
always be liberally exercised, but none the less no power has yet been given to
enable one distinct cause of action to be substituted for another, nor to
change, by means of amendment, the subject matter of the suit.
It was held that the claim after amendment
would be based on a different cause of action from that on which the original
claim was based and therefore was not the real question in controversy between
the parties in that suit. To allow the new claim would be to go outside the
provisions of O.6, r.
17, C.P.C.
I may now consider whether the fact,% of the
present case are such as would justify the amendment of the plaint sought by
the plaintiff-appellant. The plaint in the present case gives no facts which
are necessary to establish before the plaintiff can get a decree for Rs. 65,000
or which may justify a decree for accounting. The schedule attached to the
tender, Annexure A, shows that different rates of payment were agreed upon
different basic, as unit of calculation for different type of work. The plaint
nowhere B indicates the amount of work done under each category and unless (1)
L.R. 48 I.A. 214.
815 the plaintiff sets out the amount of work
done he cannot certainly make out any claim for payment to him. It is said that
the amount due to the plaintiff can be worked out on accounting on the basis of
the bills tendered by him and to which the defendant had not raised any
objection. No reference to such bills has been made in the plaint.
Nothing is said in the plaint that the
defendant had agreed to the bills tendered. To allow the amendment of the
plaint would necessarily lead to a further request for the furnishing of these
details about the work done and that would necessarily lead to the defendants
being afforded an opportunity to put in a further written statement in
connection with the fresh facts which would come on the record. In fact the
amendment sought would necessitate practically a de navo trial on the question
as to what amount the plaintiff is entitled from the defendant on account of
the work done. The amended claim cannot be decreed on the facts on the record.
When the plaintiff cannot get the relief,
sought to be added as a result of the amendment on the facts mentioned in the
plaint originally, it is clear that the cause of action for a decree for Rs.
65,000 is different from the cause of action on which the suit for declaration
was founded. For the suit as originally instituted the plaintiff had merely to
prove the terms of the contract between the parties and to show that his
interpretation of these terms was the correct one and that interpretation
justified the declaration sought. A suit based on one cause of action cannot be
allowed to be changed into a suit based on another cause of action.
It cannot be said that the plaintiff intended
to sue the defendant for the recovery of Rs. 65,000 but failed to express
himself clearly in the plaint and that therefore he be allowed to make the
plaint precise and clear in that regard. The plaintiff knew that he could make
a claim for money and in para 14 reserved the right under O. 2, r. 2 C.P.C. to
omit to sue in respect of that amount that be found due upon interpretation
placed by him on cl. 17 of the tender. This indicates that he did not intend to
sue for the amount due to him and that he anticipated the possibility of later
suing for the recovery of the amount deliberately not sued for in the suit.
This circumstance also justifies the rejection of his prayer for amendment.
The fact that the trial Court, by its
judgment, allowed leave under O. 2, r. 2 of the Code to sue for the amount due
subsequently is no circumstance to justify the amendment now sought. The
omission of the dependent to press any objection against the prayer of the
plaintiff for leave under O. 2, r. 2 is not such a special circumstance which
should justify the amendment sought. Leave under O. 2, r. 2 can be sought by
the plaintiff and can be given by the Court with respect to a plaintiff's not
suing for certain relief arising out of the same cause of action as subr. (3)
provides that a person entitled to more than one relief in respect of the same
cause of action may sue for all or any of such reliefs. But if he omits, except
with the leave of the Court, to sue for all such reliefs, he shall not,
afterwards, sue for any relief omitted. It has been shown above that the cause
of action for the relief of declaration was different from the cause of action
for the claim of money. The relief for the money due did not arise from the
cause of action on which the relief for declaration was based.
I am therefore of opinion that the High Court
was right in not allowing the amendment sought by the plaintiff. The appeal
therefore fails and I would dismiss it with costs.
ORDER The appeal is allowed in accordance
with the majority judgment.
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