1. This is a rule obtained by Messrs. Cox & Kings (Agents) Limited against an order of Mr. H. D. Loomba, Subordinate Judge, 1st Class, Delhi, dated 21st July 1952 allowing amendment of the plaint.
2. The plaintiff company brought a suit for the recovery of Rs. 17,239/3/- against the Punjab National Bank, Limited on 31st July 1950. On 30th August 1950 they made an application under Order 1, Rules 1, 3 and 10 and Order 6, Rule 17 and Section 151, Civil P. C., for amendment and addition of the present petitioners as defendants in the suit.
In paragraph 3 of this petition it is stated that they had by an oversight missed to implead Messrs. Cox & Kings as defendants and were desirous of adding them as parties. Along with this they filed an amended plaint which is dated 29th August 1950. In this they repeated their allegations which they made in the original plaint the purport of which was that the plaintiffs had suffered damage due to the negligence of defendant No. 1, the Punjab National Bank and/or their Clearing Agents Messrs. Cox & Kings, Limits ed. On 7th December 1950 Mr. Mehr Singh Chadda impleaded defendant No. 2 and issued notice to them. The written statement of the Punjab National Bank, although dated the 15th January was filed on 21st February 1951.
3. On 20th February 1951, Messrs. Cox & Kings, Limited made an application objecting to their being impleaded and also said that the plaint disclosed no cause of action against them. On 20th April 1951 the learned Judge framed issues, as to whether defendant No. 2 is a necessary party and whether the plaint disclosed any cause of action against them. Question of jurisdiction was also raised, but that was decided under Section 20(b), Civil P. C.
4. On 24th January 1952 the plaintiffs filed another application for amendment in which they stated that for the first time in the written statement of defendant No. 1 it was disclosed that they had an express and implied authority to nominate another person as agents to carry out the work of agency entrusted to them by the plaintiffs and that in exercise of that authority they had appointed defendant No. 2 to clear the goods of the plaintiffs, and that if that position was correct, then defendant No. 2 would be a substituted agent of the plaintiffs. They added 'then in such a case the plaintiffs' contention is that defendant No. 2 is, in the alternative, liable for the plaintiffs' claim in suit'. In paragraph 4 they stated as under: '4. That the plaintiff has alleged in the plaint that he has suffered lasses on account of acts of gross negligence on the part of defendant No. 1 and/or his clearing agents Messrs. Cox and Kings (Agents) Limited, defendant No. 2. The plaintiff respectfully submits that gross negligence and wilful wrong mean one and the same thing, but with a view to remove any room for doubt the plaintiff wishes to make necessary amendments in the plaint and add that both the defendants are also guilty of wilful wrong in respect of the various items of losses suffered by the plaintiff and claimed in the plaint.' This amendment was allowed by Mr. Loomba and that is the matter now before me.
5. In the original plaint the plaintiffs had based their cause of action on the negligence of defendant No. 1 or their Clearing Agents Cox & Kings. In the first amended plaint except that they added the name of defendant No. 2 nothing substantial seems to have been done. But in the amendment which was allowed by the order under revision the position taken up by the plaintiffs Is that defendant No. 2 was acting as a substituted agent and the liability is based on that ground.
6. The opposite party before me has argued that really there is no addition made and it is only a clarification and essentially the cause of action remains the same. If it is more or less that, then it Is unnecessary and it falls within the first rule laid down by Mulla with regard to leave to amend at page 596 of the Code of Civil Procedure and therefore it should not be allowed and if it is an additional ground of attack as has been submitted, then - it introduces a case which would affect the rights of defendant No. 2 in so far as it takes away from him a legal right. It falls under Rule 3 laid down by Mulla on the same page. In my opinion, the learned Judge was in error in allowing this amendment at that stage. I would, therefore, set aside the order of the learned Subordinate Judge dated 21st July 1952 and make the rule absolute. The petitioners will have their costs against the plaintiff-respondents.
7. The parties are directed to appear in the trial Court on 1st March 1954.