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Kanmani Films Vs. G.K. Kutty - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 206 of 1968
Judge
Reported inAIR1969Kant259; AIR1969Mys259; (1969)1MysLJ99
ActsSpecific Relief Act - Sections 42; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantKanmani Films
RespondentG.K. Kutty
Excerpt:
.....fides could also be inferred from frivolous and vexatious nature of amendment - mere fact that two reliefs claimed are inconsistent with each other not sufficient to reject prayer for amendment - discretion exercised by civil judge in favour of allowing amendment proper and reasonable - impugned order sustained. - family courts act,1984[c.a.no.66/1984] -- section 19(4): [n.k. patil, j] revision petition prayer for enhancement of maintenance non-consideration of the salary certificate issued by the college produced by the revision petitioner which discloses total gross salary of the respondent at rs.12,000/- p.m. family court awarded rs.1,500/- for wife and rs.500/- for the daughter - failure of the family court to consider the necessities of the minor daughter expenses towards cost of..........same set of facts and circumstances. once this conclusion is reached, the mere fact that the two reliefs claimed are inconsistent with each other would not be sufficient to reject the prayer for amendment.as a rule, all the reliefs flowing from a certain set of facts and circumstances, should be claimed by a suitor unless there are some specific reasons for not adopting that course. it is no doubt pointed out by sri karanth that having regard to the background of the collateral and incidental proceedings, and the specific reservation made by the plaintiff as to the enforcement of his right to claim damages, discretion ought not to have been exercised in favour of the plaintiff. in my opinion, the mere fact that the plaintiff has made a reservation regarding reliefs should not enable.....
Judgment:
ORDER

1. This petition is directed against an order, allowing the amendment of the plaint, made by the learned Third Addl. Civil Judge, Bangalore City, on I. A. No. VIII in Original Suit No. 137 of 1967.

2. It is necessary to mention a few facts, which are as follows: The plaintiff filed a suit for recovery of a sum of Rs. 16,500/- against the present petitioner. The cause of action for the claim was based on an alleged agreement, according to which, the plaintiff was constituted as 'the sole distributor in Bangalore' for the distribution of motion picture entitled 'Chemmeen.' This picture is said to have been produced by the first defendant Messrs. Kanmani Films. It is further the case of the plaintiff that the first defendant was trying to transfer the right of 'distribution rights' to other concerns and maneuvering to take away the print of the picture from the custody and possession of the plaintiff. In regard to the assessment of the claim, it was contended by the plaintiff that, according to the agreement with the first defendant, he should be paid 15% as commission on the total collections realised by the screening of the picture in question at 'Alankar Theatre' in Bangalore. The claim was contested by the first defendant on various grounds. But, what is relevant to note is that he was constituted as the 'sole Distributor' of the picture as claimed by the plaintiff.

3. In view of the submission made on behalf of the petitioner that the application for leave to amend the plaint was wanting in bona fides, it would be relevant to refer briefly to some collateral and incidental proceedings between the parties. In this suit, the plaintiff had asserted that he was entitled to a lien on the print of the picture until his claim regarding the commission was fully satisfied. But, he had not claimed any relief specifically in that regard. The plaintiff also filed an interlocutory application asking for the relief of a temporary injunction or alternatively a prohibitory notice directing the defendant not to change his distributorship and not to disturb him from the possession of the print until the claim in the suit was fully satisfied. The said injunction was refused from which an appeal was preferred in M. A. No. 27/67 before the learned District Judge, Bangalore. In the course of the disposal of this application and the appeal, certain observations came to be made relating to his omission to seek the relief of declaration that he was a distributor and in that capacity was entitled to be in possession of the print of the picture.

Having failed in these proceedings and possibly taking cue from the observations of the Courts therein to the temporary injunction, he came forward with an application under Order 6, Rule 17 C.P.C. Seeking for the reliefs of declaration and permanent injunction in regard to his right as a sole distributor of the picture 'Chemmeen' for the area of the Mysore State. Incidentally, it is also relevant to mention that the plaintiff subsequent to the filing of this suit entered into an agreement with certain exhibitors and arranged for the screening of the picture at Mysore City. As a consequence of this conduct on the part of the plaintiff, the first defendant instituted O. S. No. 162 of 1967 against the plaintiff and others for various reliefs including the one for recovery of the possession of the print in question. The learned Civil Judge allowed the application for the amendment of the plaint after overruling the objections filed by the first defendant in that regard, Aggrieved by this order, the first defendant has approached this Court in the present revision petition.

4. The argument of Sri. K. R. Karanth the learned Counsel appearing on behalf of the petitioner is as follows: The suit as filed was purely one for recovery of money. The present amendment is one relating to a declaration of his rights to the sole distributorship of the film in question with consequential relief of injunction. The effect of allowing the amendment of this character would make the reliefs clearly inconsistent with one another. Such an amendment, according to the learned Counsel, ought not to be allowed. The second of his arguments is that in view of the background leading up to his omissions to seek the reliefs, the application in question should not be treated as one which has been made in good faith. His further contention in this regard has been that the plaintiff had all the facts and circumstances within his knowledge, as could be clearly seen from the allegations in the plaint, and yet deliberately chose not to seek those reliefs in the first instance. He also draws attention to the fact that the plaintiff has elected to sue for damages on the basis of evasion of his rights as a sole distributor. Having thus chosen his course, it is not open to the plaintiff to come up with an amendment of this sort after the case has been pending for a considerable length of time.

The cumulative effect of all these circumstances would lead to the irresistible conclusion that the application was not make in good faith. His next submission is that the Court had not at all applied its mind to the case before exercising the discretion in favour of allowing the amendment. The basis for this submission is afforded by a casual reference to the judicial decisions cited at the Bar before the lower Court. In particular Sri Karanth draws attention to two citations given as AIR 1921 PC 20 and : AIR1955AP135 which did not at all relate to any case or matter arising under R. 17 of Order 6, C.P.C. He also refers to an observation made by the learned Civil Judge as to the existence of unanimity between the learned Counsel appearing for the parties as to the necessity for claiming the relief of declaration and perpetual injunction in the suit. The correctness of this observation has been disputed at the Bar. Incidentally, he draws attention to the circumstances that the lower Court had relied on a letter alleged to have been written by one Ramachandran, Manager of the first defendant, and submits that the Court was not justified in relying on that letter which on the face of it has been written subsequent to the suit. He also submits that the said Ramachandran is no longer in the service of the first defendant, and denies the authenticity of the letter in addition to his other allegations pointing to collusion between the plaintiff and the said Ramachandran. Lastly, it is contended by Sri Karanth that the application for amendment of the plaint seeking to add additional reliefs, should set out clearly and specifically particulars as to the bearing such amendment has on the question of Court fee and such other procedural maters. In the absence of such particulars being furnished, it was not proper on the part of the Court merely to allow the amendment and direct additional court fee to be determined and paid at a later state. This circumstance, according to him is also indicative of the fact that the Court did not apply its mind judicially to this case.

5. Sri V. Balarathnam, the learned counsel appearing on behalf of the respondent in this petition, submits that even on the supposition that the lower Court has not properly applied its mind to the case, if the conclusion arrived at was justified, having regard to the facts and circumstances surrounding the case, the order will have to be sustained. It is his further submission having regard to the scope and ambit of Order 6, Rule 17 C.P.C., the discretion to be exercised in favour of allowing the amendment is sufficiently wide, and such exercise of discretion would be warranted if it satisfies two conditions, namely (1) not causing injustice to the other side, and (2) being necessary for the parties for determining the real question in controversy between the parties. He proceeds to submit that in the instant case what he has sought by way of amendment is the claim for some additional reliefs which flow from the same set of facts or ideas.

6. On the question of want of good faith, as argued for the petitioner, he submits that there has-been no inordinate delay in seeking the amendment and that the mere fact that the plaintiff was impelled by this failure to secure an interlocutory relief, in making the present application for amendment, would not by itself warrant an inference of want of good faith, if otherwise, he has made out sufficient grounds for the amendment. He therefore, submits that the discretion exercised by the learned Civil Judge in favour of allowing the amendment deserves to be sustained.

7. On a careful examination of the matter, I am not persuaded to agree with the contentions of Sri Karanth, advanced in support of the petition. It is true that at first sight the reliefs sought for by way of amendment appear to be inconsistent with the original claim for money. This is so as far as the reliefs go. But, on an examination of he facts and circumstances narrated in the plaint, by way of setting forth the cause of action to the suit, it is clear that the plaintiff has based his suit on a claim that he was the sole distributor at Bangalore for the motion picture 'Chemmeen'. In so far as the quantum of commission claimed in the first instance, he seems to base it on a specific agreement relating to the screening of the picture in one of the theaters in Bangalore, by name 'Alankar'. It, therefore, follows that the plaintiff will have to make out his case that he was under a contract appointed as a sole distributor for the area in question. It is exactly this claim that has been traversed by the first defendant, denying the existence of any contract in that regard. In other words, the plaintiff has to establish that he was a sole distributor as claimed by him. It will, therefore, follow that it is open to him to claim a declaration in regard to his right of distributorship on the same set of facts as alleged in the plaint. To put it in a slightly different way, both the reliefs relating to the money and the declaration of his right to his distributorship flow from the same set of facts and circumstances. Once this conclusion is reached, the mere fact that the two reliefs claimed are inconsistent with each other would not be sufficient to reject the prayer for amendment.

As a rule, all the reliefs flowing from a certain set of facts and circumstances, should be claimed by a suitor unless there are some specific reasons for not adopting that course. It is no doubt pointed out by Sri Karanth that having regard to the background of the collateral and incidental proceedings, and the specific reservation made by the plaintiff as to the enforcement of his right to claim damages, discretion ought not to have been exercised in favour of the plaintiff. In my opinion, the mere fact that the plaintiff has made a reservation regarding reliefs should not enable (sic) him to seek reliefs in instalments. Even otherwise, if such a reservation is based on a mistake or misapprehension of the true position of facts and law, it cannot operate as an impediment in his way to seek the amendment. It is also pointed out by the learned Counsel that nowhere in the plaint the allegations expressly or by implication, refer to his claim of distributorship in respect of the area of the Mysore State. On the other hand, the reference is to the recognition of his right as a sole distributor in Bangalore by the first defendant. This aspect of the pleadings and the inferences flowing therefrom require to be examined only after all the materials are placed on record in the trial of the suit. Hence, in my view, this does not afford sufficient ground for disallowing the amendment.

8. The criticism leveled by the learned Counsel as to the want of application of the mind, as is evident, on the face of the order, no doubt appears to be justified at first sight. On an examination of the order as a whole, I am clearly of the view that except for the circumstances, pointed out by the learned Counsel, the learned Civil Judge has examined the facts and circumstances in the case with a view to exercise discretion in favour of allowing the amendment.

9. The next argument of Sri Karanth is based on want of bona fides in making the application. The basis for this argument of his is that the plaintiff was fully aware of all the facts and circumstances any yet chosen to limit his claim in the present suit to the commission payable on the screening of the picture in 'Alankar' theater, by expressly reserving his right to sue for damages founded on an infringement of the alleged contract of distributorship. He had gambled on securing the relief of temporary injunction in the suit, and only, after having failed therein, he has chosen to come forward with this amendment. In these circumstances an inference of want of good faith should be raised. I am unable to accede to this argument. It is no doubt true that ordinarily want of bona fides will have a bearing on the exercise of discretion in granting or refusing the amendment. In the instant case I am not satisfied that the want of good faith, as argued by the petitioner has been of such a nature as can be said to vitiate the exercise of discretion by Court in favour of allowing the amendment. Such want of bona fides could also be inferred from the frivolous and vexatious nature of the amendment. In other words. if no substantial grounds to be set up by the intended amendment, an inference of this nature would be permissible. But, in the instant case, it is clear that on the allegations in the plaint, if substantiated, a case for the grant of relief of declaration and injunction can be said to have been established. That is not to say that he will not have to establish his claim in terms of the actual reliefs claimed by him.

10. The only other argument relates to the incomplete character of the particulars furnished by the plaintiff in seeking leave of the Court. This aspect of the criticism is based on the absence of the averments regarding the particulars of Court-fee payable and such other procedural requirements. These defects, in my view, relate to purely incidental maters relating to amendments which can always be remedied. But, these are not defects which vitiate the exercise of discretion in favour of allowing an amendment, and in all such matters it is the substance of the matter that has to be looked to than the form.

11. In my view the principle of the decision reported in : [1966]1SCR796 , to which attention is invited by Sri V. Balarathnam, the learned counsel, would be applicable to the facts and circumstances of the present case. Sri V. Balarathnam also draws attention to several decisions to which it is unnecessary to refer. The facts of that case were that a contract of work contained a clause to the effect that in case of an increase in the prevailing labour rate of more than 10 per cent the contractor would be entitled to charge proportionate increased rates. Subsequently, there was an increase in labour rate by 20%. Consequently, a whether under the clause the contractor was entitled to the whole of such amount or only part of it. Hence a suit was filed by the contractor claiming only a declaration that on a proper interpretation of that clause he was entitled to an enhancement of 20% over the tendered rates. The suit was decreed but in appeal it was held to be not maintainable in its form. In view of Section 42 of the Specific Relief Act.

Hence, the plaintiff, while at the stage of appeal in the High Court sought leave to amend the plaint by adding an extra relief for a decree for the money due on the contract or such other amount as was found to be due on a proper account being taken. The amendment was refused by the High Court and the matter was taken up in appeal before the supreme Court. What is also of importance to note is that on the day this amendment of the relief, by introduction of specific money claim, was made it was barred by time. The Supreme Court while allowing the amendment observed thus:

'In the matter of allowing amendment of pleading the general rule 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 cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation.'

Again in the same judgment with reference to the meaning of the expression 'cause of action' in the context of the provisions of Order 6. Rule 17, C.P.C. Their Lordships observed thus:

'The expression 'cause of action' in this context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new claim made on a new basis constituted by new facts. The words new case mean new set of ideas. 'Thus no amendment will be allowed to introduce new set of ideas to the prejudice of any right acquired by any party by lapse of time'

(underlining (herein ' ') is mine).

12. It is clear from the above enunciation that if an additional relief is claimed on the same set of facts and ideas, ordinarily the amendment in that regard ought not to be disallowed. It is also manifest that even if there is a question of limitation arising from lapse of time, which can be effectively raised by the defendant, it is permissible to allow an amendment by way of incorporation of additional relief so long as it is not based on a separate or distinct set of ideas as observed in the above decision.

13. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. But that is a factor to be taken into account in the exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice : [1957]1SCR438 .

14. In the light of the above discussion. I am clearly of opinion that the discretion exercised by the learned Civil Judge, Bangalore, in favour of allowing the amendment is proper and reasonable. The order, therefore, deserves to be sustained.

15. In the result, the petition fails and is dismissed.

16. In the circumstances of the case, there will be no order as to costs.

17. Appeal dismissed.


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