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Kesho Ram Passey Vs. Dr. P.C. Tandon and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 264 of 1951
Judge
Reported inAIR1952P& H221
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantKesho Ram Passey
RespondentDr. P.C. Tandon and anr.
Appellant Advocate K.L. Gosain and; Hem Raj Mahajan, Advs.
Respondent Advocate R.P. Khosla, Adv.
DispositionRevision dismissed
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1. on the 27th of november, 1947, the plaintiff brought the present suit foe ejecting the defendant on the ground that he had sublet it to a certain named individual and for failure to pay rent. , said that it was not necessary to decide the point, but he had a very strong opinion that the amendment could not be allowed, inasmuch as it related to a..........those rules are made, and i cannot see how, without the consent of the parties, the court can so amend a writ as completely to change the cause of action so as to bring in a cause of action which was non-existent at the time the writ was originally issued.'4. this case went up in appeal. the judgment of the court of appeal is given in the same volume of the report (1932) 1 k b and begins at p. 423. at p. 429. scrutton, l. j., said:'when the writ was issued only the first instalment was due, but when the case came on for hearing the second instalment had fallen due. the official referee allowed the plaintiff to amend the writ by adding to his claim the second instalment. this was, i think, contrary to the universal practice.'5. as i said before, this application for revision fails and.....
Judgment:
ORDER

Soni, J.

1. On the 27th of November, 1947, the plaintiff brought the present suit foe ejecting the defendant on the ground that he had sublet it to a certain named individual and for failure to pay rent. On the 29th of July, 1949, the trial Court dismissed the suit. There was an appeal from the order of dismissal and on the 3rd of August, 1950, the Court of Appeal remanded the case. When the case came to the trial Court on remand, on the 15th of January, 1951 the plaintiff applied to the trial Court to amend the plaint. The amendment sought to be made was to add two further grounds for ejecting the defendant, the grounds being that in 1950 the defendant had sublet the premises to a named person different to the one to whom he had(sic)ublet in 1947 and that structural alterations andadditions were made to the premises on a date unspecified but obviously from the context long after 1947 and sometime in 1950. The trial Court refused the amendment. The plaintiff has come up for revision.

2. In my opinion this application is not an application for amendment proper. This application is an application to add causes of action which did not exist at the time when the suit was brought in 1947. The defendant in order to meet the new grounds will have to adduce evidence on different points altogether which did not exist at the time when the suit was brought. This would unfairly prejudice him. If the plaintiff has a grievance against the defendant for giving him other causes, he must pursue his remedy by another suit. His application was, in my opinion, rightly dismissed by the trial Court. This revision petition is dismissed with costs,

3. After I had dictated this judgment I have come across the case. 'ESHELBY v. FEDERATED EUROPEAN BANK, LTD.' (1933) 1 K B 423, Which supports me. The headnote of that case runs as follows:

'By contract under seal dated August 28, 1930, the plaintiff agreed with the owners of a club house in Soho to carry out certain alterations and repairs for the sum of 1500 to be paid in four equal instalments of 375 on October 22 1930. January 15, 1931, April 15 1931, and July 15, 1931, subject to the works being duly executed, and the defendants agreed that upon any default in payment, written notice of which should be given by the plaintiff to the defendants within six days, the defendants would themselves make the payment so in default to the plaintiff. The proprietors did not pay the first instalment when due. No notice of default was given by the plaintiff to the defendants, but on November 27, 1930, the plaintiff issued a writ against the defendants for the amount of the first instalment. The action came before the official referee on March 16, 1931, and lie then gave leave to the plaintiff to amend his claim by adding the amount of the second instalment which fell due on January 15, 1931, and was still unpaid. Acting on the report of a surveyor, the referee found that at the date of the writ ft was necessary to spend 80 on the premises to put them into the condition required by the contract, but subject to this deduction he gave Judgment for the plaintiff for the amounts claimed. The defendants appealed: Held, that the amendment was not justified, inasmuch as it admitted a new cause of action which did not exist at the date of issue of the writ.'

Swift, J. In dealing with the case said:

'There is a great deal to be said for the view expressed by the official referee, but in my opinion he had no power to make the amendment to the claim. When an action has begun the Court has, at all its stages until it is finally determined, ample powers of amendment, and it is the duty of the Court to exercise those powers. The rules of the Supreme Court provide in Order XXVIII Rule 1: 'The Court or a Judge may at any stage of the proceedings, allow either party to alter or amend his indorsement or 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.' By Rule 12 of that Order: 'The Court or a Judge may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.' In some cases neither party has a very clear and definite view of the real position until the witnesses have been examined and cross-examined, and documents have been criticised in open Court. If the true points at issue are to be determined, and real justice to be done, the pleadings should not be too rigidly adhered to, and the Court should make such amendments as are necessary in the proceedings for the real rights of the parties to be determined. But here the learned official referee seems to me to have gone much further than amending the proceedings. He has allowed the plaintiff to taring into this action an entirely fresh cause of action, arising after this action had been started, and he has done that without the consent of the defendants. In TOTTANHAM LOCAL BOARD OF HEALTH v. LEA CONSERVANCY BOARD', (1885-86) 2 Times L R 410, an action brought to restrain the Lea Conservancy Board from stopping the outlet of the effluents from the sewage works of the plaintiff Board into the River Lea, it was sought to amend the statement of claim by stating facts relating to some proposed new works, and adding an alternative claim for injunction to restrain the Lea Conservancy Board from interfering until it should be ascertained whether the proposed new works were efficient; Pearson, J., refused the application, and from that there was an appeal. Cotton L. J., said he would give no opinion whether, the Court had power to allow the proposed amendment, but that if there were power he thought it ought not to be exercised in the circumstances of that case. Bowen, L. J., said that it was not necessary to decide the point, but he had a very strong opinion that the amendment could not be allowed, inasmuch as it related to a cause of action which did not exist at the time when the writ was issued. Fry, L. J., did not express any opinion upon the matter at all. So far as I know, Bowen, L. J.'s remarks in that case are the only authority which' is to be found in this country, with the exception of an observation of Sir George Jessel in a case to which I will immediately allude, upon the point whether or not a writ can be amended so as to include a cause of action which was not in existence at the time when the writ was issued. I can find nothing in the rules which justifies such an amendment. To bring in such a cause of action does not seem to me to be amending the proceedings at all; it admits a new cause of action, and one which could not have been sued upon at the time the writ was issued. An Irish case; 'CREED v. CREED', (1913) 1 Ir R 48 at p. 50 seems directly to decide that such an amendment' cannot be made. The headnote is that 'A, B, believing that X died intestate, took out administration intestate to him, and commenced an action as such administrator against C. D. C. D., who had been aware that X, left a will, appointing him executor, declared that fact for the first time in his defence, and thereupon A, B took out administration with the will annexed (C, D, having renounced), and sought to amend the pleadings accordingly. Held, that A. B.'s application must be refused, as at the date of the issue of the writ she had no title to sue.' Barton, J., said: 'I am of opinion that this summons should be dismissed wth costs, as the plaintiff's letters of administration were void 'ab initio'; and she had no title to sue when the action was brought.' Here there was no right on the part of the plaintiff in this action to sue for the second instalment when the action was brought, and 'CREED v. CREED', (1913) 1 Ir R 48 at p. 50 is helpful in the absence of any express rule on the matter in our own Courts or in our own Rules of Procedure, as showing that such a cause of action cannot bo added to the writ here.'

Swift, J., then dealing with the judgment of Jessel, M. R. given in 'ORIGINAL HARTLEPOOL COLLIERIES CO. v. GIBB, (1877) 5 Ch D 713. After giving a quotation from the learned Master of the Roll's judgment, Swift, J., said that Jessel, M. R. had made this observation at page 719:

'By the leave of the Court you can do anything. That is another matter; because the Court can give leave to amend on both sides, and can easily amend the writ. There I respectfully differ. It is not correct to say 'By leave of the Court you can do anything.' It is certain that by leave of the Court you cannot do everything. The Court is limited in giving its leave to the powers which are conferred upon it by the Rules and by the statute under which those Rules are made, and I cannot see how, without the consent of the parties, the Court can so amend a writ as completely to change the cause of action so as to bring in a cause of action which was non-existent at the time the writ was originally issued.'

4. This case went up in appeal. The judgment of the Court of appeal is given in the same volume of the Report (1932) 1 K B and begins at p. 423. At p. 429. Scrutton, L. J., said:

'When the writ was issued only the first instalment was due, but when the case came on for hearing the second instalment had fallen due. The Official Referee allowed the plaintiff to amend the writ by adding to his claim the second instalment. This was, I think, contrary to the universal practice.'

5. As I said before, this application for revision fails and is dismissed with costs. Parties are directed to appear before the trial Judge on the 19th December 1951.


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