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Laxmi NaraIn Oil Mills and anr. Vs. Mamraj Musadilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 161 of 1968
Judge
Reported inAIR1969Delhi311
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 6, Rule 17; Representation of the People Act
AppellantLaxmi NaraIn Oil Mills and anr.
RespondentMamraj Musadilal and ors.
Appellant Advocate S.K. Ghambir, Adv
Respondent Advocate I.D. Garg, Adv.
Cases ReferredCharan Das v. Amir Khan
Excerpt:
.....one of the most important considerations in matters relating to custody of a minor child. - the learned judge was dealing with an application for amendment apparently on the original side dealing with the suit, and in the concluding part of his order, he observed that he was nto satisfied at all either on the merits or the bona fides of the application and so observing, dismissed the application for amendment. 9. in my view, one of the purposes and objects of allowing amendment of the plaint is to avoid multiplicity of suits and the court has accordingly full power to allow amendment like the present, the question whether or nto to allow it in a given case being a matter of discretion, albeit, judicial discretion. the discretion, it may well be borne in mind, is that of the court..........the order of a learned subordinate judge 1st class dated 16-12-1967 allowing amendment of the plaint. the plaint had been presented on 9-5-1967 and the application for amendment was made in the court below on 18-10-1967 before the issues were framed. as a matter of fact, on 30-9-1967, the case was adjourned by the trial court to 18-10-1967 for issues. the revision in this court was presented on 14-3-1968, though the copy of the impugned order was obtained on 5-2-1968. the copy was applied for on 11-1-1968.2. the learned subordinate judge has observed in his order that the amendment prayed for had been sought at a very early stage and that the defendants could be sufficiently compensated by payment of costs and they would nto be taken by surprise. amendment was allowed in order to.....
Judgment:

1. This revision under Section 115, Civil P. C. is directed against the order of a learned Subordinate Judge 1st Class dated 16-12-1967 allowing amendment of the plaint. The plaint had been presented on 9-5-1967 and the application for amendment was made in the Court below on 18-10-1967 before the issues were framed. As a matter of fact, on 30-9-1967, the case was adjourned by the trial Court to 18-10-1967 for issues. The revision in this Court was presented on 14-3-1968, though the copy of the impugned order was obtained on 5-2-1968. The copy was applied for on 11-1-1968.

2. The learned Subordinate Judge has observed in his order that the amendment prayed for had been sought at a very early stage and that the defendants could be sufficiently compensated by payment of costs and they would nto be taken by surprise. Amendment was allowed in order to avoid multiplicity of suits as the trial Court considered it to be permissible under the Supreme Court decisions.

3. The plaint, as originally instituted, was based on the averments that the plaintiff-firm was carrying on business as Commission Agents in Naya Bazar, Delhi and defendant No. 3 had been getting his goods sold in Delhi Market under the commission agency of the plaintiff-firm. Defendant No. 2 was pleaded to be the proprietor of firm-defendant No. 1 M/s. Lakshmi Narain Oil Mills Shamgarh (Madhya Pradesh). Defendant No. 3 had instructed the plaintiff that some goods contracted for by him from defendants Nos. 1 and 2 through defendant No. 4 as a broker may be reaching Delhi and the same be kept at the plaintiff's shop for sale in their commission agency. Defendant No. 3 did nto leave any balance to his credit for adjustment in this transaction and defendants Nos. 1 and 2 sent a consignment of oil cakes-bionla (cotton) to Delhi under cover of a hundi drawn upon the plaintiff for a sum of Rs.12,050.60Paise. In February, 1967, when the plaintiff gto information of the hundi through the banker, the goods were gto inspected at the railway siding and it was found that they were of inferior quality and were nto easily and readily saleable in Delhi market. The plaintiff realised that these goods may nto fetch advance amount of Rs.12,050.60Paise which defendants Nos. 1 and 2 were expecting against this consignment. The plaintiff thereupon informed defendants Nos. 1 and 2 by a telegram dated 10-2-1967 that they should reduce the amount of hundi to Rs. 4000 in order to enable them to cover the advance with the expected sale price and the expenses of sale. The said defendants did nto agree and instead insisted that the plaintiff should accept the goods and honour the hundi as if it was a transaction of sale between them and the plaintiff. The said defendants also started alleging that there was a direct contract of sale between them and the plaintiff, but in spite of repudiation by the latter, the said defendants did nto agree to accept that position. It was on these averments that the plaintiff prayed for a declaration and injunction.

4. In the application for amendment of the plaint, it was pleaded that the plaintiff also wanted to claim damages for defamation against defendants Nos. 1 and 2 because they were carrying on propaganda maliciously maligning the plaintiff in connection with the alleged contract in controversy. By amendment of the plaint, a decree for Rs.500 on account, of damages for defamation was claimed in addition to the declaration and the injunction. The cause of action was stated to have arisen in regard to the damages on various dates from February, 1967 to September, 1967.

5. The defendants contested this application mainly by contending that if the plaintiff had actually suffered damages as alleged the same would have been claimed in the original plaint and that the plaintiff was trying to introduce a new case by the proposed amendment. Damages in regard to the alleged dishonest imputation subsequent to the filing of the plaint was also objected to.

6. It is on these pleadings that the trial Court made the impugned order.

7. On revision, the learned counsel for the defendants has challenged the impugned order and has relied on Nrising Prasad Paul v. Steel Products Ltd., : AIR1953Cal15 ; Kesho Ram Passey v. Dr. P. C. Tondon, and Harish Chandra Bajpai v. Triloki Singh, : [1957]1SCR370 . In the Calcutta decision, P. B. Mukharji, J. pointed out the distinction between amendment of a plaint and amendment of a written statement and observed that adding a new ground of defense or substituting or altering a defense does nto raise the same problem as adding, altering or substituting a new cause of action, with the result that Courts are inclined to be more liberal in allowing amendment of defense than of plaint and questions of prejudice are less likely to operate with same rigour in the former than in the latter case. The learned Judge was dealing with an application for amendment apparently on the original side dealing with the suit, and in the concluding part of his order, he observed that he was nto satisfied at all either on the merits or the bona fides of the application and so observing, dismissed the application for amendment. Incidentally, there, the Explanationn for the delay in seeking amendment was described to be a mere excuse. In the Punjab case, in a suit for ejectment filed in 1847 on the ground that the tenant had sublet the premises to another person, an appeal was preferred and the case remanded. The plaintiff then sought to amend the plaint by adding two more causes of action to the effect that the defendants had made structural alterations to the premises presumably after the suit had been filed. This amendment was disallowed, being intended to introduce a new cause of action and on revision, a learned single Judge declined to interfere. The Court observed that the defendant, in order to meet the new ground, would have to adduce evidence on different points altogether which did nto exist at the time when the suit was instituted and this would unfairly prejudice him. After dictating the judgment, the learned Judge noticed several decisions of English Courts in support of his view, the principal one being Eshel by v. Federated European Bank Ltd. (1932) 1 Kb 423. The Supreme Court decision in Bajpai's case, : [1957]1SCR370 deals with an election appeal and obviously, the approach in such cases is somewhat different from amendment of pleadings in suits in ordinary Courts of law governed by the Code of Civil Procedure, uninfluenced by special restriction placed by the Representation of the People Act.

8. All amendments, as observed by the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, : [1957]1SCR595 , ought to be allowed which satisfy the two conditions (a) nto working injustice to the other side and (b) being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannto be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could nto be compensated in costs. In L. J. Leach and Co., Ltd. v. Messrs. Jardine Skinner and Co., : [1957]1SCR438 , amendment of the plaint was allowed in the Supreme Court in which the decision of the Privy Council in Charan Das v. Amir Khan 47 Ind App 255 = AIR 1921 Pc 50 was approved.

9. In my view, one of the purposes and objects of allowing amendment of the plaint is to avoid multiplicity of suits and the Court has accordingly full power to allow amendment like the present, the question whether or nto to allow it in a given case being a matter of discretion, albeit, judicial discretion. The consideration which broadly weighs with the Court is whether amendment can be allowed without working injustice to the other side and whether award of costs can compensate the opposite party for the position of inconvenience or disadvantage in which the amendment would place him. The discretion, it may well be borne in mind, is that of the Court allowing amendment and the Court on revision cannto ordinarily substitute its own discretion for that of the Court below dealing with the prayer for amendment. No jurisdictional or similar infirmity with the impugned order having been pointed out and the Court below having kept in view the recognised principle while dealing with the question, I am unable to persuade myself to interfere on revision. I accordingly dismiss this revision but without costs.

10. Revision dismissed.


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