Muni Lal
Vs. The Oriental Fire & General Insurance Company Ltd. & Anr [1995] INSC
645 (9 November 1995)
Ramaswamy,
K. Ramaswamy, K. Ahmad Saghir S. (J)
CITATION:
1996 AIR 642 1996 SCC (1) 90 JT 1995 (8) 283 1995 SCALE (6)501
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
We
have heard the counsel on both sides. The admitted facts are that the appellant
had got insured his truck bearing registration No. HPA 6288 with the respondent
No. 1 on March 28, 1983. During the course of employment of
carriage of goods, the truck handed over to the driver on October 7, 1983 was not returned to the appellant.
Thereby he lost the truck by an act of misfeasance of the driver.
The
appellant in the interregnum had the insurance renewed on April 19, 1984 operative upto April 18, 1985. On July 9, 1984, the appellant demanded payment of insured amount due to
loss of the truck which liability was disclaimed by the respondents through
their letter dated December
31, 1984.
After
exchange of legal notice and reiteration of denial thereof, case No. 34 of 1986
was instituted in the Court of the Chief Judicial Magistrate, Solan, District Solan,
Himachal Pradesh, seeking a declaration that the appellant is entitled to the
total loss of the truck from the Insurance Company. The Trial Court by its
judgment and decree dated July 23, 1988
dismissed the suit holding that the suit for mere declaration without
consequential relief for payment of compensation for the loss of truck or
specified amount of compensation from the respondents was not maintainable. On
appeal, the District Judge in case No.138-S/13 of 1988 by judgment and decree
dated June 16, 1990 confirmed the same which was
further affirmed by the High Court in Second Appeal No. 432/90 by judgment
dated November 27, 1990.
Mr.
R.K. Khanna, learned counsel after thorough preparation of the case and with
all pursuation contended that by operation of Section 28 of the Contract Act,
limitation of one year prescribed in Clause 8 of the contract is void. The
appellant may sue within three years from the date of discovery of the loss of
the vehicle. The courts below, therefore, were not justified in dismissing the
suit. He contended that since the appellant claimed declaration of the
entitlement, an application under Order 6, Rule 17 C.P.C. was filed in the
appellate Court seeking consequential relief and that the District Judge and
the High Court were not, therefore, right in rejecting the claim holding that
the suit is barred by limitation and when the suit was initially instituted
within limitation.
Consequently,
the relief, though during the course of the proceeding be barred by limitation,
being incidental to the grant of the declaration, the appellant cannot be
denied of the consequential relief. The District Judge and the High Court were
not right in refusing to permit amendment of the plaint.
The
question, therefore, is whether the appellant had properly framed the suit and
whether the claim is barred by limitation. It is true, as rightly pointed out
by Sri Rakesh Khanna, that Section 28 of the Contract Act prohibits
prescription of shorter limitation than the one prescribed in the Limitation
Act. An agreement which provides that a suit should be brought for the breach
of any terms of the agreement within a time shorter than the period of
limitation prescribed law is void to that extent. The reason being that such an
agreement is absolutely to restrict the parties from enforcing their rights
after the expiration of the stipulated period, although it may be within the
period of general limitation. But acceptance of that contention does not per
force solve the controversy in this appeal.
Section
34 of the Specific Relief Act provides that any person entitled to a legal
character, or to any right as to any property may, institute a suit against any
person denying or interested to deny, his title to such character or right, and
the court may in its discretion make such declaration and the plaintiff need
not ask for such relief.
However,
proviso to the said Section puts the controversy beyond pale of doubt that
"no courts shall make any such declaration where the plaintiff, being able
to ask for other relief than a mere declaration of title, omits to do so".
In other words, mere declaration without consequential relief does not provide
the needed relief in the suit, it would be for the plaintiff to seek both the reliefs.
The omission thereof mandates the Court to refuse to grant the declaratory
relief. In this appeal, the appellant has merely asked for a declaration that
he is entitled to the payment for the loss of the truck in terms of the
contract but not consequential relief of payment of the quantified amount, as
rightly pointed out by the courts below. The question, therefore, is whether
the amendment under Order 6, Rule 17 C.P.C. could be ordered in this
background. Section 3 of the Limitation Act speaks of bar of limitation
providing that subject to the provisions contained in Section 4 to 24
(inclusive), every suit instituted, after the prescribed period shall be
dismissed, although limitation has not been set up as the defence. In other
words, unless there is a power for the court to condone the delay, as provided
under Sections 4 to 24 (inclusive), every suit instituted after the prescribed
period shall be dismissed although limitation has not been set up as the defence.
Order 6 Rule 17 C.P.C. envisages amendment of the pleadings. The court may at
any stage of the proceedings allow either parties 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 question of controversy between the parties. Therefore, granting of
amendment on such terms is also a condition for the purpose of determining the
real question in controversy between the parties. The amendment to grant
consequential relief sought for in this case, is as envisaged in proviso to
Section 34 of the Specific Relief Act, 1963. That relief was, however,
available to him, to be asked for, when the suit was filed.
Admittedly,
by the date of the application for amendment filed, the relief stood barred by
limitation. The question, therefore, is whether the Court would be justified in
granting amendment of the pleadings in such manner so as to defeat valuable
right of defence of bar of limitation given to the defendant. It is true that
this Court in the case of Vineet Kumar v. Mangal Sain Wadhera reported in
[(1984) 3 SCC 352 (at page 360, in paragraph 16)] held that normally amendment
is not allowed, if it changes the cause of action. But it is well recognized
that where the amendment does not constitute the addition of a new cause of
action, or raise a new case, but amounts to not more than adding to the facts
already on record, the amendment would be allowed even after the statutory
period of limitation. In that case, the question of limitation was not really
in issue. The question was whether the tenant was liable to be ejected. The
plea was that there was an exemption period of 10 years from the purview of the
Rent Control Act, if pending proceedings 10 years' period has elapsed. On that
ground a new right had arisen to the tenant to take advantage of the benefit of
the provisions of the Rent Control Act. In these circumstances, this Court held
that the bar of limitation does not really stand in the way of the tenant to
grant relief. As stated earlier, the suit was not initially instituted as one
for recovery of damages nor was it founded on the relief which might have been
asked for but was not claimed. In Pusupuleti Venkateswarlu v. The Motor &
General Traders [(1975) 3 SCR 958) this Court dealing with the basis of cause
of action and character of the right had held that "it is basic to our processual
jurisprudence that the right to relief must be judged to exist as on the date a
suitor institutes the legal proceedings. Equally clear is the principle that
procedure is the handmaid and not the mistress of the judicial process. If a
fact, arising after the is has come to Court and has a fundamental impact on
the right to relief or the manner of moulding it, is brought diligently to the
notice of the tribunal (Emphasis supplied), it cannot blink at it or be blind
to events which stultify or render inept the decreetal remedy. Equity justifies
bending the rules of procedure, where no specific provision of fair-play is not
violated, with a view to promote substantial justice subject, of course, to the
absence of other disentitling factors or just circumstances (Emphasis
supplied). Nor can we contemplate any limitation on this power to take note of
updated facts to confine it to the Trial Court." In other words, this
Court laid emphasis that with a view to mould the relief a new fact can always
be taken into account not merely by the trial court but even by the appellate
court.
Where
the appeal is delayed even by necessary implication, the relief of amendment in
that event cannot be given. In other words, to render substantial justice
without causing injustice to the other party or violating fair-play, Court
would be entitled to grant proper relief even at the stage of appellate forum.
It is seen that the ratio of Jagdish Singh v. Natthu Singh [AIR 1992 SC 1604]
is also inapplicable to the facts of this case. That case relates to a suit
instituted for specific performance but without abandoning the relief of
specific performance alternate relief for damages was also sought for. This
Court relying upon the proviso to sub-section (5) of Section 21 of the Specific
Relief Act which expressly gives power to the Court to grant amendment of the
pleadings at any stage of the proceeding, permitted amendment of the plaint
seeking alternate relief. The ratio therein is clearly distinguishable and does
not apply to the facts of this case.
On a
consideration of this case in its proper perspective, we of the view that
granting of amendment of plaint seeking to introduce alternative relief of
mandatory injunction for payment of specified amount is bad in law.
The
alternative relief was available to be asked for when the suit was filed but
not made. He cannot be permitted to amend the plaint after the suit was barred
by limitation during the pendency of the proceeding in the appellate court or
the second appellate court. Considered from this perspective, we are of the
opinion that the District Court and the High Court were right in refusing the
prayer of amendment of the suit and the courts below had not committed any
error of law warranting interference.
The
appeal is accordingly dismissed but, in the circumstances, without costs.
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