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Nahan Foundary Limited Nahan Vs. Ram Kishan Kulwant Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1 of 1970
Judge
Reported in5(1969)DLT545
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantNahan Foundary Limited Nahan
RespondentRam Kishan Kulwant Rai
Advocates: C.L. Kapila and; A.C. Sud, Advs
Cases ReferredNilakanthaBiswal.Amolakchand Mohanlal v. Firm of Sadhuram Tudaram and P.S.Kaicker
Excerpt:
.....the following pleas which, it was alleged, wereinadvertently left oat when the original written-statement was filed 1. that the suit is barred by the general as well as constructive rules of rest judicata '2. that the plaintiffs firm being unregistered cannto againt. the present suit3 that the plaintiffs failed to fulfill the terms of the contract with the defendants and as such their security was liable to be forfeited and that the agreement between the parties had been revokedby a competent officer of the defendants ;4. that the arrangements inter se the parties came to aon 19-3-1963 and nto on l9-3-1965 etc. that rightcannto be allowed to be defeated by the petitioner's prayer for amendment being allowed at this stage. it is well settled thatthe court will nto allow a party to..........right which has alreadyaccrued to him with the lapse of time. in the present case the preliminary decree passed in favor of the respondents became final when noappeal was filed against it under section 96, civil procedure code.under section 97 of the code the correctness of that decree cannto beassailed even in an appeal which the parties may prefer from the finaldecree. a valuable right has thus accrued to the respondents. that rightcannto be allowed to be defeated by the petitioner's prayer for amendment being allowed at this stage. the necessary consequence of allowingto the petitioner's prayer for amendment would be to reopen the preliminary decree which has already attained finality. it is well settled thatthe court will nto allow a party to achieve by indirect means what hecannto.....
Judgment:

Hardayal Hardy, J.

(1) This civil revision is directedagainst the order passed by the Senior Subordinate Judge, SirmurDistrict, Nahan, on 3l-12-1969 dismissing the petitioner's applicationfor amendment of its Written-statement. The petitioner is NahanFoundry Limited Nahan which is Government undertaking while therespondents are M/s Ram Kishan Kulwant Rai, a partnership firmdoing bosiness in Punjab Delhi and other places. The plaintiffs hadfiled on 25-9-1967 a suit against the defendant-petitioner for renditionof accounts on the allegations that they had acted as distributors forthe sale of electric motors and pumps manufactured by the defendantpetitioner as per terms and conditions contained in an agreement dated.20-3-1962 for the States of Uttar Pradesh and Punjab including Delhi.and that the agreement was initially for a period of one year but hadbeen extended by mutual agreement until it stood expired on 19-3-1965.

(2) The defendant in its written statement admitted the allegations thatthe plaintiff were its distri

(3) The plaintiffs claim was allowed by a judgment dated 30-8-1968and a preliminary decree for rendition of accounts was passed in favorof the plaintiffs and against the defendant. Pursuant to the decree alocal coimmissioner was appointed to go into the relevant accounts ofthe defendant and submit his report. The local commissioner, howevermade a reference to the Court that there was some dispute between theparties as to the period for which the accounts had to be gone into. Hetherefore, sought clarification on that point. By its order dated 13-6-1969 the learned Senior Subordinate Judge, who had passed the preliminary decree, held that the defendant was liable to render accounts apto19-3-1965.

(4) After the above order was made, the defendant filed theapplication for amendment of its written-statement which has givenrise to the present revision. In the said application the defendantsought to include the following pleas which, it was alleged, wereinadvertently left oat when the original written-statement was filed

'1. That the suit is barred by the general as well as constructive rules of rest judicata ', 2. That the plaintiffs firm being unregistered cannto againt.the present suit3 That the plaintiffs failed to fulfill the terms of the contract with the defendants and as such their security was liable to be forfeited and that the agreement between the parties had been revokedby a competent officer of the defendants ;4. That the arrangements inter se the parties came to aon 19-3-1963 and nto on l9-3-1965 etc. etc.'

(5) This application was opposed on behalf of the plaintiffsground that it was mala fide and belated. The objection raised onbehalf of the plaintiffs found favor with the learned Subordinate judgewho dismissed the application and directed the commissioner to expeditethe submission of his report.

(6) The defendant being aggrieved by the aforesaid decision hasmoved this Court in revision against the same.

(7) The main contention urged by the learned counsel for the petitioner is that the Court below is in error in refusing the petitioner'sprayer for amendment on the ground of its being belated. It iscontended that under Rule 17 of Order Vi of the Code ofProcedure a party can be allowed to alter or amend his pleadingsstage of proceedings. In fact all such amendments have to beallowed as may be necessary for the purpose of determining the realquestions in controversy between the parties. In the present case, theproposed amendment seeks to challenge the very maintainability of therespondents suit and their right to claim the relief sought by them,which indeed is the real question in controversy.

(8) Counsel lor the respondents contends on the other hand thatthe petitioner's prayer for amendment is nto only highly belated butalso mala fide. The respondents filed their suit on 25 9-1967 while the petitioner's written-statement was filed on 27-12-1967. ln thatwritten-statement the petitioner admitted the respondents allegatithat they were its distributors for the period ending 19-3.1965. Theonly defense taken on its behalt was that it had disclosed all accountsand as such the respondents were nto entitled to any decree forrendition of accounts. The case, thereupon, proceeded to trial andended in a preliminary decree being passed in favor of the reapondentson 30-8-1968. The petitioner had a right to go in appeal against thedecree but no such appeal was filed. It continued to appear beforethe Commissioner appointed by the Court and raised before him for thefirst time an objection relating to the respondents' right to ask foraccounts till the end of 19-3-1965 on the ground that the agreementbetween the parties had been duly terminated on, 19-3-1963 by acompetent officer of the petitioner. The dispute was referred by theCommissioner to the Court and its directions were sought in that behalf.By its order dated 13-6-1969, the Court upheld the respondents' claimand directed that the petitioner was liable to render accounts up to19-3-1965. It is only then that the petitioner thought of coming forwardwith an entirely new case which if allowed to be raised, will nto onlyenable the petitioner to go back on the admissions previously made byit in its original written-statement but will also render all previousproceedings nugatory.

(9) There is a great deal of force in the contention urged by the respondent counsel. It is apparent that the stand which the petitioner nowseeks take is wholly inconsistent with its previous stand. The respondents. averments in the plaint were that they were a partnership firm,that there was a written agreement between the parties whereby the respondents were appointed distributors for the petitioner's products oncommission basis that the said agreement was subsequently renewedwith the commission payable to the respondents being enhanced andthe renwed agreement stood terminated on 19/03/1965. All theseaverments were admitted by the petitioner and the only defense set upby it was that the accounts had already been disclosed.

(10) The trial Court rejected the petitioner's defense and passed apreliminary decree for rendition of accounts. The apparent object ofthe present application is an attempt on the part of petitioner to reviseits original pleadings and to set up pleas which are wholly contrary tothose taken by it earlier.

(11) There can be no doubt that neither party to a dispute can be, allowed to stage such volte face. It is true that under Order Vi, Rule17, Civil Procedure Code, an amendment can be. allowed at any stageof the proceedings and mere delay will nto disentitle a litigant to alter.or amend its pleadings. But no such relief can be granted when it isfound that the prayer for amendment has been made mala fide and withthe object of depriving the other party of a right which has alreadyaccrued to him with the lapse of time. In the present case the preliminary decree passed in favor of the respondents became final when noappeal was filed against it under section 96, Civil Procedure Code.Under section 97 of the Code the correctness of that decree cannto beassailed even in an appeal which the parties may prefer from the finaldecree. A valuable right has thus accrued to the respondents. That rightcannto be allowed to be defeated by the petitioner's prayer for amendment being allowed at this stage. The necessary consequence of allowingto the petitioner's prayer for amendment would be to reopen the preliminary decree which has already attained finality. It is well settled thatthe Court will nto allow a party to achieve by indirect means what hecannto be allowed to do dirictly.

(12) Counsel for the petitioner contends that the finality of a preliminary decree is no bar to the petitioner's right to ask for and obtainleave to amend its written-statement. Support for this argument issought from the Judgment of the Judicial Committee of the Privy Coucilin Jadhunath Roy v. Parameshwar Mullek where it was held that apartition suit in which a preliminary decree had been passed wasstill a pending suit and the rights of the parties who were added afterthe preliminary decree had to be adjusted at the time of final decreeRelience is also pIaced on a Division Bench Judgment of AndhraPradesh High Court in Somireddi Burrayya v. Somireddi Atchayyammawhere the learned Judgesfollwing the decision of the Privy Councilallowed the plaintiff to amend the schedule of properties in a partitionsuit on the ground of mistake after the preliminary decree was passed

(13) It appeals to me that both the cases cited by the learned counsel are distinguishable on facts Both these cases relate to partittionsuits which are a class by themselves In the case before the PrivyCouncil the question before their Lordships was whether the mortgageeof an undivided share should be allowed to attend and heard at thestage at which the allotment of properties was going to be made amongthe several joint owners. It was held that altnough he was nto anecessary party, it was for the benefit of all other persons interested inthe joint property that such a mortgagee should be bound by theallotment. It was further held. that in case he was net allowed to jointhe proceedings at the stage of allotment he might be prejudiced if hisinterest in the undivided share did nto receive a proper allotment inseveralty. lt is obvious that there was no question in that case of thepreliminary decree itself being altered and adversely affected in anymanner in so far as the individual rights of the joint owners were concerned.The case before the High Court of Andhra Pradesh was case of case ofcorrection of mistake only. The plaintiff in that casehad filed a suitfor partition separate possession of a one third share in the properties. mentioned in the schedule attached to the plaint. After theCommissioner went to the spto for partitioning the properties obstructionwas offered in respect of one of the properties. The plaintiff thereafter filed an application for substitution of another property allegingthat she had by mistake mentioned a wrong survey number as formingpart of the joint family properties, The application was allowed. Theopposite party relying .upon order 20, Rule-3; Civil Procedure codecontended that the Court was functus officio after the preliminary decreewas passed. The contention was repelled it was held that order 20, Rule 3 had no bearing on the question whether a Court had jurisdictionto allow an amendment of the plaint schedule on the ground ofmistake after preliminary, decree, is passed in a partition suit. Thequestion is to be determined with reference to Section 153 and order 6,Rule 17. The case is, thereforee, no authority for deciding the presentrevision.

(14) Learned counsel has also-referred me to several other casesBai Galal Rameshi v.Vrajlal Ichhashahkar. Aintha Swain v NilakanthaBiswal.Amolakchand Mohanlal v. Firm of Sadhuram Tudaram and P.S.Kaicker v. Union of India None of these cases is however, directly inpoint. All of them lay dawn the general principle that amendment ofpleadings should be allowed even at the stage of appeal if such amend


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