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Paradip Port Trust Vs. Misrilal Mines (Pvt.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 147 of 1981
Judge
Reported in60(1985)CLT122; 1985(II)OLR124
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 7
AppellantParadip Port Trust
RespondentMisrilal Mines (Pvt.) Ltd.
Appellant AdvocateR. Mohanty, K. Patnaik and B. Mishra
Respondent AdvocateB.B. Mohanty, R.K. Kar and Mira Das
DispositionPetition allowed
Cases ReferredIn Ransom v. City of Pierre
Excerpt:
.....the court in its discretion take notice of the said event by permitting the amendment or drive the plaintiff to a separate suit ? 11. it is well settled that the court is entitled to take notice of subsequent events and grant relief to the parties accordingly if by doing so it can shorten litigation and best attend the ends of justice. 665, justice thayer stated the principle in the following words :it is the duty of the court which till retains the control of judgment to take such action as would shorten litigation, preserve the rights of both parties and best subserve the ends of justice. it is well fettled that if ends of justice should be subserved, an amendment of the suit on the basis of which the suit would be barred by limitation, may be allowed. that way ends of justice would be..........one such. under the agreement entered into, the defendant was liable for damage of and loss to the barge. barge no. 30 capsized and sunk on 7. 3. 1975 due to the fault in loading by and/or negligence of the defendant. the port trust thereafter called upon the defendant to pay a sum of rs. 1,50,000/- for the salvage of and repairs to the barge. according to the port trust, the amount represented the estimated cost of salvage and repair. as the defendant paid no heed to the plaintiff, the suit was filed for recovery of a sum of rs. 1,50,000/- representing the estimated cost of salvage of and repairs to the barge.3. the defendant controverted all the allegations and entered contest. on 9. 1. 1981, the case was taken up for hearing and p. w. 1 was examined. cross-examination of the said.....
Judgment:

R.C. Patnaik, J.

1. The plaintiff has approached this Court for revision of an order, passed by the trial Court, rejecting its application for amendment of the plaint.

2. Paradip Port Trust is a body corporate under the Major Port Trust Act, 1963 and has barges in the port area. The defendant-opposite party is a company carrying on business of raising and export of ores through Paradip Port. It has been alleged that the defendant-opposite party hired some barges of the Port Trust for loading of ores in the ships. Barge No. 30 was one such. Under the agreement entered into, the defendant was liable for damage of and loss to the barge. Barge No. 30 capsized and sunk on 7. 3. 1975 due to the fault in loading by and/or negligence of the defendant. The Port Trust thereafter called upon the defendant to pay a sum of Rs. 1,50,000/- for the salvage of and repairs to the barge. According to the Port Trust, the amount represented the estimated cost of salvage and repair. As the defendant paid no heed to the plaintiff, the suit was filed for recovery of a sum of Rs. 1,50,000/- representing the estimated cost of salvage of and repairs to the barge.

3. The defendant controverted all the allegations and entered contest. On 9. 1. 1981, the case was taken up for hearing and P. W. 1 was examined. Cross-examination of the said witness continued on that day as well as on 13. 1. 1981 and 21. 1. 1981. On 27. 1. 1981, to which the case stood adjourned for further evidence, an application was filed by the plaintiff for amendment of the plaint. It was alleged that the suit had been filed for recovery of an amount which represented the estimated, cost of salvage and repairs. As by then, the barge had been salvaged and repairs had been done, it was necessary to amend the plaint to incorporate the subsequent events and claim the actual cost, expenditure etc. incurred. It was alleged that a sum of Rs. 1,38,815.48 was incurred for the salvage of the barge and a sum of Rs. 1,35,224.90 was incurred in repairs. The plaintiff sought deletion of the paragraph which contained the recitals regarding estimated cost of salvage and repairs and in its place wanted substitution of a paragraph pleading actual costs incurred in salvage substitution. It was alleged that the salvaging was done on 19. 6. 1976 and the repair work was completed on 14. 8. 1980. The plaintiff also sought to amend the relief by substituting the relief of Rs. 2,24,040.38 in place of the original relief of Rs. 1,50,000/-.

4. The defendant raised objection to the prayer for amendment urging that a new case was sought to be introduced by the amendment which would change the nature and character of the suit. The salvaging having been done by 19.6.1976, the claim for recovery of the amount incurred in the salvage operation was barred by limitation.

5. The trial judge rejected the prayer for amendment holding that the amendment would introduce a new cause of action and that the claim was barred by limitation.

6. From the facts narrated above, it is clear that the plaintiff instituted the suit for recovery of an amount estimated by it to be the expenses likely to be incurred by it for the salvage of and repairs to the barge. Before undertaking the operation, it made a demand of the estimated expenses and when the defendant did not comply, it filed the suit for recovery. The sum sought to be recovered was not the actual amount spent but was an estimate. No doubt, the salvaging was done sometime before the institution of the suit and the plaintiff was aware of the exact amount. But it proceeded to file the suit on the estimate. It is also not correct, as contended by the defendant, that a suit for recovery of the amount actually incurred in carrying out the salvage operation would, on the date the application for amendment was filed, be barred by limitation. Because the amount for which the suit was filed covered the amount which the plaintiff claimed to have incurred in carrying of the salvage operation. It was alleged in the amendment petition that a sum of Rs. 1,38,815.48 was spent in the salvage of the barge. Hence the amount originally claimed in the suit covered the said amount. The only other question is when the salvage had already been done by the date of institution of the suit, whether the plaintiff should be allowed to amend the plaint by alleging that the salvage operation was carried out on 19. 6. 1976. In my opinion, this is not changing the nature of a suit, nor was the claim barred by limitation. I, therefore, hold that the learned trial Judge committed an error in exercise, of jurisdiction in refusing to allow the amendment as regards claim for recovery of the amount incurred for the salvage operation on the ground of limitation.

7. The next question is if the plaintiff should be allowed to introduce a claim for Rs. 1,35,224.90 representing the amount incurred for the repair of the barge. According to the plaintiff, the repair work was completed on 14.8.1980. The application for amendment was filed on 27.1.1981. Hence, a suit on the said cause of action was not barred on the date the application for amendment was filed. The question is if the plaintiff should have filed a separate suit for the said amount or could claim the amount in the pending suit ?

8. As I have already noted, the suit was filed for realisation of an amount estimated likely to be incurred by the plaintiff. Subsequent to the institution of the suit, repair work was undertaken and was completed. What was initially a claim on the basis of estimate or probable expenses, matured during the pendency of the suit into a claim based on actuals. The question is : Should the plaintiff be allowed to introduce the same in the plaint by suitable amendments ?

9. Mr. R. Mohanty, the learned counsel for the plaintiff-petitioner, has submitted that the claim for the amount actually spent on repairs was not a new case nor would its introduction alter the nature of the suit. When a separate suit for the amount can be filed, the Court should have exercised its discretion in permitting the plaintiff to amend its plaint.

Mr. B.B. Mohanty, the learned counsel for the defendant-opposite party, has, however, contended that the suit was based on an estimate. The claim on the basis of the actual expenditure was a new case and would prejudice the defendant considerably.

10. I have already held that inasmuch as the original claim in the suit covered the amount alleged to be spent on the salvage operation, the plaintiff cannot be refused its prayer for claiming recovery of the exact amount alleged to have been spent by it on the salvage operation. The plaintiff had claimed an amount for undertaking the repairs on the basis of an estimate. During the pendency of the suit, the repair work was undertaken. The plaintiff alleged that he incurred a sum of Rs. 1,35,224.90 for the repair of the barge. The event, i. e., the undertaking of the repair work and incurring the expenditure, happened after institution of the suit. The question is should the Court in its discretion take notice of the said event by permitting the amendment or drive the plaintiff to a separate suit

11. It is well settled that the Court is entitled to take notice of subsequent events and grant relief to the parties accordingly if by doing so it can shorten litigation and best attend the ends of justice. The object behind the principle is avoidance of multiplicity of proceedings. In considering such questions, the test is the real controversy test. In Ransom v. City of Pierre, 101 Fed. Rep. 665, Justice Thayer stated the principle in the following words :

'It is the duty of the Court which till retains the control of judgment to take such action as would shorten litigation, preserve the rights of both parties and best subserve the ends of justice.'

It has also been said that the right to take notice of the subsequent events is not only a power but may also sometime be the duty of the Court to do so. It is well fettled that if ends of justice should be subserved, an amendment of the suit on the basis of which the suit would be barred by limitation, may be allowed. Even in certain circumstances the Court can mould the relief or grant the appropriate relief under Order 7, Rule 7 if the Code of Civil Procedure, though there may not be a specific relief claimed therefor.

12. In this case, the basic facts alleged in the plaint are not touched, viz., the barge had been hired by the defendant and it capsized and sunk due to the fault or negligence of the defendant. As per the original plaint the claim was based upon the expenses likely to be incurred. By the amendment the claim was sought to be founded upon the expenses actually incurred. In my opinion, multiplicity of proceedings would be avoided, litigation between the parties centring on the controversy would be shortened by allowing the amendment. That way ends of justice would be better subserved than by refusing the amendment. When a separate suit seeking recovery of the amount incurred as expenses for the repair of the barge was not barred by limitation on the date of filing of the application for amendment, the controversy as in the original plaint is not changed in the slightest. The controversy as to whether the barge has been hired by the defendant and whether it capsized and sunk due to its fault or negligence would also continue to be an issue after the amendment. Certain questions which were premature as on the date of institution of the suit became certain by the time of filing of the application for amendment. Hence, it is all the more necessary that the amendment should be allowed and the parties proceed to trial on positive case. It is no doubt true that the prayer for amendment came after evidence of P. W. 1 was closed and the case was adjourned for further evidence on behalf of the plaintiff. But that has not been utilised as a ground by the Court below. I have gone through the evidence of P. W. 1. There is nothing in his evidence which the plaintiff is trying to get over by the amendment sought.

13. I am, therefore, of the view that the learned trial Judge failed to exercise jurisdiction vested in him by refusing the prayer for amendment of the plaint. I would accordingly vacate the order and allow the amendment. The amendment, however, was sought at a slightly belated stage after examination of P. W. 1. The defendant had to incur costs here and in the Court below. Certain amount of cost has been thrown away. I would, therefore, direct that the petitioner shall pay a sum of Rs. 1,000/- as costs to the counsel for the opposite party within two weeks from today, failing, which this revision shall stand dismissed and the order of the Court below rejecting the prayer for amendment shall stand.


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