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Murli Dhar Dalmia Vs. Union of India Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous Appeal No. 447 of 1976 and Criminal Writ Appeal No. 15 of 1976
Judge
Reported inILR1976Delhi311
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantMurli Dhar Dalmia
RespondentUnion of India Etc.
Advocates: V.M. Tarkunde,; Soli J. Sorabjee,; S.P. Aggarwal,;
Cases ReferredGaganmal Ramchand v. The Hongkong and Shanghai Banking Corporation
Excerpt:
(i) constitution of india - article 226 -- habeas corpus petition -- amendment of -- when can be allowed -- civil procedure code, order 6, rule 17 -- applicability of, to such a case.; the petitioner filed the habeas corpus petition praying for quashing the order of detention made by the district magistrate bhiwani (haryana state) (respondent no. 5) under section 3(1) of the maintenance of internal security act, 1971 and the declaration made by the governor of haryana in exercise of the powers conferred under sub-section (3) of section 16-a of the act and the order (proclamation) made by respondent no. 2 (shri r. n. jindal, metropolitan magistrate, delhi), published on 24th january, 1976. the detention order and the declaration made under section 16-a (3) of the act were sought to be.....prithvi raj, j. (1) the petitioner, murli dhar dalmia, in the criminal writ no. 15 of 1976 filed by him under articles 226 and 227 of the constitution of india and section 482, cr. p.o., 1973, against the union of india and others asks for quashing the orders of detention dated 30th november, 1975, made by the district magistrate, bhiwani (haryana state), respondent no. 5 under section 3(1) of the maintenance of internal security act, 1971 (herein called 'the act') and the declaration dated 14th december, 1975, annexure a, made by the governor of haryana in exercise of the powers conferred under sub-section (3) of section 16a of the act and the order (proclamation) dated 16th january, 1976, annexure 'f' made by respondent no. 2 (shri r. n. jindal, metropolitan magistrate, delhi),.....
Judgment:

Prithvi Raj, J.

(1) The petitioner, Murli Dhar Dalmia, in the Criminal Writ No. 15 of 1976 filed by him under Articles 226 and 227 of the Constitution of India and section 482, Cr. P.O., 1973, against the Union of India and others asks for quashing the orders of detention dated 30th November, 1975, made by the District Magistrate, Bhiwani (Haryana State), respondent No. 5 under section 3(1) of the Maintenance of Internal Security Act, 1971 (herein called 'the Act') and the declaration dated 14th December, 1975, Annexure A, made by the Governor of Haryana in exercise of the powers conferred under sub-section (3) of section 16A of the Act and the order (proclamation) dated 16th January, 1976, Annexure 'F' made by respondent No. 2 (Shri R. N. Jindal, Metropolitan Magistrate, Delhi), published on 24th January, 1976. He further prays that a direction be issued to respondent No. 2 to forbear and desist from taking any further steps or proceedings in pursuance of the said order dated 16th January, 1976, and the proclamation published on 24th January, 1976. The detention order and the declaration made under section 16(3) of the Act are sought to be quashed on the ground that the petitioner is not engaged in any political activities and that from an appraisal of his social and business activities, which he has enumerated in detail in the petition, the petitioner contends that on the facts and circumstances of the case it is impossible for any rational person acting with a sense of responsibility and properly directed in law to come to the conclusion that it is necessary to detain the petitioner for effectively dealing with the Emergency.

(2) Giving his bio-data the petitioner submits that he joined the Birla Jute Manufacturing Company Limited Birlapur (24 Parganas), West Bengal, in 1908, and in 1935 he joined the Biria Cotton Spinning and Weaving Mills Limited at Delhi and worked there till his retirement on the 11th of December, 1975. During his service because of his meritorious work he was promoted to the position of the Executive President of the Birla Cotton Spinning and Weaving Mills Limited. He was also associated with the 'Technological Institute of Textiles' at Bhiwani (herein called 'the Institute') owned by the Birla Education Trust. The petitioner further alleges that he had been and is a director of several other Companies and had participated actively in several spheres of social activities being connected with a number of educational and charitable institutions. Besides, he served for several years on the Advisory Councils for 'Air India' and Indian Airlines'--both Government of India Undertakings. He claims to have taken keen interest in various sports, social and educational activities in addition to his having contributed to the development of industry.

(3) His aforesaid activities are set out in paras 5 to 8 of the writ petition, full details whereof need not be recapitulated for purposes of this order. In short, the petitioner avers that he had not done any such act from which it could be inferred that his activities were and are in any manner prejudicial to the defense of India or civil defense or maintenance of public order or the security of India or the maintenance of supplies and services essential to the community.

(4) Giving the background, according to him, leading to the passing of the impugned orders the petitioner alleges that in the end of September, 1975, he received a. message through an acquaintance from the then Chief Minister of Haryana that Sh. R. C. Kaushik, the Principal of the Institute, be transferred from Bhiwani. He explained to the said acquaintance the difficulty in transferring Shri Kaushik stating that in the event of his transfer the Institute would suffer. The petitioner further avers that he through the same acquaintance received a further message from the then Chief Minister of Haryana that if Shri Kaushik was not transferred by the 15th October, 1975, he (the petitioner) would be detained under the Act. The petitioner on this became apprehensive and contacted Shri Kaushik explaining to him what had transpired. Shri Kaushik reluctantly out of fear agreed to be transferred from the Institute. This decision was conveyed to the then Chief Minister of Haryana through the same acquaintance. The petitioner contends that he rarely visits Bhiwani and that during the year 1975 he was there in all for five to six days. His last visit to Bhiwani was on 16th October, 1975, lasting for about six hours from 11 a.m. to 5 p.m. when he visited Bhiwani for effecting the transfer of Shri Kaushik.

(5) The case of the petitioner is that the impugned orders are mala fide in that in early November, 1975, he received another message from the then Chief Minister of Haryana through the same acquaintance that the revelation of the fact that Shri Kaushik had been transferred because of the instructions of the then Chief Minister of Haryana resulted in great embrassment and unpopularity to him and he (the then Chief Minister) had learnt that that information had leaked through the petitioner and one Sh. P. L. Jalan and that both of them would be arrested under the Act. Sh. Jalan was arrested on 15th November, 1975, on which, the petitioner avers, he became apprehensive of the impending action against him. He consequently sent prayers through that acquaintance to the then Chief Minister of Haryana that he was innocent and that the Chief Minister was needlessly angry with him and that he should not vent his wrath on the petitioner by taking action under the Act. The petitioner contends that, he was informed that the then Chief Minister of Haryana was very angry with him, determined to teach him a lesson and that the Chief Minister would see that the petitioner was detained under the Act. In the premises, the petitioner avers that the then Chief Minister of Haryana had manoeuvred and/or managed to get an order of detention passed against him under the Act which had been passed mala fide and in gross abuse of statutory power although in the facts and circumstances of the case it was impossible for any rational person acting with a sense of responsibility and properly directed in law to come to the conclusion that it was and is necessary to detain the petitioner with a view to preventing him from acting, in any manner, prejudicially to the public order or the security of India or to the security of the State or to the defense of India or civil defense or the maintenance of supplies and services essential to the community. The petitioner in the premises avers that the impugned orders had been passed with ulterior motive and collateral purpose of venting the wrath and hostility of the then Chief Minister of Haryana. The impugned orders and the declaration are also assailed on legal grounds as well which are not relevant for the purpose of the present order on this miscellaneous application.

(6) Along with the writ petition, the petitioner also made an application (Cr. M. 132 of 1976) under section 151 Civil Procedure Code seeking stay of the impugned order of detention and the declaration as also of the order dated 16th January, 1976, made by respondent No. 2, and the proclamation published on 24th January, 1976, in pursuance of the said order as, also all the proceedings taken there under praying for the grant of ad interim ex parte stay in terms of the above prayer.

(7) The writ petition and the stay application came up for hearing before a Bench of this Court on 4th February, 1976. The petitioner was represented by counsel but did not put in appearance himself. Rule nisi returnable before a Division Bench was issued on that date and the learned counsel for the petitioner gave an undertaking that the petitioner would appear in Court on the next date. Ex parte interim stay in terms of prayer (a) in Cr. M. 132 of 1976 was also issued by the same Bench along with notice of the application returnable for 5th February, 1976.

(8) On the next date of hearing, i.e., 5th February, 1976, the petitioner appeared along with his counsel. Respondents 1, 3, 4, 5 and 7 also put in appearance through counsel. After some arguments the hearing was adjourned to 13th February, 1976.

(9) On 13th February, 1976, the Admitting Bench recorded contentions raised by learned counsel for the petitioner regarding certain incidents which are not now relevant. It may, however, be noted that on this date it was brought to the notice of the Court that the impugned order of detention had been revoked by order dated 11th February, 1976, passed by the Haryana Government. There was an allegation made on behalf of the petitioner that a fresh detention order had been also passed but there was no confirmation available of this fact from the counsel appearing for the respondents. On this the learned counsel for the petitioner prayed that he may be allowed time by the Court to amend his petition in the light of the alleged subsequent events. Learned counsel also filed an application praying that the respondents should be restrained from taking any steps or proceedings or any measures in pursuance of any fresh order of detention passed or that may be passed and that in the meantime an interim order may be made restraining the respondents from executing any order of detention passed or that may be passed against the petitioner for a period of one week after the same is communicated to the petitioner's Advocate. After hearing some arguments, the Admitting Bench adjourned the hearing on an undertaking by the petitioner to be present in Court on the next date of hearing and on an assurance from the counsel for the Haryana State to maintain the status quo till then. This arrangement incidentally has continued till today.

(10) The petitioner then filed the present application under Order 6 Rule 17 read with section 151 Civil Procedure Code for leave to amend the writ petition. What is sought to be incorporated by way of amendment to the writ petition is as follows. In para 14 of the petition what is sought to be inserted at the end of the said para is that the petitioner had gone to Bhiwani for the last time on 16th October, 1975, for a period of six hours only for the purpose of relieving Shri Kaushik of his duties as the Principal of the Institute; that he had not been to Bhiwani or the Province of Haryana since the said date; that during his short stay at Bhiwani on 16th October, 1975 he was not concerned with any activities other than the above-mentioned work; that during his said short stay) in Bhiwani he was not concerned with any incident having the remotest connection with the maintenance of public order much less the security of State ; that he is no longer associated in any manner with the Institute since 11th December, 1975; and that he has had no communication of any kind with anybody either in Bhiwani or in the State of Haryana since that date.

(11) Para 47 of the petition is proposed to be substituted by para 47(1) to 47(III) (g) in which after recapitulating certain alleged events the petitioner inter alias makes a grievance that the order of revocation dated 11th February, 1976, and the fresh order of detention are without legal and factual foundation; that the order of revocation dated 11th February, 1976, had been passed mala fide and in fraudulent exercise of powers, passed only 'with a view to try and deprive the petitioner of the protection of the interim order' passed by this Court; and that the fresh order of detention is vitiated and tainted by the same mala fide in law and facts and for the same reasons as were specified in assailing the earlier detention order dated 30th November, 1975. The petitioner further seeks to incorporate other consequential changes in the writ petition necessitated by passing of the fresh order of detention which need not be noted as nothing turns on them for deciding this application.

(12) On behalf of the State Shri O. P. Bhardwaj, Deputy Secretary, Department of Home, Government of Haryana, in his reply-affidavit strongly opposes the grant of the application and contends that the earlier detention order dated 30th November; 1975, having been revoked, challenge to the said order, to the declaration dated 14th December. 1975, and to the proceedings whatsoever taken subsequent thereto, has become infructuous and that being the position the writ petition is liable to be dismissed and as such there was no question of amending it. On merits, he avers that the Government of Haryana had since issued a fresh order of detention against the petitioner under,the Act as also a declaration to the effect that the petitioner's detention is necessary with a view to effectually dealing with the Emergency, the petitioner is not entitled to question the legality on any ground whatsoever. The allegations of the petitioner that the fresh order of detention is vitiated and tainted by mala fide in law and facts, are denied.

(13) The learned counsel for the petitioner, Shri Soli Sohrabjee, strongly contended that by the revocation of the earlier detention order the Writ petition did not become infructuous. What was being sought by the petitioner in the unamended writ petition was to safeguard his personal liberty which was being threatened by the respondents by passing illegal orders for which there was no basis. He accordingly subnutted that the real issue in controversy between the parties was whether any order under section 3(1) of the Act could be passed against the petitioner by the State of Haryana or any of its officers. The cause of action, he urged, was that powers under the aforesaid section of the Act could not be invoked against the petitioner in the absence of the requisite condition-precedent to the exercise of powers, namely, subjective satisfaction of the detaining authority of such cogency and sufficiency having nexus to the activities of the petitioner as to quieten doubts of the Court and that the cause of action was not dependant on any particular order appearing in a particular date. what in fact was the claim of the petitioner in the writ petition, goes. the argument, is the challenge to his deprivation of liberty by the exercise of power under section 3(1) of the Act by the State of Haryana and its officers which remains in substance the same even on passing of the fresh detention order dated 16th February, 1976, challenge to which order does not introduce either a new case or a new basis. He contended that the earlier petition narrates certain facts which lead up to the passing of the fresh detention order. Original relief sought may have become inappropriate, it was submitted, but the cause of action, namely, the threatended injury of depriving the petitioner of his liberty still remains alive and is not extinguished, more so when the order no.v sought to be challenged is under the same section of the same Act. In the premises, the learned counsel submitted that the amendment proposed in the writ petition does not set out a new case and by and large the complexion of the lis remains the same. Fresh order, it was submitted, was nothing but a subsequent event of which the Court was entitled to take notice for granting the relief. In a habeas corpus petition, goes the submission, threat on the date when the habeas corpus comes up before the Court has to be considered. Threat to the liberty of the petitioner, in the instant case, learned counsel contended, still persists in the passing of the fresh order of detention dated 16th February, 1976, and so does the original cause of action.

(14) Vehemently contending that the power of the Court to grant amendment of the pleadings is intended to serve the ends of justice and that the rules of procedure are intended to be a handmaid to the administration of justice, the learned counsel urged that in, the instant case the Court is entitled to take note of the subsequent event, viz., fresh order of detention dated 16th February, 1976, and grant relief to the petitioner, in so doing the Court would not only shorten the litigation but best attain the ends of justice rather than driving the parties to another bout of litigation which the Courts normally tend to avoid.

(15) Shri M. C. Bhandare, learned counsel appearing for the State of Haryana, on the contrary submitted that though certain facts may be common leading to the passing of the second detention order but each of the two orders would constitute a separate cause of action on the basis of which the petitioner felt aggrieved to seek independent relief in each event, namely, ask for quashing of the particular impugned order of detention. Accordingly, it was urged, simply because of the existence of the common facts, cause of action cannot be said to be the same.

(16) With a view to appreciate the contention of the parties it would be proper to note the provisions of Order 6 Rule 17 of the C.P.C. which reads as follows:

'THECourt may at any stage of the proceedings allow either party to alter or amend his pleadings 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 questions in controversy between the parties'.

(17) The provisions of this Rule have been considered in a series of rulings and the principles on which amendments are allowed have been well-settled. Recently a Full Bench of this Court on a consideration of the case-law on the subject in Smt. Abnash Kaur v. Dr. Avinash Nayyar and others, I.L.R. (Delhi) 74(2)133 , in considering the scope and ambit of this Rule observed-

'UNDEROrder Vi rule 17 Civil Procedure Code. no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. This means that a subsequent pleading cannot conflict with a previous pleading. But such an inconsistent plea can be taken in the alternative by way of an amendment. The addition of a new ground of attack or a cause of action to an existing one is not, thereforee, forbidden. What would not be in the interest of justice is the substitution of one cause of action by another or changing the subject-matter of the suit itself'.

(18) It is now well-settled that Court as a rule permits amendment of the pleadings intended to serve the ends of justice provided that thereby the subject-matter of the suit and the cause of action remain the same. By way of amendment a party is not permitted to substitute one cause of action for another in the guise that apparently the subjectmatter of the suit remains unchanged.

(19) The term 'cause of auction' has nowhere been defined but now the same is well-settled in a series of cases to mean the sum-total of all those allegations upon which the right to the relief claimed is founded, i.e., the whole bundle of material facts which if controverter by the defendant, it is necessary for the plaintiff to prove, in order to entitle him to succeed. In other words, the cause of action does not depend upon the character of the relief prayed for by the plaintiff but is referable to the grounds set forth in the plaint as to the cause of action on which the plaintiff asks the Court to arrive at a conclusion in his favor. All those bundle of facts which taken with the law applicable to them gives the plaintiff a right to seek relief against the defendant. fall within the ambit of term 'cause of action'. In the absence of any act on the part of a defendant infringing the right of the plaintiff no cause of action can be said to accrue in favor of the plaintiff. Accruel of cause of action is necessary to maintain a suit. A suit is not maintainable if the cause of action has been discharged by satisfaction. To maintain a suit, in other words, the cause of action should not have become dead or discharged.

(20) It may bear mention here that not only the cause of action has to be disclosed in the plaint but also the relevant facts and other circumstances regarding its maintainability such as the Court has jurisdiction to entertain the suit. However, the relevant facts and other circumstances recapitulated in the plaint do not become part of the cause of action. They are no doubt essential requirements of the plaint but not of the cause of action on the foot of which the suit is brought. The suit is the sum-total of 'cause of action' and 'relief' claimed.

(21) In the light of observations set out above and the principles of law enunciated in the Full Bench decision of this Court in Smt. Abnash Kaur's case (supra) we proceed to examine the facts of this case to determine whether the cause of action remains the same or stands substituted in the face of the fresh order of detention dated 16th February, 1976.

(22) A careful examination of the original petition shows that paras 2 to 10 give the bio-data of the petitioner including his various activities. Paras 11 to 17 recapitulate the incident regarding the transfer of Shri Kaushik as Principal of the Institute from Bhiwani and the alleged wrath of the then Chief Minister of Haryana which he wanted to vent against the petitioner. Paras 19 to 26 make a mention of proceedings taken in the Court on the basis of which jurisdiction of this Court is sought to be invoked- In the subsequent paras of the petition challenge is made to the passing of the earlier detention order dated 30th November, 1975, on the ground of non-application of mind as also on certain legal grounds. All this material without doubt constitutes relevant facts giving rise to the maintainability of the petition in this Court. These facts, which undoubtedly are essential requirements of the petition, however, by themselves cannot be said to constitute cause of action on the foot of which the petition could be said to have rested.

(23) Whether any particular facts constitute a cause of action is necessarily to be determined with reference to the facts of each case. In the instant case, the petitioner seeks to avoid his arrest in pursuance of the detention order dated 30th November, 1975, issued against him and the cause of action sprang into existence because of the said order directing detention of the petitioner. The cause of action accrued to the petitioner for the institution of this petition because of the order of detention dated 30th November, 1975. If no order had been passed no cause of action could have come into existence to enable the petitioner to maintain the writ petition even though the other acts, namely, the desire of the then Chief Minister of Haryana to have Shri Kaushik transferred and consequent embarrassment alleged to have been caused to him upon the alleged disclosure that the transfer of Shri Kaushik took place at his behest are no doubt essential to be given in the petition to sustain its maintainability. If that be so, the petition had become infructuous on the revocation of the order of detention dated 30th November, 1975, and the cause of action, if any, stood discharged by satisfaction on or before 13th February, 1976.

(24) Once the Us ceases to exist, in cur opinion, the petition was liable to be dismissed forthwith on 13th February, 1976, when the matter came up for hearing. A fresh life could not be injected or sought to be injected in a deal Us by bringing new facts on record whether the new facts are allegedly subsequent events or facts giving a distinct and separate cause of action. It is, however, contended that the alleged subsequent events did not determine the Us or result in a fresh cause of action arising. We do not agree.

(25) What are the determinants to hold that the cause of action is the same. The rough test, although not a conclusive one, would be whether the fresh order of detention dated 16th February, 1976, merely amounts to a subsequent event reinforcing the first order or in any way amplifying its ambit and the scope or whether it is an independent order requiring the petitioner to be detained. The answer is obvious. The fresh order of detention is an independent order giving rise, if at all, to a fresh cause of action to the petitioner if he feels aggrieved by the same- It cannot be treated as a subsequent event to be taken notice of by the Court as is urged by the learned counsel for the petitioner. The petitioner is fully aware that the first order having been revoked it is the second order, viz., the fresh order of detention dated 16th February, 1976, that he has to get rid of. With a view to achieve that object he has applied for amendment simply to cling to and avail of the interim protection granted by the Admitting Bench of which fact he makes no secret. The petitioner states in para 47(III) (c) of the present application that the State of Haryana had planned to revoke the earlier detention order and to pass a fresh detention order against him to serve the same upon him and execute it in such a manner so as to 'deprive the petitioner of the protection of the interim order granted by this Court on 4-2-1976', particularly to prevent the petitioner from approaching the Court in time for an appropriate interim relief in respect of the subsequent detention order. If the intention of the substantive application is only to avail of interim relief, then this is not permissible. The High Court cannot make a direction under Article 226 of the Constitution for the purpose of granting interim relief only either pending institution of a suit or substantive petition or in order to facilitate it. This has been held to be outside the purview of Article 226 of the Constitution in State of Orissa v. Madan Gopal Rungta, : [1952]1SCR28 . Apart from the above observations, the relief sought in the unamended petition and the one which is sought to be obtained in the amended petition cannot be said to be the same relief. In the present petition relief sought is to have the earlier detention order dated 30th November, 1975, quashed while the relief after amendment would be to have the fresh order of detention dated 16th February, 1976, quashedBesides, the cause of action in the writ petition having been satisfied by the revocation of the earlier order nothing survives in the petition on the principle of 'accord and satisfaction' to enable the petitioner to seek its amendment. If the term 'cause of action' means the cause of action on the foot of which a suit is brought, which without doubt it is, the subsequent order dated 16th February, 1976. niav provide a fresh cause of action to maintain a fresh petition. The order of detention since revoked and the fresh order dated 16th February, 1976, in substance cannot be said to be the came transaction. That being so, the alleged threatened infringement of the right of liberty of the petitioner at the hands of the State of Haryana and its officers cannot be said to have arisen in substance out of the same transaction, namely, the earlier order of detention since revoked. The amendment sought cannot be said to amount to a different or an additional approach to the relief earlier sought.

(26) Strong reliance was placed upon Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon : [1970]1SCR22 , in which it was observed that 'the power to grant amendment of the pleadings is intended to serve the ends of justice' and that ''Rules of procedure are intended to be a handmaid to the administration of justice'. It was contended that the amendment sought, be allowed as it will serve the ends of justice, and that the petitioner should not be driven to file a fresh petition. In the above case Manohar Lal son of Jai Jai Ram filed a suit against the respondent for recovery of amount for the supply of timber to them. The action was instituted in the name of 'Jai Jai Ram Manohar Lal', which was the name in which the business was carried on. The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as 'Jai Jai Ram Manohar Lal-by the pen of Manohar Lal' and the plaint was also similarly verified. Defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue. The plaintiff applied for leave to amend contending that the firm 'Jai Jai Ram Manohar Lal' was a Joint Hindu Family business and that the defendant knew it that Manohar Lal whose name was there along with the father's name was the proprietor of it. The plaintiff on this averment applied for leave to describe himself in the cause-title as 'Manohar Lal, proprietor of Jai Jai Ram Manohar Lal' and in para 1 of the plaint to state that he carried on the business in timber in the name of 'Jai Jai Ram Manohar Lal'. The amendment was allowed by the trial Judge. Ultimately the suit was decreed. In appeal the High Court dismissed the appeal holding that the action was instituted in the name of (a) non-existing persons and (b) the subordinate judge was incompetent to grant leave to amend the plaint. The Supreme Court in appeal held that the order passed by the High Court could not be sustained because the plaintiff was carrying on the business as a commission agent in the name of 'Jai Jai Ram Manohar Lal'. They further held that the plaintiff was competent to sue in his own name as a manager of the H. U. F. to which the business belonged. Repelling the view of the High Court for rejecting the application for amendment in that it did not contain an averment that the misdescription was on account of a bona fide mistake, it was observed that there is no rule that unless in an application for amendment of the plaint it was expressly averred that the error, omission or misdescription was due to a bona fide mistake, the Court had no power to grant leave to amend the plaint. It was in that context that the observations set out earlier, on which Shri Sohrabjee relied strongly, were made. It would be seen that the amendment sought by the plaintiff in the above-cited case was allowed as it was held that the plaintiff was competent to sue in his own name as manager of the H. U. F. to which the business belonged- In that case there was no question of substituting one cause of action for another. That being so, the observations of the Supreme Court relied upon by the learned counsel for the petitioner cannot be the basis for a warrant to allowing amendment in all cases regardless of the facts and circumstances of each case.

(27) Reliance was next placed on L. Leach and Co. Ltd. and another v. Messrs Jardine Skinner and Co., : [1957]1SCR438 . In that case the appellants instituted a suit against the respondents for damages for conversion of goods alleged to have been imported by the respondents on behalf of the appellants and that the respondents in refusing to deliver the same to the appellants were guilty of conversion. A learned Single Judge of the Bombay High Court decreed the suit. In appeal a Bench of the Court dismissed the suit holding that on the terms of the agreement on which the suit was based the title of the goods imported by the respondents vested in them and that it would pass to the appellants only when the respondents endorsed the shipping documents in their favor and that as that had not been done the claim for damages on the basis of conversion was misconceived. Before the Supreme Court, in appeal, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods. The respondents resisted the application alleging that the amendment introduced a new cause of action. The Court allowed the amendment holding that the appellants in their notice did not claim any damages for wrongful termination 'of the agreement and that in fact what they claimed was only damages for non-delivery of goods in respect of orders placed by them and accepted by the respondents prior to the termination of the agreement by the notice. Besides, clause 14 of the agreement expressly reserved that right to the appellants and the suit being founded on the agreement, a claim based on clause 14, it was held, could not be said to be foreign to the scope of the suit. The appellants sought by their amendment only to claim damages in respect of those consignments which prayer was already there in the suit. It was in that context that their Lordships observed that all the allegations which were necessary for sustaining the claim of damages for breach of contract were already in the plaint and that what was lacking was the allegation that the appellants were. in the alternative, entitled to claim damages for breach of contract by She respondents for non-delivery of the goods and accordingly allowed the amendment.

(28) This case is distinguishable on its own facts, and cannot be pressed into service by the petitioner to claim amendment of the petition by substitution a wholly distinct and different cause of action, namely, fresh detention order in place of the earlier detention order since revoked.

(29) Strong reliance was then placed on Pasupuleti Venkateswarlu v. The Motor & General Traders, (C.A. Nos. 2120 to 2122 of 1972) decided by the Supreme Court on 18th March, 1975 (5), wherein it was held that parties normally should not be driven to a second suit if one was bound to be instituted in refusing amendment sought by a party. In that case the appellant-londlord claimed eviction of the respondent by rent control proceedings on the ground that he needed the premises in occupation of the respondent-tenant for starting his own business. He remained unsuccessful both before the Rent Controller and the Appellate Authority. He then filed a revision before the High Court which remanded the case to the appellate authority, who in turn after hearing the parties remitted the case to the trial Court for fresh disposal. The appellant-landlord came in revision before the High Court contending that wholesale remittal of the case to the Rent Controller, instead of calling for a finding on a specific point, was illegal. During the pendency of the revision petition the landlord had come into possession of another shop which position knocked out the bottom from the case in the eviction petition. The High Court taking note of the changed circumstances not only dismissed the revision out also the eviction petition as well, stating that it would not be desirable to exercise its discretion in directing an amendment of the petition. The High Court, however, in its order had observed :

'IFso advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his having come into possession of a portion of the building.'

ITwas in that view of the matter that their Lordships of the Supreme Court observed that it was-

'unfair to drive the parties to a new litigation of unknown duration' leaving 'the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight',

ANDin view of the fact that an appeal is in the nature of re-hearing the case and that the Court of appeal in moulding the relief to be granted was entitled to take into account even facts and events which had come into existence after the decree appealed against, instead of driving the parties to new litigation of unknown duration, their Lord ships allowed the amendment.

(30) The above-cited case is again distinguishable on its own facts. The amendment was allowed because of the peculiar special circumstance's of the case; more so when the High Court itself had allowed the petitioner to file a fresh petition after a near-decade old litigation opening the gates of 'a fresh unending chapter of forensic fight'. That case did not involve the substitution of a fresh cause of action which the petitioner, in the instant petition before us, seeks to do.

(31) The learned counsel for the petitioner next placed reliance upon A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, : [1966]1SCR796 . In that case the appellant had worked for the respondent under a contract which only specified the rates for different categories of work. The contract contained a clause envisaging that the quotation was based on prevailing labour rate of Rs. 1-4-0 per cooly and if there was increase of labour rate of more than 10 per cent in any particular month, the proportionate increase in rate would be charged. Subsequent to the making of the contract there was an increase in labour rate per cooly by 20 per cent. The appellant claimed that under the above clause it was entitled to the whole amount of increase while the respondent contended that it was entitled to a part of it only. The appellant because of the difference having arisen between the parties on the interpretation of that clause, filed a suit against the respondent claiming a declaration that on a proper interpretation of the clause it was entitled to enhancement of 20 petcent over the tendered rates. The trial Court decreed the suit. Before the High Court the respondent resisted the maintainability of the suit for declaration only in view of section 42 of the Specific Relief Act, 1887. The High Court sustaining the objection dismissed the suit. The appellant thereafter sought to amend the suit seeking extra relief for a decree of Rs. 65.000 or such other amount that may be found due on proper account being taken. The amendment was refused. The appellant came in appeal in the Supreme Court against that order. Since the suit was filed on the contract seeking interpretation of the clause in dispute for a decision of the rights of the parties under it the Supreme Court held that it was the contract which formed the cause of action on which the suit was based and that the amendment sought, introduced a claim based on the same cause of action, viz., the same contract and since the claim for money was in substance the claim from the very beginning though it had not been formally made, their Lordships observed that it was pre-eminently a case for allowing the amendment. It was in that context and background that their Lordships observed that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes. However, it was reiterated that as a general rule a party is not allowed by amendment to set up a new case or a new cause of action, the amendment has to be allowed only when the amendment sought amounts to no more than a different or an additional approach to the same facts.

(32) We fail to see how this authority is of any assistance to the Pradesh 9(1), was cited by the learned counsel for the petitioner to relied upon it to contend that the petitioners' application, which seeks to substitute a different cause of action springing from the fresh order of detention dated 16th February, 1976, in substitution of the earlier order since revoked on the basis of which the petition was filed, deserves to be dismissed.

(33) Amritlal N. Shah v. Alla Annapurnamma, : AIR1959AP9 , was cited by the learned counsel for the petitioner to contend that in a proper case the Court is entitled to take note of the subsequent events and grant relief if by so doing it could shorten litigation and best attain the ends of justice. The Bench of the Andhra Pradesh High Court made the above observations in that case in a wholly different context. Fresh order of detention which is now sought to be impugned by seeking amendment of the petition, cannot be said to be a subsequent event giving rise to a different or an additional approach in furthering the relief already prayed.

(34) AMRITLAL'S case (supra) proceeded on entirely different footing. In that case the respondent-landlady filed a suit for recovery or arrears of rent and possession of the property which was granted by her on lease to the appellant for a period of five years- During the pendency of the suit the lease had expired. The landlady made an application for amendment of the plaint and for recovery of possession on that fresh ground. The amendment sought was allowed. Order allowing the amendment was challenged in appeal urging that the alleged fresh ground in fact constituted 'a fresh cause of action'. Rejecting the contention, it was held that the amendment was rightly allowed in granting the relief as to the recovery of possession by reason of the expiry of the lease during the pendency of the suit without driving the landlady to a separate suit. It is evident that the amendment sought in the above cited case was in respect of the subsequent event giving rise to an additional approach in seeking the relief for possession already claimed by the landlady. The case of the petitioner before us, however, as already observed by us in an earlier part of this judgment, stands on a different footing.

(35) Lastly, reliance was placed on a Bench decision of the Bombay High Court in case, Gaganmal Ramchand v. The Hongkong and Shanghai Banking Corporation, : AIR1950Bom345 , to contend that with the revocation of the earlier detention order dated 30th November, 1975, at best it could be said that the petition as at present filed does not disclose a cause of action and was liable to be rejected under Order 7 Rule 11 of the Civil Procedure Code and even in such a case the petitioner could seek amendment. We express our inability to sustain this contention. In Gaganmal Ramchand's case a contention was raised that since the claim did not disclose any cause of action the plaint ought to have been rejected and that the trial Court in allowing the amendment of the plaint had permitted the plaintiff to plead facts which would give them a cause of action and that the Court in such circumstances had no jurisdiction to allow amendment of the plaint. It was in that context that the Bench observed that the scheme of the Civil Procedure Code ., Order 6 Rule 17, is very wide in its terms and it gives power to the Court to allow either party to alter or amend his pleadings in order that the real question in controversy between them should be adjudicated upon and that this power was in no way restricted or controlled by the provisions contained under Order 7 Rule 11, Civil Procedure Code and that it would be an extraordinary proposition to lay down that if various averments had to be made in the plaint which would go to constitute a cause of action but by some oversight or mistake the plaintiff failed to make one of the averment's then in that case the plaint must be dismissed and the plaintiff could not apply for amendment to make the necessary averment. That case is again of no assistance to the petitioner. It is not his case that by some oversight or some mistake he forgot to make an averment about the fresh detention order. On the contrary his stand is that this order is a subsequent event of which the Court ought to take not for moulding the relief sought by him. We do not agree. There is a clear distinction between amending a petition which originally disclosed a cause of action and amending a petition or a plaint so that it may disclose a cause of action. In the latter case amendment should be allowed on the basis of the rule enunciated in Gaganmal Ramchand's case (supra) and Smt. Abnash Kaur's case (supra). In the former situation amendment can only be allowed if the additional facts or new facts are pleaded in furtherance of the cause already pleaded. We have already noticed, and this is settled law, that one cause of action cannot be substituted for another cause of action but an additional ground in support of the existing cause of action or a cause of action in the alternative can be pleaded, if necessary, by amendment.

(36) The argument of the learned counsel for the petitioner rests on the premises that the cause of action accrues to the petitioner from his claim that he cannot be deprived of his liberty by exercise of power under section 3(1) of the Act by the State of Haryana and its Officers in the absence of the requisite condition precedent to the exercise of that power. There is, however, a basic fallacy in this contention- It is beyond controversy that in the absence of any act done by the defendant no cause of action can possibly accrue. In the instant case, the cause of action now springs into existence from the fresh order of detention and the petitioner seeks to avoid his arrest in the execution of that order. That being so, it is wholly a new cause of action which cannot be allowed to be substituted by an amendment of the writ petition.

(37) We accordingly, dismiss this application (Cr. M. 447 of 1976).

(38) In view of our finding that the writ petition had become in- fructuous on or before 13th February, 1976, we also dismiss Criminal Writ No. 15 of 1976 and Cr. M. 132 of 1976 as well as stay application (Cr. M. 446 of 1976) moved on behalf of the petitioner on 13th February, 1976, and vacate the stay order that had been granted on 4th February, 1976, and discharge the rule. Amendment disallowed.


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