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P.S. Kaicker and anr. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Case No. 492-D of 1959
Reported inAIR1961P& H60
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17
AppellantP.S. Kaicker and anr.
RespondentUnion of India (Uoi)
Appellant Advocate V.D. Mahajan, Adv.
Respondent Advocate R.S. Narula, Adv.
DispositionRevision dismissed
Cases ReferredChaube Jagdish Prasad v. Ganga Prasad Chaturvedi
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....orderi.d. dua, j. 1. these are two connected revisions (nos. 492-d and 493-d of 1959) filed by defendants against the order of the learned subordinate judge, delhi, dated 26th october, 1959, allowing amendment of the plaints under order vi rule 17 of the code of civil procedure in two connected suits arising out o the same facts brought by the union of india against the defendants. 2. the facts out of which the dispute arose need not be stated in detail but only broad outline need be given because that would be sufficient to give an idea about the nature of the allegations contained in the original plaint and the effect of the amendment sought. according to the plaintiff, p. s. kaicker s/o din dayal kaic-ker was appointed a special class apprentice for a period of six years from 2nd.....

I.D. Dua, J.

1. These are two connected revisions (Nos. 492-D and 493-D of 1959) filed by defendants against the order of the learned Subordinate Judge, Delhi, dated 26th October, 1959, allowing amendment of the plaints under Order VI rule 17 of the Code of Civil procedure in two connected suits arising out o the same facts brought by the Union of India against the defendants.

2. The facts out of which the dispute arose need not be stated in detail but only broad outline need be given because that would be sufficient to give an idea about the nature of the allegations contained in the original plaint and the effect of the amendment sought. According to the plaintiff, P. S. Kaicker s/o Din Dayal Kaic-ker was appointed a special class apprentice for a period of six years from 2nd September, 1946, on terms and conditions which were reduced to writing in an agreement signed and executed by and on behalf of the plaintiff, defendant P. S. Kaicker and his father Din Dayal Kaicker on 13th of November, 1948.

According to this agreement, on which the plaintiff specifically relied in the plaint, the plaintiff was to make payments to P. S. Kaicker including stipends, pay in the shape of dearness allowance, travelling allowance, school over-head charges and for certain other amenities, paragraph 1 of the plaint also states that p. S. Kaicker had to be given training by the plaintiff in India and in the United Kingdom according to the terms o the said agreement and on completion of the training he was bound, if the plaintiff so desired, to serve the Indian Govt. Railways in the Mechanical and Transport (power) Dept. for three years and so on.

In paragraph 2 of the plaint, it is stated that in March, 1951, P. S. Kaicker asked for being transferred to the East Punjab Railway against his original choice, but before the decision of the Government rejecting this request could be communicated to him, he took leave and after the expiry of the period of leave he did not resume duty. On or about 17th of May, 1951, so proceeds the plaint, P. S. Kaicker wrote to the Government that he was forced to stay away from his duty and that he was not reporting back for duty.

In spite of letter, dated 19th February, 1.952, sent to P. S. Kaicker by the Mechanical Engineer, Central Railway, advising him that his action in not reporting back for duty would amount to his having terminated his apprenticeship without the written consent of the Government, he (P. S. Kaicker) did not resume duty. This conduct, according to the plaint, amounted to termination of his apprenticeship by P. S. Kaicker without the written consent of the Government. Reference is next made in the plaint to clause 18 of the above mentioned agreement dated 13th November, 1948, tinder which P. S. Kaicker's father. Din Dayal Kaicker, is bound in such circumstances to refund to the plaintiff the amount of stipends and pay amounting to Rs. 8,568/11/-.

3. This, in substance and essence is the nature of the suit filed against P. S. Kaicker. A similar suit relying on these facts was also filed against Pin Dayal Kaickejr and, as alreadyobserved, in these two suits applications for amendment were favourably disposed of by the impugned order.

4. This suit was resisted on various grounds including denial of the agreement dated 13th-oi November, 1948. It was further averred that the plaintiff had not fulfilled its part of the alleged agreement although it is also pleaded that according to the alleged agreement the defendant was to be sent to the United Kingdom for further studies for two years on completion of four years' training in India and that he was not being sent to the United Kingdom after his completion of four years' apprenticeship in this-country.

It was in this form that the defendant pleaded breach of agreement on the part of the plaintiff and justified his omission to resume duty. There was also a general denial or non-admission of the various dates and details of facts as given in the plaint. Jurisdiction of civil Courts was also questioned and various other hypertechnical pleas were put forward against the frame and competency of the suit.

At this stage we are not concerned with the various preliminary objections because the trial on the merits proceeded and it is agreed at the Bar that when the case was ripe for arguments, the plaintiff put in an application for amendment of the plaint with the object of clarifying the position and for the determination of the read question in controversy between the parties. One of the amendments sought was in paragraph I of the plaint. In the sentence 'Defendant had to be given training by the plaintiff in India and in the United Kingdom according to the terms of the said agreement', the following sentence was sought to be substituted:--

'Defendant had to be given training by the plaintiff in India and/or in the United Kingdom subject to and in accordance with the terms of the said agreement.'

After the close of paragraph 1 of the plaint, the following clauses were sought to be added:--

'Clauses I and II of the said agreement are relevant in this respect and are reproduced below:--

'(I) The apprentice of his own free will and with the consent of the party of the second part hereby binds himself to serve the Government as a Special Class Apprentice for a period of six years commencing from the second day of September, Nineteen Hundred and forty six and the Government engages to give him practical training in India and/or the United Kingdom as hereinafter mentioned provided always that the Government may at their discretion alter the courses or places of training. And they shall have power to terminate the apprenticeship before the expiration of the said period of six years as hereinafter provided.

'(II) The apprentice shall not on any pretence absent himself from his duties without having first obtained the permission of the proper person having authority over him or in case of sickness or accident without forwarding a medical certificate satisfactory to such person.''

It is these prayers which were allowed by the trial Court and which are being seriously assailed before me in revision. I have not mentioned other minor amendments because the counsel did not take any serious objection to those amendments and concentrated his arguments on the ones mentioned above challenging them as tainted with the infirmity of being beyond the scope of Order VI rule 17 of the Code of Civil Procedure.

5. The learned counsel for the petitioners has submitted that on two earlier occasions also the plaintiff had asked for certain amendments. On the first occasion the prayer was allowed but on the second the application was dismissed on the ground that it had been put in by an unauthorised person and, therefore, was not in accordance with law. It is strenuously urged that the present petition is not only belated but it also introduces a new case which is wholly inconsistent with the one originally pleaded in the plaint. In support of his contention the counsel has relied on the following authorities, among others. The first case cited is Gambhirmal v. Gyanchand, AIR 1950 Raj 20, a judgment by Bapna J. The following observations at page 24 of the report are particularly relied upon:--

'The questions in controversy between the parties, which have to be brought out clearly and decided, are, in my opinion, the questions in controversy between the parties when they join issue, that is when the defendant puts in his written statement, they do not include new questions which the parties neither wished nor intended then to dispute, but which at a later stage of the the proceedings, either because any party changed its mind or because something had happened thereafter, any party thinks it profitable to dispute.'

From these observations the learned counsel seeks to infer that nothing which happens after the issuer are settled can justify amendment of the pleadings. With this broad and sweeping proposition I am wholly unable to agree. In Manji v. Ghulam Muhammad, ILR 2 Lah 73: (AIR 1921 Lah 157), Sir Shadi Lal, while delivering the judgment on behalf of the Division Hench, made the following pertinent observations:

'It is clear, however, that a slight amendment of the plaint would get over the technical objection raised by the appellants, and there can be no doubt that the present Code of Civil Procedure confers a plenary jurisdiction upon the Court to order an amendment of the plaint even in the highest Court of Appeal.'

With this view of law I am in respectful agreement and if the decision in Gambnirnial's case, AIR 1950 Raj 20 lays down the law differently then, with respect, I am constrained to record my dissent. However, as I read the judgment in Gambhirmal's case, the observations quoted above have to be read in their own context and in the background of the facts with which the Court had to deal. Those observations were in my view not intended to lay down any rule of law different from what Sir Shadi Lal laid down.

6. In the East Bengal Commercial Bank v. Surendra Narayan Saha 39 Cal WN 1235, a Division Bench of the Calcutta High Court on appeal allowed amendment of pleadings. The following discussion on the point is worth reproducing:--

''In the plaint the pleader seems to rely on the hand note to establish his claim. If he had followed the rules of pleading, and set out the whole of the material facts, he could have prosecuted both claims without difficulty. The Plaintiffs went to law to recover the money due under the loan. It is inconceivable that the lawyer who drew the plaint had instructions from the Bank to sue on the hand note alone, and ignore the loan transaction itself. But for some reason the pleader did this, and it seems inequitable that his clients, the plaintiffs, should be penalised for it. Order 17 of the First Schedule of the Civil Procedure Code is as follows:--

'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.' 'The difficulty lies in applying this rule where, as here, the defendant claims a time bar under the statute of limitations. In Weldon v. Neal, (1884) 19 QBD 394 Lord Esher said: 'We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the Opposite Party as existing at the date of such amendments. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so'. In Charan Das v. Amir Khan, 47 Ind App 255r (AIR 1921 PC 50), in the Privy Council, Lord Buckmaster said: 'Though the power of a Court to amend the plaint should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases, see for example Mohammad Tahir AH v. Butta Koer, 11 Moo Ind App 468 at p. 485, where such considerations are out-weighed by the special circumstances of the case.'. In Charan Das's qase, 47 Ind' App 255:(AIR 1921 PC 50) the trial Judge and the first Appellate Court refused to allow the plaint to be amended by claiming possession on pre-emption, since the time had expired for bringing a suit to enforce that right. Upon a second appeal the Court allowed the amendment to be made, and the Privy Council confirmed this. Lord Buckmaster said: 'All that happened was that the Plaintiffs, through some blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit.' In this present case it seems to me that the claim on the loan itself was not raised, through some blundering on a lawyer's part, and thereby the plaintiffs' clear rights were jeopardised. The Defendants will not be. and never were, prejudiced in their defence (which was a total denial of the whole transaction). I am of the opinion, therefore, that having regard to all the circumstances of the case, the amendment originally asked for should beallowed, and the amendment must be made within two days.'

In the exceptional circumstances of the case in Secretary of State v. I. M. Lall, AIR 1945 FC 47, the Federal Court felt that to secure justice leave to amend the plaint should be given at the appellate stage.

7. The next authority cited by Mr. Mahajan is Kanda v. Waghu, AIR 1950 PC 68. In this case, however, all that their Lordships of the Privy Council laid down is that the powers of amendment must be exercised in accordance with legal principles and that an amendment which involves the setting up of a new case and alters the real matter in controversy between the parties cannot be allowed. For this ratio reliance was placed on Ma Shwe v. Maung Mo Hnaung, ILR 48 Cal 832: (AIR 1922 PC 249).

The proposition oE law adumbrated in this decision is unexceptionable and cannot be disputed. The question, however, is whether in the instant case there is any new case being set up which alters the real and crucial matter in controversy between the parties. Chunnialal v. Deoram, AIR 1948 Nag 119, a decision by Puranik J. is really the principal authority On which Mr. V. D. Mahajan has concentrated most. Emphasis has particularly been laid on the observation at page 121 to the effect that the real questions in controversy between the parties are those on which issues are framed In the trial Court.

On the facts of that case the learned Judge felt that the written statement there was being sought to be amended so as to introduce a different set of circumstances inconsistent with those pleaded to begin with, and it is in that context that the observation relied upon must be read. The passage should not he taken out of the context in isolation and construed as if it is a part of a statute.

In Karam Dad v. Mt. Mohammad Bibi, AIR 1942 Lab 1, a Full Bench of five Judges of the Lahore Court, similarly, on the facts and circumstances of that case, disallowed amendment in the High Court holding that to allow a plaint to be amended at that stage would be introducing an entirely inconsistent case with what the plaintiffs had alleged in the beginning and to which they had stuck and stuck successfully right upto the reference to the Full Bench. In those circumstances, prayer was negatived under Order VI rule 17 of the Code of Civil Procedure.

The Court also felt that on the facts and circumstances of that case, no ground was made out for a remand under Section 151 of the Code of Civil Procedure, the case not being covered by Order XLI rule 25. The last case to which Mr. Mahajan has made a reference is Harish Chandra Bajpai v. Triloki Singh. (S) AIR 1957 S C 444, where while dealing with an appeal in an election matter the Supreme Court observed that it was an exercise of sound and Judicial discretion not to permit amendment raising a new charge. In my opinion, this observation is hardly of much assistance to the counsel for the petitioner.

8. The law as to amendment of pleadings is by now firmly established and there can hardly beany dispute as to the basic principles which should guide the exercise of discretion of the Court in permitting amendment of pleadings. Venkatarama Ayyar J., delivering the judgment of the Supreme Court in L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., (S) AIR 1957 SC 357, put the position thus:--

'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 the application. But that is a factor to be taken into account in 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. In 47 Ind App 255: (AIR 1921 PC 50), the Privy Council observed:--

'That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by special circumstances of the case' 'Vide also Kishan Das y. Rachappa, ILR 33 Bom 644.'

This decision was approved by the same Court in Pirgonda Hongonda Patil v. Kalgonda, (S) AIR 1957 SC 363. In the last quoted case, the trial Court had refused amendment but the High Court pointing out that the mistake in the trial Court was more that of the learned pleader, allowed the proposed amendment observing that it did not alter the nature of the relief sought. The Supreme Court affirming the views of the High Court expressed itself thus in the concluding portion of the judgment:-- '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.''

9. The true principles on which discretion to allow or to refuse amendments is to be exercised were thus stated by Bowen L. J. in Cropper v. Smith (1884) 26 Ch. D. 700, at page 710:

'Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity, with what I have heard laid down by other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if is can he done without iniustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.'

Again, a little lower down:--

'It seems to me that as soon as it appears that the way in which a party has framed hiscase will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injusice, as anything else in the case is a matter of right. It was said by Mr. Barber in his very powerful speech to us, 'You are taking away an advantage from the plaintiffs who have got judgment below, by making an amendment at the last moment.' In one sense we should be taking away an advantage from them, but only an advantage which they have obtained by a mistake of the other side, contrary to the true bearing of the law on the rights of the parties.''

10. In view of what has been stated above, it appears to me that according to the clear language of Order VI Rule 17, an amendment can be allowed at any stage of the proceedings, and all such amendments must be allowed if they are necessary for the purposes of determining the real questions in controversy between the parties. Where a litigant does not act mala fide or has not by his blunder done some injury to his opponent which is not capable of being compensated for by costs or otherwise, the amendment should, in the interest of justice, be allowed, provided it is necessary for the purpose of adjudicating upon the real controversy between the contestants; and this is so notwithstanding the negligent or careless omission in the first instance.

11. Mr. Mahajan, however, contends that keeping in view the fact that the plaintiff, who had the original agreement in its possession, chose not to plead that it was dependent on their sweet will whether or not to send P. Section Kaicker to United Kingdom, introduction of this plea now by amendment amounts to introduction of an entirely new case. I am disinclined, as at present advised, to uphold this contention. The real controversy in substance between the parties, as appears to me, is what were the terms of the agreement between the parties and who committed breach and what is the effect of such breach. The terms of the agreement were specifically pleaded in the plaint and indeed the whole case of the plaintiff hinges on the terms of the agreement.

As a matter of fact, although the defendant pleaded a sweeping denial of all material allegations in the plaint, he nevertheless urged in the alternative that the plaintiff had been guilty of breach of the terms of the alleged agreement. It is thus obvious that the real and essential controversy hinges round the terms of the agreement which truly calls for adjudication in the suit. In my opinion, therefore, the defendants are not being taken by surprise and this is a case in which payment of costs can really be held to compensate the defendants. Amendment in this case would clearly advance and promote rather than retard or defeat the ends of justice, as has been suggested by Mr. Mahajan.

12. But assuming that the amendment has been allowed erroneously, can it be said that the defendants can invoke the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure to have the impugned order reversed? Mr. Mahajan has in this connection again placed reliance on the judgment of Puranik,. J. inAIR 1948 Nag 119. According to the learned counsel the learned Single Judge of the Nagpur High Court interfered) on revision with an amendment which was erroneously allowed by the lower Court in that case.

13. The scope and effect of Section 115 of the Code of Civil Procedure has been authoritatively laid down both by the Judicial Committee of the Privy Council and by the Supreme Court. As early as 1894 in Rajah Amir Hussen Khan, v. Sheo Bakhsh Singh, 11 Ind App 237 (PC), the Privy Council, while commenting on Section 115 of the Code of Civil Procedure, observed as follows:--

'The question then is, did the Judges of the Lower Courts in this case, in the exercise o their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.'

Again in Balkrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261: (AIR 1917 PC 71), the Board stated the position thus:--

'it will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.'

The scope of this provision of law was again examined and the previous view affirmed by the Privy Council in Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, 76 Ind App 67: (AIR 1949 PC 156). The question was exhaustively discussed by Mahajan J. (as he then was) in Keshardeo v. Radha Kissen, AIR 1953 SC 23 and the entire case law was reviewed in a very illuminating judgment.) Indeed in than case the Supreme Court set aside the order of the High Court holding that the latter had acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge and remanded the case for further enquiry. Recently, the Supreme Court had again in Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi, AIR 1959 SC 492 occasion to consider the scope and effect of Section 115 of the Code of Civil Procedure and J. L. Kapur, J. who prepared the judgment on behalf of the Bench, after reviewing the earlier case law, concluded the discussion in the following words:--

'Thus if a subordinate Court has jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But if on the other hand it decides a juriedictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested, then the power of interference under Section 115 Civil P. C. becomes operative.'

14. I must, however, not be understood to lay down that in no case can the High Court interfere in revision with an interlocutory order of the Court below allowing amendment of pleadings. There may be cases in which the order of the Court below is tainted with illegality or material irregularity in the exercise of its jurisdiction which would attract the provisions of Section 115 of the Code of Civil Procedure and the High Court, in its discretion, would feel called upon to interfere so as to advance and promote the cause of justice. But in order to determine whether or not to exercise its revisional jurisdiction, this Court must consider the nature of the infirmity of the impugned order, the truly essential and real nature of the controversy in the suit, and whether on the facts and circumstances of the case the impugned order promotes or defeats the ends of justice. This is how, in my opinion, this Court has to approach the question.

15. At this stage I would also like to observe that the granting or refusing an application for amendment of pleadings is essentially and eminently a matter for the exercise of discretion ot the Judge to whom the prayer for amendment is made, with which even the appellate Court should in normal circumstances, not interfere unless satisfied that the Judge has either applied a wrong principle of law or he, can be said to have reached a conclusion which would work an obvious and manifest injustice in other words the exercise ot discretion is perverse. To rule otherwise and to concede to the Court of appeal a wider power of interference might well mean substitution of discretion of the Court of appeal in place of that of the Court initially called upon to grant the amendment. If power even of the appellate Court to interfere with the exercise of discretion of the lower Court is so circumscribed, the power of the revisional Court to interfere with the discretionary orders must, from the very nature of things, be still more limited and circumscribed.

16. On the facts and circumstances of the present case, not only do I feel that this Court has no power to interfere wih the impugned order under Section 115 of the Code of Civil Procedure, but I am also inclined, as at present advised, to hold that no irreparable injustice has been shown to have been clone to the defendant petitioners and even if I had the power I would feel most reluctant to interfere. On the finding of the Court below that the amendment is necessary for the purposes of deriding the real points in controversy between the parties, it is hardly within my power to go into the merits under Section 115 of the Code of Civil Procedure.

17. Without trying and adjudicating upon this vital point in the case, in my view, the real matter in issue between the parties would have remained undecided and the case would have proceeded on an assumed state of the facts which more likely than not, were at substantial variance with the true facts of the case.

18. Mr. V. D. Mahajan, in the course of arguments faintly suggested that the petition for amendment was not signed by an authorised person. This point does not seem to have been urged in the Court below. Had it been taken there, the defect, if any, would easily have been remedied. However, before me also this point his not been substantiated and indeed has not been seriously pursued.

19. In view of the above discussion, these petitions fail and are hereby dismissed. In the circumstances there will be no order as to costs.

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