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Bikram Singh and ors. Vs. G.D. Jhingan, Secretary, Delhi and East Punjab Circle, Telegraph Co-operative Thrift and Credit Society Ltd., Eastern Court, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 451 of 1968
Judge
Reported inILR1969Delhi1
ActsCode of Civil Procedure (CPC), 1908 - Sections 153
AppellantBikram Singh and ors.
RespondentG.D. Jhingan, Secretary, Delhi and East Punjab Circle, Telegraph Co-operative Thrift and Credit So
Advocates: D.R. Mahajan and; Harbans Singh, Advs
Cases Referred and Khushi Ram v. Munshilal.
Excerpt:
civil procedure code (v of 1908), section 153 & order 6 rule 17 - amendment of pleadings--principles underlying--no substitution of one distinct cause of action for antoher nor changing the subject matter of suit by way of amendment--amendment refused on ground of delay by trial court--no grave injustice or injury on account of this delay--material irregularity committed justifying interference in revision.; the provision relating to amendment of pleadings are contained inter alias in section 153 and order 6, rule 17 of the code of civil procedure. according to the former, the court may at any time, and on such terms as to costs or toherwise as at may think fit, amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of..........committee perpetually.' it appears that the plaintiffs had original thought of including in this plaint, a paragraph numbered as paragraph 8 which reads thus: 'thereafter, defendant no. 1 who is the secretary, made some misrepresentations to the registrar of co-operative societies at which the assistant registrar co-operative societies held in abeyance his own letter dated 4/4/1968 vide his letter dated 5/4/1968 pending verification of the case.'(3) this paragraph somehow remained on the copy which was sent to the defendants along with the summons to file with the statement in answer to the plaint. of course, this paragraph was struck out with ink. in the plaint, as put into court, however, this paragraph did nto find place. the suit was contested and the pleadings gave rise to some.....
Judgment:

D. Dua, J.

(1) This is a plaintiffs' revision directed against the order of a learned Subordinate Judge 1st Class, Delhi, dated 9/8/1968 disallowing in part the amendment sought in the plaint.

(2) In April, 1968, the suit out of which this revision arises was instituted by three plaintiffs against four defendants claiming a perpetual injunction to the effect that the defendants be restrained from 'interfering with the plaintiff working as President of Delhi and East Punjab Circle Telegraph Co-operative Thrift & Credit Society Ltd., New Delhi, and from holding the election of the general body for election of the Committee perpetually.' It appears that the plaintiffs had original thought of including in this plaint, a paragraph numbered as paragraph 8 which reads thus:

'THEREAFTER, defendant No. 1 who is the Secretary, made some misrepresentations to the Registrar of Co-operative Societies at which the Assistant Registrar Co-operative Societies held in abeyance his own letter dated 4/4/1968 vide his letter dated 5/4/1968 pending verification of the case.'

(3) This paragraph somehow remained on the copy which was sent to the defendants along with the summons to file with the statement in answer to the plaint. Of course, this paragraph was struck out with ink. In the plaint, as put into Court, however, this paragraph did nto find place. The suit was contested and the pleadings gave rise to some preliminary issues. On those preliminary issues, evidence was also recorded and the case was fixed for arguments on those issues for 20-7-1968. On 16-7-1968, an application under Order 6, Rule 17, read with section 151, Code of Civil Procedure, for amendment of the plaint was presented by the plaintiff. The typed copy, however, bears the date '15/4/1968, but no point has been sought to be made at the bar on this .account. This amendment was resisted by the defendants and the trial Court, by means of the impugned order, disallowed addition of paragraphs 8 and 9 in the plaint. It is unnecessary to point out that paragraph I sought to be added by the application for amendment was allowed by the trial Court. It is against this refusal of the trial Court to allow paragraphs Nos. 8 and 9 to be added that this revision is directed. According to the Court below, since the plaintiffs were aware of the alleged order dated 5/4/1968, at the time of presenting the unamended plaint and reference to it was intentionally kept out of the same, it would be improper to permit it to be included now and it would also be introducing a new case by permitting the amended claim to be based on the order dated 5/4/1968. The trial Court relied for its view on a Privy Council decision in Ma Shwe Mya v. Maung Mo Hnaung, and on an English decision in Tildeslay, V. Harper

On revision in this Court, the plaintiffs' learned counsel has very strongly argued that he did nto originally rely on the order of the Assistant Registrar dated 5/4/1968 because he had nto been officially informed of it at the time of the presentation of the unamended plaint. No doubt, he, at one time, thought of referring to this order in the plaint, but on deeper thought, it was considered improper to claim relief on its basis till that order was formally intimated. Whether or nto he was properly advised to do so, this Explanationn, says the counsel, would be a good answer to the technical view taken by the trial Court in declining amendment.

(4) Shri Harbans Singh, the respondent's learned counsel, has contested this revision and has forcefully argued that if the plaintiffs were aware of the order dated 5/4/1968, even though unofficially, they should have based their plaint on that order in case they felt aggrieved thereby or in case they wanted to rely on it for the purpose of enforcing their claim as alleged in the plaint. Official intimation was nto necessary for them to so include the order in the pleadings if they were toherwise sure about it, and it is nto contended, says the defendants' counsel, that the plaintiffs had any doubt about the existence of such an order. According to Shri Harbans Singh, to allow amendment in the circumstances admitted by the plaintiffs would amount to making out a new case at the late stage of pleadings-late in the sense that the case was actually fixed for arguments on the preliminary issues which involved consideration of the order dated 5/4/1968. He has drawn my attention to Bhagavatula v. Dhulipalla, Sashi Bhushan.Banenjee v. Tulsi Charan Basu, Hardial Singh v. Sardarm Jaswant Kaur, and Khushi Ram v. Munshilal.

(5) The provisions relating to amendment of pleadings are contained inter alias in section 153 and Order 6, Rule 17 of the Code of Civil Procedure. According to the former, the Court may at any time, and on such terms as to costs or toherwise as it may think fit, -amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. According to the latter, the Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 question in controversy between the parties. The power of amendment is granted to the Court in the larger interests of doing full justice between the parties. The language of Rule 17 also quite clearly suggests that amendments which may be considered necessary for the purpose of determining the real question in controversy have, as a general rule, to be allowed, though Of course the matter is left to the judicial discretion of the Court on the facts and circumstances of each case. The decisions cited on behalf of the respondents are founded on the Privy Council decision in the case of Ma Shwe Mya. I consider it appropriate there to qutoe passage from the judgment of the Privy Council. Thus said Lord Buckmaster:

'ALTrules of Court are ntohing but provisions intended to secure the proper administration of justice and it is, thereforee, essential that they should be made to serve; and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for antoher, nor to change, by means of amendment, the subject matter of the suit.'

(6) This principle has ever since then been followed by almost all the Courts in this country and seems to me to be unexceptionable. According to it, the Court always attempts to determine the real controversy disclosed in the suit originally framed because such a course is considered as a general rule to secure the proper administration of justice. Substitution of one distinct cause of action by antoher or changing the subject-matter of the suit may perhaps appear ordinarily to be outside this principle. In each case, thereforee, one has to see whether this principle justifies amendment or the amendment sought is outside this rule. On the pleadings of the parties in the present case, I do nto think any such new case is being made out which can be said to be based on a distinct cause of action or to ttoally change the character or the subject-matter of the suit. The delay on which the trial Court seems to have relied also does nto seem to be an obstacle in the plaintiffs' way and here the Court below has clearly committed a material irregularity in the impugend order. No such grave injustice or irreparable injury to the defendants on account of this delay is shown as cannto be properly compensated by award of costs. The recognised principle of liberal construction of Order 6. Rule 17 has been ignored and the factor of delay has been unreasonably magnified, which has resulted-in failure of justice. Whether or nto the Explanationn given by the plaintiffs is quite correct, the fact, however, remains that if an order was made by the Assistant Registrar on 5-4-1968, then it is in the fitness of things on the facts of this case that such an order be included in the pleadings and be taken account by the Court while adjudicating upon the rights of the parties in relation to the real controversy in this litigation. No irremediable injury has been shown to have been caused to the defendants by this amendment which would seem to substantially change the nature of the claims. But when all is said and done, the plaintiff could, in my view, have very well waited for a day or so and secured proper confirmation of the existence and of the contents of the order dated 5/4/1968 before instituting the plaint. This, however, cannto be considered to be fatal in view of the recognised principle governing discretion in the matter of allowing amendments, and on the basis of the settled principle, amendment should nto have been denied, but should have been allowed on terms. It would, thereforee, promtoe the cause of justice if the plaintiffs are permitted to amend the plaint as desired on payment of Rs.50.00 by way of costs as a condition precedent to the amendment. Costs must be paid by 11-11-1968. The case to come up on that day.


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