Skip to content


A.K. Gupta and Sons Vs. Damodar Valley Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1967SC96; 1966(0)BLJR340; [1966]1SCR796
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2 - Order 6, Rule 17 - Order 21, Rules 97 and 103
AppellantA.K. Gupta and Sons
RespondentDamodar Valley Corporation
Cases ReferredPrivy Councilin Ma Shwe Mya v. Maung Mo Hnaung L.R.
Excerpt:
civil - amendment of suit - section 153 and order 6 rule 17 of code of civil procedure, 1908 - appellant filed suit claiming declaration that on proper interpretation of clause entitled to enhancement of 20% over tender rates - trial court interpreted clause in favour of appellant and decreed suit - respondent went up in appeal to high court - decided that suit is not maintainable in form in which it is framed - high court disallowed appellant to amend suit - appeal preferred - supreme court observed amendment does not include new case or cause and claim for money was in substance in plaint from beginning though not formally made - court under section 153 and order 6 rule 17 may allow amendment of claim which had been time barred if it causes no prejudice to other party - case remanded.....the judgment of sarkar and ramaswami jj. was delivered by sarkar j. raghubardayal j. delivered a dissenting opinion. sarkar, j.1. the question raised in this appeal is whether the high court was in errorin refusing permission to the appellant to amend its plaint. we think it was. 2. the appellant had done work for the respondent under a contract whichonly specified the rates for different categories of work. the contractcontained the following clause: ' this quotation is based on prevailinglabour rate of rs. 1-4-0 per cooly but it there is increase of labour rate of morethan 10% in any particular month, the proportionate increase in rate will becharged. subsequent to the making of the contract there was in increase in thelabour rate per cooly by 20%. the appellant claimed that under the.....
Judgment:

The Judgment of Sarkar and Ramaswami JJ. was delivered by Sarkar J. RaghubarDayal J. delivered a dissenting Opinion.

Sarkar, J.

1. The question raised in this appeal is whether the High Court was in errorin refusing permission to the appellant to amend its plaint. We think it was.

2. The appellant had done work for the respondent under a contract whichonly specified the rates for different categories of work. The contractcontained the following clause: ' This quotation is based on prevailinglabour rate of Rs. 1-4-0 per cooly but it there is increase of labour rate of morethan 10% in any particular month, the proportionate increase in rate will becharged. Subsequent to the making of the contract there was in increase in thelabour rate per cooly by 20%. The appellant claimed that under the clause itwas entitled to the whole amount of the increase while the respondent contendedthat it was entitled to a part of it only. This was the only dispute betweenthe parties in respect of the contract. There was no other dispute eitherconcerning the quantity or quality of the work done or otherwise howsoever.

3. The appellant filed a suit against the respondent only claiming adeclaration that on a proper interpretation of the clause it was entitled to anenhancement of 20% over the tendered rates as the sole difference between theparties was about the interpretation. The plaint stated that work had been doneunder the contract and that the value of the suit for purposes of jurisdictionwas Rs. 65,000 but as it was a suit declaration only court fees on that basishad been paid. The respondent in its written statement challenged theappellant's interpretation of the clause but did not dispute any material factor that the only dispute was about the interpretation. The written statementconcluded by saying that the respondent was ever ready and willing and is stillready and willing to pay the legitimate dues to the plaintiff.

4. Before the learned trial Judge several issues were raised but it isnecessary to mention only two. One issue was as to the maintainability of thesuit in the form in which it had been framed and the other issue was as to theproper interpretation of the clause. The first of these issues was not pressedat the hearing. The other issue having been decided by the trial court infavour of the appellant, the suit was decreed. The other issues which had beenraised, had also not been pressed. The court had further given the appellantleave under O. 2 r. 2 of the code of Civil Procedure to sue later for theamount due under the contract.

5. The respondent then went up in appeal to the High Court at Patna. Therethe issue as to the maintainability of the suit was resuscitated and pressedand it was decided in the respondent's favour because of the terms of theproviso to s. 42 of the specific Relief Act, 1877. The correctness of this viewis not challenged in this Court. In the result the High Court dismissed thesuit.

6. Now, the appellant had in view of the High Court's decision as to themaintainability of the suit, sought its leave to amend the plaint by adding anextra relief in the following words: That a decree for Rs. 65,000 or such otheramount which may be found due on proper account being taken may be passed infavour of the plaintiff against the defendant. The amendment having beenrefused the present appeal has been preferred.

7. It is not in dispute that at the date of the application for amendment, asuit for a money claim under the contract was barred. The general rule, nodoubt, is that a party is not allowed by amendment to set up a new case or anew cause of action particularly when a suit on the new case or cause of actionis barred: Weldon v. Neale. 19 Q.B.D. 394 But it is also well recognisedthat where the amendment does not constitute the addition of a new cause ofaction or raise a different case, but amounts to no more than a different oradditional approach to the same facts, the amendment will be allowed even afterthe expiry of the statutory period of limitation: see Charan Das v. Amir KhanL.R. 47 IndAp 255 and L. J. Leach and Company Ltd. v. Jardine Skinner and Co. : [1957]1SCR438

8. The Principal reasons that have led to the rule last mentioned are,first, that the object of Courts and rules of procedure is to decide the rightsof the parties and not to punish them for their mistakes [Cropper v. Smith] andsecondly, that a party is strictly not entitled to rely on the statute oflimitation when what is sought to be brought in by the amendment can be said insubstance to be already in the pleading sought to be amended Kisandas Rupchand v.Rachappa Vithoba approved in Pirgonda Hongonda Patil v. Kalgonda ShidgondaPatil.

9. The expression cause of action in the present context does not mean veryfact which it is material to be proved to entitle the plaintiff to succeed aswas said in Cooke v. Gill in a different context, for if it were so, nomaterial fact could ever be amended or added and, of course, no one would wantto change or add an immaterial allegation by amendment. That expression for thepresent purpose only means, a new claim made on a new basis constituted by newfacts. Such a view was taken in Robinson v. Unicos Property corporation Ltd.and it seems to us to be the only possible view to take. Any other view wouldmake the rule futile. The words new case have been under stood to mean new setof ideas : Dornan v. J. W. Ellis and Co. Ltd. This also seems to us to be areasonable view to take. No amendment will be allowed to introduce a new set ofideas to the prejudice of any right acquired by any party by lapse of time.

10. Now, how does the present case stand on these principles? Does theamendment introduce a new cause of action or a new case? We do not think itdoes. The suit was on the contract. It Sought the interpretation of a clause inthe contract only for a decision of the rights of the parties under it and forno other purpose. It was the contract which formed the cause of action on whichthe suit was based. The amendment seeks to introduce a claim based on the samecause of action, that is, the same contract. It introduces no new case orfacts. Indeed the facts on which the money claim sought to be added is basedare not in dispute. Even the amount of the claim now sought to be made byamendment, was mentioned in the plaint in stating the valuation of the suit forthe purposes of jurisdiction. The respondent had notice of it. It is quiteclear that the interpretation of the clause was sought only for quantifying themoney claim. In the written statement the respondent specifically expressed itswillingness to pay the appellant's legitimate dues which could only mean suchamount as might be due according to the rates applicable on a properinterpretation of the clause. The respondent was fully aware that the ultimateobject of the appellant in filing the suit was to obtain the payment of thatamount. It was equally aware that the amount had not been specifically claimedin the suit because the respondent had led the appellant to believe that itwould pay whatever the court legitimately found to be due. It in fact said so inthe written statement. If there was any case where the respondent was notentitled to the benefit of the law of limitation, the present is that one. Therespondent cannot legitimately claim that the amendment will prejudiciallyeffect his right under that law for really he had no such right. It is a casein which the claim for money was in substance in the plaint from the beginningthough it had not formally been made.

11. This, therefore, seems to us to be pre-eminently a case for allowing theamendment. The authorities also lead us to the same view. In L. J. leach andCo. case : [1957]1SCR438 a suit for damages for conversion was by amendmentallowed to be converted in to a suit for damages for beach of contract afterthat claim had become barred, the necessary facts, as in the case in hand,being already barred, the necessary facts, as in the case in hand, beingalready in the pliant. In Charan Das's case [L.R. 47. LA. 255.] an amendmentadding a claim for possession after a suit for such claim had become barred wasallowed in a suit which originally had only claimed a declaration of a right topre empt. In the last mentioned case, the plaintiff had in spite of warning atthe earliest stage refused to make the amendment which he later sought and got.It was, therefore, a case where the plaintiff had initially deliberatelyrefused to make a claim and an amendment being allowed later permitting thatclaim to be raised after it had become barred. It was in a sense a strongercase than the present one where the plaintiff had omitted to make the claiminitially on a wrong notion and a wrong legal advice. Punishing of mistakes is,of course, not administration of justice.

12. It is true that the plaint does not set out the details of the workdone. But there never was any dispute about them. Indeed the respondent hadprepared a final bill of the appellant's dues for the work done under thecontract and the appellant had accepted that bill as correct except on thequestion as to the proper rate chargeable under the clause. Strictly thedetails of the work done were not necessary in the plaint for it would be awaste of time of a court to go into them, it not being unusual to direct anenquiry by a Commissioner or a subordinate office about such details when, as inthe present case, the items of work done are innumerable. It would be enough insuch eases to file the details before the authority making the enquiry.Besides, in Pirgonda Hongonda Patil's case : [1957]1SCR595 in a suit for adeclaration of title, this court permitted an amendment setting out thedetailed facts on which the title was claimed after the suit had become timebarred. The absence of the details of the work does not furnish a legitimateground for refusing the amendment.

13. It may be that as a result of the amendment, if the respondent choosesto raise a controversy about the work done that is, about the quantity, qualityand other things concerning it, which it had never raised so long, the matterwill have to be gone into. That again would not justify a refusal of leave toamend. It would not mean any waste of time or money or any duplication of work.That investigation would now be made for the first time and nothing done so farwould become futile. Such an enquiry was indeed directed hi L. J. Leach &Co;'s case : [1957]1SCR438

The amendment sought is necessary for a decision of the real dispute betweenthe parties which is, what are their rights under the contract That disputewas clearly involved in the plaint as originally framed. All the necessarybasic facts had been stated. Only through a misconception a relief which couldbe asked on those facts had not been asked. It would not have been necessary toask for it unless the respondent had at a late stage taken the point that thesuit should fail without more in the absence of that relief. We find thepresent case indistinguishable from Charan Das's case. [L.R. 47 IndAp 255.]

14. We would for these reasons allow the appeal. The case would go back tothe High Court with a direction to it to allow the amendment sought and then todecide the correct interpretation of the disputed clause and thereafter, it theoccasion arose, to ascertain the amount due by a proper enquiry to be madeeither by the High Court or by the trial court as the High Court may think fit.The High Court may, if the appellant asks for it, also allow an amendmentsetting out the particulars making up the claim of Rs. 65,000 introduced by theamendment, that is, quantity, rate etc. of the work done. The appellant willget the costs in this court. The question of subsequent costs will be decidedby the High Court. The judgment of the High Court in so far as it refused theamendment is set aside but the rest of that judgment will stand.

Raghubar Dayal, J.

15. This appeal, on certificate granted by the High Court of Patna, isagainst the judgment and decree dismissing the appellant's suit for adeclaration on the ground that the plaintiff had not asked for consequentialrelief. The High Court rejected the application presented to it for amendmentof the plaint. The question for determination is whether the High Court wasright in rejecting the application for amendment.

16. The plaintiff sued for a declaration that is was entitled to enhancementof 20% over the tender rates for the different categories of excavation work asdetailed in para 13 of the plaint in connection with the work of excavation infoundation of he Tilaiya Dam at Katni, P. S. Koderma, in the district ofHazaribagh. Paragraphs 1 and 2 of the plaint read:

1. That the plaintiff didexcavation on work of different categories as contractor in connection with theexcavation in foundation of the Tilaiya Dam at Katni in the District ofHazaribagh P. S. Koderma. The contractor's letter of 24th September 1949[Annexure A] eventually became the tender for such work.

2. Paragraph of the contractor'sletter stated: This quotation is based on prevailing labour rate of Rs. 1-4-0per cooly but if there is increase of labour rate of more than 10% in anyparticular month, the proportionate increase in rate will be charged.

17. Paragraphs 3 to 11 state facts which indicate that the plaintiff hadasked for the increase of the labour rate per cooly by 20% and that theenhanced rates approved by the Corporation defendant were not accepted by theplaintiff. Paragraph 12 states that the plaintiff asked for payment underprotest to which the defendant was not agreeable. Paragraph 13 mentions theenhanced rates to which the plaintiff considers himself entitled according tothe proper interpretation of clause 17 of the tender. Paragraph 14 of theplaint reads:

'As the difference betweenthe parties is about the interpretation of clause 17 of the letter of thecontractor dated 24-9-1949 the plaintiff is advised to file the suit in thedeclaratory form.

The plaintiff reserves the rightunder 20 r. 2 of the Code of Civil Procedure to omit to sue in respect ofamount that may be found due upon the interpretation placed by the plaintiffupon the said clause 17 which interpretation it is submitted is the properinterpretation.

The plaintiff reserves the rightto sue later on for the amount found due to him.'

18. Paragraph 15 states that the cause of action arose on December 6. 1951when the Corporation refused to allow the increase of 20%. Paragraph 16 givesthe value of the suit for the purpose of jurisdiction to be Rs. 65,000 and saidthat court fees of Rs. 20-10-4 was paid as the suit was for declaration.Paragraph 17 said that the plaintiff claimed [i] leave under O. 2 r. 2. C. P.C. and [ii] that it be declared that the plaintiff is entitled to enhancementof 20% over the tendered rates for the different categories of excavation workas detailed in paragraph 13 of the plaint in connection with the work ofexcavation in foundation of the Tilaiya Dam. The plaint contained 3 annexures.

19. Annexure A was the letter which ultimately constituted the tender. Theschedule to the tender described the class and description of work to beexecuted, unit of calculation and the rate of payment. Annexure B was theletter from the plaintiff to the Executive Engineer dated March 11, 1950stating the difficulties in the performance of the contract. Annexure C was theletter from the Executive Engineer dated March 15-16, 1950 conveying theapproval of an enhancement of 10% in thereat over the tendered rate for theexcavation work from the date onward. Annexure D is the letter from theplaintiff to the Corporation dated December, 26, 1951 disputing theinterpretation of the Corporation.

20. It is clear from the plaint and its enclosures that the dispute betweenthe parties was about the rate to be paid for the different categories of workand that the plaintiff did not deliberately sue to recover the amount thatmight be found due upon the interpretation placed by the plaintiff upon thesaid clause 17.

21. Paragraph 13 of the written statement filed by the defendant stated thatthe defendant did not admit the later part of the statement in para 14 of theplaint which related to the plaintiff's reserving his right to sue later forthe amount found due at the enhanced rate. The defendant, inter alia, contestedthe suit on the ground that the suit was not maintainable in the form in whichit had been framed. Paragraph 16 of the written statement stated that theCorporation was ever ready and willing and was still willing to pay thelegitimate dues to the plaintiff.

22. Issue No. 2 of the framed in the case was : Is the suit maintainable inits present form? The trial court stated in its judgment:

The defendant also pleaded that the plaintiff has nocause of action, the suit is not maintainable in the present from and the courtfees paid is insufficient. But these allegations were not pressed at the timeof hearing.

23. It accepted the contention for the plaintiff that it was entitled toover- all increase by 20% in accordance with Clause 17 of the tender. It furthersaid:

'No objection has beenpressed as to the plaintiff's prayer regarding leave under O. 2 r. 2. C. P. C.That must therefore be allowed.

It accordingly decreed the suit.

24. On appeal, the High Court accepted the respondent's contention that inview of the proviso to s. 42 of the Specific Relief Act the suit for meredeclaration was not maintainable and that the trial Court was not right ingranting permission under r. 2 [3] of O. 2 C. P. C. to the plaintiff toinstitute another suit for the amount to which the plaintiff be entitled afterthe declaration sought for in the suit had been granted. The prayer foramending the plaint was rejected as the money claimed had become time barredlong before the prayer was made during the arguments before the High Court andas there existed no special circumstances to justify the grant of the amendmentagainst the interest of the defendant respondent. The High Court thereforeallowed the appeal and dismissed the suit. It however granted leave to appealas the requirements of art. 133[1][a] of the constitution were satisfied.

25. Learned counsel for the appellant has contended that there exists suchspecial circumstances in the case which would have justified, in the interestsof justice, the grant of the application for amendment of the plaint and, inthe alternative, contended that the High Court should should not have allowedthe respondent to object to the maintainability of the suit on the basis of theproviso to s. 42 of the Act and if the court had allowed such an objection itshould have, as a matter of course, allowed the application for amendment.

26. I propose to dispose of the second contention first. The contentionabout the maintainability of the suit was based on s. 42 of the Act and had tobe allowed. The Court could not make a declaration unless further relief hadbeen prayed for. It was incumbent on the court to comply with this requirementof law, even it not raised by the party, when it was clear that further reliefcould be claimed in the suit. Further, in this particular case, it cannot besaid that no objection had been raised on this ground by the respondent up tothe stage of the appeal in the High Court. In paragraph 2 of the writtenstatement, the respondent questioned the maintainability of the suit in theform in which it was instituted. Issue No. 2 of the framed in that connection.The contention was not given up by the respondent. It was simply not pressed onhis behalf, possibly, because it felt strong on the contention on the basis ofwhich the declaration was sought. I therefore do not consider the High Court inerror in allowing the respondent to raise the objection to the maintainabilityof the suit on account of the plaintiff not having asked for the furtherrelief.

27. It does not however follow that the appellant must have been allowed, asa matter of course to amend the plaint by adding a claim for recovery of theamount found due.

28. The various cases relied on in support of this contention are cases inwhich the fresh relief claimed by way of amendment was not affected by the lawof limitation and the objection to the maintainability of the suit had not beentaken at an early stage of the suit. Reference need not be made to all thosecases except to the one reported as Rukhamabai v. Lala Laxminarayan : [1960]2SCR253 in which this court observed:

It is a well settled rule of practice not to dismisssuits automatically but to allow the plaintiff to make necessary amendment ifhe seeks to do so.

29. Neither the question of limitation arose in that case nor did the courtconsider it necessary for the plaintiff to have asked for consequential relief.The above observation cannot be taken to be a pronouncement in connection withamendments sought in the pleading when they be with respect to claims which hadbecome time barred.

30. It is now well settled that the Court has power to allow amendments inconnections with claims which had become time barred, if special circumstancesexist and it be in the interests of justice. This is not disputed for therespondent. The real dispute between the parties is whether the circumstancesof the case come within the principle laid down in the various cases. Thisnecessarily leads to a consideration of the circumstances and the amendmentssought in those cases.

31. Before referring to the cases, I may set out the provisions of the Codewhich empower the court to allow amendment of pleadings. Section 153 and O. 6r. 17 deal with the matter. Section 153 Reads:

'The court may at any time, and on such terms as tocosts or otherwise as it may think fit, amend any defect or error in anyproceeding in a suit; and all necessary amendments shall be made for thepurpose of determining the real question or issue raised by or depending onsuch proceeding.'

Rule 17 of O. 6 reads:

' The court may at any stage of the proceedingsallow either party to alter or amend his pleadings in such manner and on suchterms as may be just, and all such amendment shall be made as may be necessaryfor the purpose of determining the real questions in controversy between theparties.'

32. These indicate that the amendment should be in such manner as may bejust and that, as a rule, all such amendments shall be made as be necessary forthe purpose of determining the real question in controversy between theparties. No amendment would be just if it so prejudices the interests of theother party for which that party cannot get any relief from the Court. Theamendments which must be allowed can be those in the absence of which the courtmay not be able to determine the real question in controversy between theparties. The real question in controversy must be gathered only from the plaintand to some extent from the allegations in the written statement. If the pointto be decided as a result of the amendment is not covered by the controversyraised by the plaint and the written statement, the amendment is not to beallowed necessarily, for the simple reason that it is unnecessary fordetermining the real questions in controversy between the parties. The Courthas to decide the suit instituted before it and with respect to thecontroversies raised in it. It follows that the amendments to be allowed relateto such matters which, due to bad drafting of the plaint, could not be clearlyand precisely expressed, though the parties did really intend to have thosematters determined by the Court. The object of the amendment of the pleadingsis to clarify the pleadings for bringing into prominence the real controversybetween the parties and not for helping a party by making such amendments whichbe beneficial to him in connection with some dispute between the parties, adispute which has not been really taken to the Court for decision and which theparties did not really intend to be decided in that suit. This seems to me tobe the real basis for an order of the Court in connection with such mendmentssought by a party in its pleadings as would raise a claim which has becometime-barred.

33. None of the cases referred to by the parties hold differently.

34. The cases which are to be considered in this connection are: KisandasRupchand Rupchand v. Rachappa Vithoba I.L.R. 33 Bom. 644.; Charan Das v. AmirKhan L.R. 47 IndAp 255; L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. : [1957]1SCR438 ; and Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil.Reference to Kisandas's case is necessary as some of the observations in thatcase were approved by this Court in the last case. [ : [1957]1SCR595

35. In Kisandas's case the plaintiff sued for dissolution of partnership andaccounts alleging that in pursuance of the partnership agreement they haddelivered Rs. 4,001 worth of cloth to the defendants. The Court found that thealleged agreement was not a partnership agreement but evidenced the advance ofa simple loan by the plaintiffs to the defendants. The trial court held thatthe plaintiffs had really delivered cloth worth Rs. 4,001 to the defendants,but dismissed the suit as no decree for dissolution of partnership and foraccounts could be given and the plaintiff had not asked to amend the plaint. Inthe first Appellate Court the plaintiffs appellants accepted the findings ofthe trial court that no partnership was constituted by the agreement and prayedfor leave to amend by adding a prayer for the recovery of Rs. 4,001. Theappellate court was of opinion that the plaintiffs had from the first intendedto sue only for the recovery of money but had been misled by their pleader,allowed the amendment to be made and ultimately decreed the claim for Rs.4,001. On the date of the amendment, it may be noted, most of the claim hadbecome time-barred. In the second appeal, Batchelor J., said at p. 651 :

' Falling back then, uponthe words of the Rule, I cannot follow the argument that there would be anyinjustice to the appellants in allowing the amendment, for the only effect ofit is to enforce their liability for a debt which was claimed, dispute, andfound to be due long before the defence of limitation was available.

Earlier, after referring to the provisions of O. 6, r. 17, he had said at p.649:

' From the imperative character of the lastsentence of the rule it seems to me clear that, at any stage of theproceedings, all amendments ought to be allowed which satisfy the twoconditions [a] of not working injustice to the other side, and [b] of beingnecessary for the purpose of determining the real questions in controversybetween the parties.

These observation have been approved by this court in Patil's case [(1957)S.C.R. 595.] where the court said, at P. 604:

' The same principles, we hold, should apply in thepresent case. The amendments do not really introduce a new case, and theapplication filed by the appellant himself showed that he was not taken bysurprise; nor did he have to meet a new claim set up for the first time afterthe expiry of the period of limitation.

Batchelor J.

36. Further said, at p. 652 [Kisandas's case] I.L.R. 33 Bom. 644. afterreferring to certain statements of the plaintiff in the trial court:

' It is difficult to imagine how the plaintiffcould have more clearly professed that, whatever may have been the attitude ofhis obstinately unskillful pleader, he for his part had no concern with thealleged partnership, but was suing simply to recover his debt. I think,therefore, that the subordinate Judge would have been well advised if he hadpaid more attention to the substance of the suit before him, and taken commandof it himself rather than handed over the conduct of the suit to a manifestlyinexpert pleader; and he taken this view of his duty as presiding Judge, theslight technical difficulty which stood in his way would have been easilyremoved.

37. In Patil's case amendment was allowed in the following circumstances.The plaintiff had obtained a decree for procession against defendant No. 2. Hewas obstructed during execution proceedings by defendant No. 1. His objectionunder O. 21 r. 97 was dismissed and therefore he filed a suit under O. 21, r.103 for a declaration that he was entitled to recover possession of the suitproperties from defendant No. 1. The contents of the plaint did not give thefacts or the grounds on which the plaintiff based his title to the propertiesin suit as against defendant No. 1. This difficulty was pointed out bydefendant No. 1 and subsequently the plaintiff asked for permission to givefurther and better particulars of the claim made in the plaint. Thisapplications was rejected by the trial Court. The trial court did not allowthis prayer and dismissed the suit. The High Court allowed the amendment of theplaint and this court agreed with the order of the High Court. It is clear aswas observed by the Court at p. 604, that this was not a case where a new claimwas made by the amendment but was a case where the incomplete particulars givenin the plaint were sought to be made complete by giving further particulars.The main object of the plaintiff was to get a declaration of his right topossession against defendant No. 1. It was to achieve this object that heinstituted the suit. He did not specify how he had a right to that property asagainst defendant No. 1 who was said to have no right to refuse delivery ofpossession to him. The only principle which can be deduced from this case isthat amendment of the plaint can be allowed to make the plaint complete inparticulars which would help in determining the real dispute between theparties, as raised by the plaint itself as originally presented.

38. Before dealing with Charan Das caseL.R. 47 IndAp 255. reference may bemade to the case reported as Mohummud Zahoor Ali Khan v. Mussumat ThakooraneeRutta Koer 11 M.I.A. 468 which has been referred to in Charan Das case. Inthis case the plaintiff brought a suit against several persons on theallegations that defendant No. 1 had borrowed certain money on a simple moneybond executed on August 9, 1856 and that the other defendants claimed herproperty and that therefore the suit be decreed against defendants and theproperty mentioned in the plaint, with interest to date of realization.Defendant No. 1 had also executed another bond on November 28, 1857 to secure afurther advance and had thereby pledged her Zamindari estate to the plaintiff.The suit was however not based on the second bond. The Privy council found thatthe suit should be dismissed against defendant other than defendant No. 1 andthat it was open to the defendant to ask for a decree for payment of an amountdue on the bond against defendant No. 1 but could not claim a decree againstthe property on the basis of the second bond. In that connection it wasobserved at p. 473 :

'Though this Committee is always disposed to give aliberal construction to pleadings in the Indian courts, so as to allow everyquestion fairly arising on the case made by the pleadings to be raised anddiscussed in the suit, yet this liberality of construction must have somelimit. A plaintiff cannot be entitled to relief upon facts or documents notstated or referred to by him in his pleadings, and the only thing that can berightly insisted on by the plaintiff here is a decree for payment against RuttaKoer.'

39. The Privy council however considered whether inasmuch as the suit waswholly misconceived, whether the proper course was not to dismiss the appealaltogether without prejudice to the right of the plaintiff appellant to bring anew suit against defendant No. 1 upon the first point, and decided that thatwould not be the proper course as the fresh suit might be resisted on theground of being barred by limitation, and as in the circumstances of the casesuch a defence in the fresh suit would be inequitable. The Privy Counciltherefore allowed the plaintiff to amend his plaint so as to make it a plaintagainst defendant No. 1 alone for the recovery of money due on a bond. Hereagain the defect was in the frame of the suit and did not relate to the realclaim with respect which the plaintiff sought relief from the court. Theplaintiff sought recovery of money due on the bond executed by defendant No. 1.He however framed a suit not only against defendant No. 1 but against otherdefendants as well and claimed a decree of money against all of them andagainst the property. His suit was allowed to continue by making properamendment with respect to part of the original claim, i.e., with respect to therecovery of money alone against defendant No. 1. This case shows that amendmentof the plaint was allowed so as to make it a plaint against defendant No. 1alone for the recovery of the claim even though if the original suit for thatrecovery had been instituted at the time it would have been barred bylimitation.

40. In Charan Das case L.R. 47 IndAp 255.the plaintiff used for adeclaration of his right to pre-empt certain property. The suit so framed wasnot maintainable in view of s. 42 of the specific Relief Act, as the furtherrelief for possession was not asked. The trial court rejected the applicationfor amending the plaint and dismissed the suit. The appeal against thedismissal of the suit was allowed and the suit was remanded for decision uponmerits with liberty to the plaintiffs to amend their plaint by adding a claimfor possession and by ante dating the plaint according to the dates of theoriginal suits. The privy Council approved of the permission for the amendmentof the plaint and, after quoting with approval the observation of the JudicialCommissioner to the effect.

' however defective the frame of the suit may be,the plaintiffs object was to pre-empt the land their cause of action was oneand the same whether they used for possession or not'

said at p. 262 :

' If this be so, all that happened was that theplaintiffs, through some clumsy blundering, attempted to assert rights thatthey undoubtedly possessed under the statute in a from which the statute didnot permit. But if once it be accepted that they were attempting to establishthose rights, there is no sufficient reason shown for disturbing the judgmentof the judicial Commissioner, who thinks they should be at Liberty to expresstheir intention in a plainer and less ambiguous manner. It may be noticed thatin the claim the relief sought is so awkwardly set out that it would be quiteopen to the interpretation that they had in fact claimed pre emption and not adeclaration of right........'

41. These observations, again, make it clear that amendment was allowed withrespect to a claim which, at the time when it was made, would have been timebarred because that claim could be spelt out of the original plaint which washeld to be defectively framed. A defect in the frame of the plaint was not consideredsufficient to disallow amendment and to dismiss the suit. The amendment of theplaint was necessitated due to clumsy drafting. The plaintiff was allowed toexpress his intention in a plainer and less ambiguous manner.. It was theseconsiderations which, according to the Privy Council, outweighed theconsideration that the power of amendment should not as a rule be exercisedwhether its effect be to take away from a defendant a legal right which hadaccrued to him by lapse of time and brought the case within the principle laiddown in Ali Khan's case. [11 M.I.A. 468.]

42. The next case to be considered is Leach and Co.'s case : [1957]1SCR438 . In that case the plaintiff had filed a suit for damages for conversionagainst the defendants on the allegation that they were the agents of theplaintiffs. This plea failed. On appeal, the appellate court held that theparties stood in the relationship of seller and purchaser and not agent andprinciple. This court, on further appeal, agreed with the findings of theappellate court that the suit for damages on the footing of conversion mustfail. The plaintiffs, however, applied to this court for amendment of theplaint by raising, in the alternative, a claim for damages for breach ofcontact for non delivery of the goods. The application was opposed on theground that it introduced a new cause of action and a suit on that cause ofaction would be barred by limitation. This court considered there was force inthe objection but, after giving due weight to it, was of the opinion that itwas a fit case in which the amendment should be allowed as the new claim wasbased on a clause of the same agreement on which the suit had been founded andtherefore could not be said to be foreign to the scope of the suit and as theprayer in the plaint was itself general and merely claimed damages. This Courtobserved at p. 450 :

' Thus, all the allegations which are necessary forsustaining a claim for damages for breach of contract are already in theplaint. What is lacking is only the allegation that the plaintiffs are, in thealternative, entitled to claim damages for breach of contract by the defendantsin not delivering the goods.'

43. Here again, the amendment allowed related to the form of relief whichcould be claimed on the basis of the facts alleged in the plaint and a clauseof the document on the basis of which the suit was founded. The defect in theplaint was in giving a correct shape to the legal claim which was open to theplaintiff and the relief sought could be covered by the original relief whichwas couched in general language. It may further be mentioned that the amendmentwas considered just as the defendants themselves had cancelled the contractwithout strictly complying with the terms of the contract and the court feltthat the justice of the case required that the amendment be granted.

44. It would appear from the various cases discussed above that an amendmentwhich would enable a plaintiff to make a claim which has become time barred isas a rule to be refused and that the Court would exercise its special power toallow such amendment only when there be special circumstances in the case. Thenature of those special circumstances is to be gathered from those cases inwhich such an amendment was allowed. It appears to me that such specialcircumstances can be only when the amended claim was at least intended to bemade by the plaintiff who had given in the plaint all the necessary facts toestablish the claim but had due to clumsy drafting not been able to expresshimself clearly in the plaint and to couch his relief in the proper legal form.Such circumstances justify an amendment not really as a judicial concession tothe plaintiff to save him from any possible loss but on the ground that theoriginal claim in the plaint, though defectively stated, really amounted to theclaim sought to be made by the amendment. Looked at in this way, the permissionto amend does not in reality offend against the law of limitation and servesthe interests of justice.

45. At this stage I may properly refer to what was said by the Privy Councilin Ma Shwe Mya v. Maung Mo Hnaung L.R. 48 IndAp 214.. In that case the PrivyCouncil had to consider whether the amendment allowed by the Judicialcommissioner, on appeal against the order of the District Judge, could beallowed in law or not. It observed at p. 216.

' All rules of court are nothing but provisionsintended to secure the proper administration of justice, and it is thereforeessential that they should be made to serve and the subordinate to thatpurpose, so that full powers of amendment must be enjoyed and should always beliberally exercised, but none the less no power has yet been given to enableone distinct cause of action to be substituted for another, nor to change, bymeans of amendment, the subject matter of the suit.'

46. It was held that the claim after amendment would be based on a differentcause of action from that on which the original claim was based and thereforewas not the real question in controversy between the parties in that suit. Toallow the new claim would be to go outside the provisions of 0.6 r. 17 C. P. C.

47. I may now consider whether the facts of the present case are such aswould justify the amendment of the plaint sought by the plaintiff appellant.The plaint in the present case gives no facts which are necessary to establishbefore the plaintiff can get a decree for Rs. 65,000 or which may justify adecree for accounting. The schedule attached to the tender, Annexure A, showsthat different rates of payment were agreed upon on different basis as unit ofcalculation for different type of work. The plaint no where indicates theamount of work done under each category and unless the plaintiff sets out theamount of work done he cannot certainly make out any claim for payment to him.It is said that the amount due to the plaintiff can be worked out on accountingon the basis of the bills tendered by him and to which the defendant had notraised any objection. No reference to such bills has been made in the plaint.Nothing is said in the plaint that the defendant had agreed to the billstendered. To allow the amendment of the plaint would necessarily lead to afurther request for the furnishing of these details about the work done andthat would necessarily lead to the defendants being afforded an opportunity toput in a further written statement hi connection with the fresh facts whichwould come on the record. In fact the amendment sought would necessitatepractically a de novo trial on the question as to what amount the plaintiff isentitled from the defendant on account of the work done. The amended claimcannot be decreed on the facts on the record.

48. When the plaintiff cannot get the relief, sought to be added as a resultof the amendment on the facts mentioned in the plaint originally, it is clearthat the cause of action for a decree for Rs. 65,000 is different from thecause of action on which the suit for declaration was founded. For the suit asoriginally instituted the plaintiff had merely to prove the terms of thecontract between the parties and to show that his interpretation of these termswas the correct one and that interpretation justified the declaration sought. Asuit based on one cause of action cannot be allowed to be changed into a suitbased on another cause of action.

49. It cannot be said that the plaintiff intended to sue the defendant forthe recovery of Rs. 65,000 but failed to express himself clearly in the plaintand that therefore he be allowed to make the plaint precise and clear in thatregard. The plaintiff knew that he could make a claim for money and in para 14reserved the right under o. 2 r. 2 C. P. C. to omit to sue in respect of thatamount that be found due upon interpretation placed by him on Clause 17 of thetender. This indicates that he did not intend to sue for the amount due to himand that he anticipated the possibility of later suing for the recovery of theamount deliberately not sued for in the suit. This circumstances also justifiesthe rejection of his prayer for amendment. The fact that the trial court, byits judgment, allowed leave under o. 2 r. 2 of the code to sue for the amountdue subsequently is no circumstance to justify the amendment now sought. Theomission of the defendant to press any objection against the prayer of theplaintiff for leave under O. 2, r. 2 is not such a special circumstance whichshould justify the amendment sought. Leave under O. 2, r. 2 can be sought bythe plaintiff and can be given by the Court with respect,to a plaintiff s notsuing for certain relief arising out of the same cause of action as sub-r. (3)provides that a person entitled to more than one relief in respect of the samecause of action may sue for all or any of such reliefs. But if he omits, exceptwith the leave of the Court, to sue for all such reliefs, he shall not,afterwards, sue for any relief Omitted. It has been shown above that the causeof action for the relief, of declaration was different from the cause of actionfor the claim of money. The relief for the money due did not arise from thecause of action on which the relief for declaration was based.

50. I am therefore of opinion that the High Court was right in not allowingthe amendment sought by the plaintiff. The appeal therefore fails and I woulddismiss it with costs.

51. The appeal is allowed in accordance with the majority judgment.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //