1. This petition under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure is by the Appellant for amendment of the plaint by omitting the words (1) 'and nothing more' occurring in paragraph 8; (2) 'and pay the plaintiff the amounts that are still with him' less the amounts already paid' occurring in paragraph 9; and (3) 'much more will be due' occurring in paragraph 12 of the plaint.
2. The petitioner's suit before the Sub-Court, Devakkottai was for directing the respondent-defendant to render account of all the transactions made by the defendant as the plaintiff's agent from 22nd January, 1965 and also for all the amounts received by the defendant on the plaintiff's behalf as his agent including the amount received from one Alagappa and to pay the petitioner whatever may be found to be due to him. According to the plaint the plaintiff, the defendant and their two brothers Alagappa and Annamalai were partners of A. K. A. CT. V. Firm carrying on business at Kula. Lumpur each of them having one-fourth share. On 22nd January, 1965 the plaintiff executed a general power of attorney at, Karaikudi in Tamil Nadu authorising the defendant to transact all his business, sell his properties and receive the sale price and other monies etc. The plaintiff and the defendant have retired from the partnership on 27th March, 1965 leaving their other two brothers, Alagappa and Annamalai to carry on the business, in consideration of Alagappa paying the plaintiff and the defendant 6,50,000 dollars each equivalent to Rs. 16,12,000 at Rs. 248 per 100 dollars for taking their shares and all the assets in the firm. The defendant received from Alagappa as the plaintiff's agent a sum of 6,50,000 dollars equivalent to Rs. 16,12,000 on or about 13th April, 1965 and remitted to the plaintiff at Kottaiyur four sums, namely Rs. 25,000 on 25th October, 1965, Rs. 1,30,750 on 7th February, 1966 and Rs. 25,311-65 on 7th February, 1966 and Rs. 4,56,340 on 11th August, 1967 aggregating to Rs. 6,37,401.65 'and nothing more'. The defendant is bound to render an account of the monies received from Alagappa and pay the plaintiff the amounts that are still with him 'less the amounts paid'.
3. The plaintiff has valued the suit for court-fee and jurisdiction tentatively at Rs. 12,000 under Section 35 (1) of the Court-fees Act XIV of 1955 and paid a court-fee of Rs. 900.50, and added in paragraph 12 of the plaint that much 'more will be due' and that if on taking accounts more is found due by the defendant, he will pay the court-fee on the excess found due to him.
4. The defendant has contended, inter alia, in his written statement that the suit is not properly valued and proper court-fee has not been paid.
5. The learned Subordinate Judge dismissed the suit with costs on 13th December, 1971 holding that the plaintiff is not entitled to the relief of accounting prayed for. On issue 6 relating to valuation and court-fee, he had given a finding on 21st January, 1971 that the valuation and court-fee paid are proper. In that finding he has observed:
We cannot expect the plaintiff to know what amount the defendant received on his behalf even though it is admitted by the parties that the share of the plaintiff's assets in the firm was valued at Rs. 6,50,000 dollars and taken over by his elder brother Alagappa Chettiar. In these circumstances the plaintiff has filed the suit as one for rendition of accounts and valued the same at Rs. 12,000. As the plaintiff cannot be expected to know the amount received by the defendant on his behalf, the frame of the suit and its valuation for the purpose of court-fee and jurisdiction cannot be said to be wrong. So I hold that the plaint has been properly valued and proper court-fee has been paid.
When arguments in the appeal were advanced it was submitted by the learned Counsel for the respondent by way of assisting the Court that though under Clause (1) of Section 35 of the Court-fees Act, 1955 in a suit for accounts fee has to be computed on the amount sued for as estimated in the plaint and Clause (2) of that section lays down that where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of that amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount so ascertained is paid, and if the additional fee is not paid within such time as the Court may fix the decree shall be limited to the amount to which the fee paid already extends and the estimate must be an honest estimate and it must approximate to the amount alleged to be due, and should not be widely discrepant with the amount alleged in the plaint to be due. It was further submitted that though no revision has been filed against the finding of the learned Subordinate Judge on the issue relating to court-fee, under Section 12(4) of the Court-fees Act, 1955, it is lawful for the Court hearing the appeal, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon. On facts it was submitted that the allegation in the plaint is that the defendant, as the plaintiff's agent, has received from Alagappa a sum of 6,50,000 dollars equivalent to Rs. 16,12,000 and has remitted to the plaintiff only four sums aggregating to Rs. 6,37,401.65 during the period from 25th October, 1965 to 11th August, 1967 and nothing more and therefore according to the plaint a sum of Rs. 9 lakhs odd is due to the plaintiff, and therefore the estimate in the plaint at Rs. 12,000 is not an honest estimate and court-fee should be paid on the amount approximating to the amount alleged to be due. On the other hand it was contended on behalf of the appellant that the defendant has no locus standi to question the correctness of the trial Court's finding on the question of court-fee and that the court-fee paid is in accordance with Section 35 (1) of the Court-fees Act. Orders were reserved by us on the question of court-fee.
6. Subsequently the petition for amendment of the plaint has been filed without prejudice to the submissions already made on behalf of the plaintiff-appellant on the question of valuation. In the petitioner's affidavit filed in support of the petition, it is alleged that the object of the defendant is only to coerce the petitioner to terms by resort to technical pleas and dilatory tactics, and it is prayed that the petitioner may be permitted to amend the plaint as stated above. It is further stated that the proposed amendment does not in any manner change the complexion of the suit or the cause of action, that the respondent will in no way be prejudiced by the amendment being allowed, and that the amendment will not cause any prejudice even to the revenue in that the petitioner will be bound to pay the court-fee in the trial Court on the amount which will be ultimately ascertained as due to the petitioner from the respondent-defendant.
7. The petition is opposed. It is contended in the counter-affidavit of the respondent that the petition is thoroughly lacking in bona fides and amounts to abuse of the process of the Court and intended to circumvent the provisions of law contained in the Court-fees Act, 1965 under the apprehension that this Court is likely to hold that the relief has not been properly valued. It is further contended that even if the amendment prayed for is allowed, it would be clear from the remaining allegations in the plaint that the value given in paragraph 12 of the plaint is not the correct value and therefore whatever was submitted by the respondent's counsel in the course of his submission on the question of court-fee and valuation will still hold good, and that in any case the petition is belated and liable to be dismissed on that ground also.
8. In the reply affidavit of the petitioner it is denied that the petition is lacking in bona fides and it is contended that the respondent's objection to the valuation is belated and lacking in bona fides. It is denied that there is any delay in coming forward with the petition for amendment of the plaint and it is contended that the petition has been filed at the earliest point of time and that the respondent having understood that he has no case on merits, is adopting dilatory tactics and raising technical pleas to postpone the decision in the appeal.
9. This petition has been filed under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure, It is contended on behalf of the respondent that when Order 6, relates to pleadings generally and Rule 17 of that order to amendment of pleadings, it is not open to the petitioner to apply for amendment of the plaint by resorting to Section 151 of the Code of Civil Procedure which reads:
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Order 6, Rule 17 reads:
The Court 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 necessary for the purpose of determining the real question on controversy between the parties.
10. In support of the contention that Section 151 also can be resorted to, reliance has been placed by the learned Counsel for the petitioner on the decision of the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal : AIR1962SC527 . In that case, the respondent before the Supreme Court, applied under Section 151, Code of Civil Procedure, to the Court at Indore for restraining the appellant from continuing the proceedings in the suit filed by him in the Court at Asansol. He alleged that the appellant filed the suit at Asansol in order to put him to trouble, heavy expenses and loss of time and that he was taking steps for the continuance of the suit filed in the Court at Asansol. The submission was that the Court cannot exercise it's inherent powers when there were specific provisions in the Code of Civil Procedure for the issue of interim injunction in Section 94 and Order 39; There was difference of opinion between the High Courts on the point. One view was that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order 39 of the Code of Civil Procedure. The other view was that a Court can issue a temporary injunction under circumstances which are not covered by Order 39 of the Code of Civil Procedure, if the Court is of opinion that the interests of justice require the issue of the same. The Supreme Court held, Shah, J., as he then was dissenting, that Section 151 'itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent powers by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court. It is a power inherent the Court by virtue of its duty to do justice between the parties before it'. Earlier, in the same judgment, the Court has observed:
No party has a right to insist on the Court's exercising its jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so...the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But these powers are not to be exercised, when their exercise may be in conflict with what was expressly provided in the Code or against the intentions of the Legislature. The restriction for practical purposes on the exercise of these powers is not because these powers are controlled by the provisions of the Code, but because it should be presumed that the procedure specially provided by the Legislature for orders in certain circumstances is dictated by the interests of justice.
Shah, J., in his dissenting judgment observed:
The powers of Courts other than chartered High Courts in the exercise of their ordinary original civil jurisdiction to issue temporary injunctions are defined by the terms of Section 94 (1)(c) and Order 39, Code of Civil Procedure. A temporary injunction may issue if it so prescribed by Rules in the Code. The provisions relating to the issue of temporary injunctions are to be found in Order 39, Rules 1 and 2; a temporary injunction may be issued only in those cases which come strictly within those Rules, and normally the civil Courts have no power to issue injunctions by transgressing the limits prescribed by the rules...the power of the civil Courts other than Chartered High Courts must be found within Section 94 and Order 39, Rules 1 and 2 of the Civil Procedure Code.
11. On the other hand, reliance was placed on behalf of the respondent in support of the contention that amendment of pleadings cannot be made under Section 151, if the case does not fall within the special provisions of Order 6, Rule 17 of the Code of Civil Procedure on the subsequent decisions of the Supreme Court. The first of those decisions is Arjun Singh v. Mohindra Kumar and Ors. : 5SCR946 . There, it has been observed:
'It is common ground that the inherent power of the Court cannot override the express provisions of law. In their words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates...if this provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice.
In the second decision Ramkarandas Radhavalldbh v. Bhagwandas Dwarkadas : 2SCR186 . it has been observed:
It has been observed by this Court in Manohar Lal v. Seth Hiralal : AIR1962SC527 , 'the inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure'. This is a well recognised principle. Rule 4 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under Order 37 and hence if a case does not come within the provisions of that Rule, there is no scope to resort to Section 151 for setting aside such a decree. We, therefore, agree with the High Court that the appellate Bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under Section 151.
It would appear from the aforesaid later decisions of the Supreme Court that the dissenting view of Shah, J., as he then was, expressed in Manohar Lal v. Seth Hiralal : AIR1962SC527
referred to above, has come to be accepted by the Supreme Court. Therefore, it is not possible to agree with the learned Counsel for the petitioner that resort can be had to Section, 151 of the Code if a case is not covered by Order 6, Rule 17 of the Code for amendment of the plaint. We agree with the learned Counsel for the respondent and hold that resort cannot be had to Section 151 where the case is not covered by the specific provisions made in Order 6, Rule 17 of the Code for amendment of the pleadings. Rule 17 is in Order 6 dealing with pleadings generally.
12. Learned Counsel for the petitioner invited our attention to some decisions which are more relevant to the question of the court-fee payable on the relief claimed in the plaint rather than to the question of amendment prayed for in this petition. In In re, Venkatanandam : AIR1933Mad330 , decided by a Division Bench of this Court, presided over by Ramesam and Mockett, JJ., the suit was filed for dissolution of partnership, settlement of accounts and recovery of such amounts as may be due to the plaintiffs. The plaintiffs valued the suit under Section 7(iv)(f) of the Court-fees Act, 1870 at Rs. 7,500. A decree was passed directing defendants 3 to 5 to pay certain sums of money with interest at 6 per cent, per annum from 1st April, 1924. In the memorandum of appeal filed by defendants 3 to 5 the valuation was at Rs. 12,770 and odd and the court-fee payable was said to be Rs. 847 and odd but a court-fee of only Rs. 447 and odd was actually paid on the ground that the appellants did not have enough money and the idea was to pay the deficit court-fee afterwards. In the affidavit filed on behalf of the appellants, it was stated that the valuation was made at Rs. 12,770 and odd according to the old practice. The office did not return the memorandum of grounds for supplying the deficit court-fee. Subsequently, the appellants put in a petition to revise the valuation in such a way that the court-fee paid would be adequate until the hearing of the appeal, namely at Rs. 5,500. The learned Judges have observed:
If the only valuation which is possible for the appeal is Rs. 12,700 then of course, he cannot do this. But it is contended on the footing of the Privy Council decision in Faizullah Khan v. Mouladad Khan 57 M.L.J. 281: 117 Ind.Cas. 493 ; 30 L.W. 104 : A.I.R. 1929 P.C. 147, that even in an appeal relating to the accounts of a partnership a tentative valuation can be given by the appellant under Section 7(iv)(f), Court-fees Act. In that case, the plaintiff filed a suit on a valuation of Rs. 3,000, but the first Court gave a decree against him for Rs. 19,991. The plaintiff filed an appeal in which he paid court-fees on the said sum of Rs. 19,991. But in the memorandum of appeal, he prayed that the decree against him should not only be vacated but that he should also get a decree for Rs. 3,000. The Privy Council held that the amount actually paid is good enough for covering both the reliefs. In the Judgment, Lord Shaw said:
Their Lordships find no reason for treating that payment either as upon an under value or a split value. Their Lordships think, with respect to the Judicial Commissioner, that it was a mistake to treat the payment of Rs. 975 as a fee made only on the amount of the decree passed against the appellants. That amount, as already stated, may not be only in full but largely in excess of the true sum of relief at which a sound valuation could in the present circumstances be said to reach and it covered the appeal as a whole, including that sum on the one hand and a much smaller figure of Rs. 3,000 on the other.
The view apparently, taken by their Lordships is that the appellant can pay court-fee on a notional valuation as in the first Court. Even if some of the sums in respect of which he was appealing are definite amounts, the actual court-fee he pays should be supposed to cover any actual sums decreed and any uncertain sums in respect of which relief is sought... According to the view of the Privy Council the appellant whether plaintiff or defendant, can give some valuation and one cannot complain that the amount in the memorandum is not the proper amount, the reason being that in suits for accounts it is impossible to say at the outset what exact amount the plaintiff will recover, and they apply this principle to appeals also.
It was argued on behalf of the petitioner by the learned Counsel that this decision would show that the petitioner can give any valuation in the plaint and one cannot complain that the amount is not a proper amount. A similar argument advanced on the question of the sufficiency of the court-fee paid, would be considered separately in the order to be made on the question of court-fee.
13. The next decision relied upon by the learned Counsel for the petitioner is of the Supreme Court in Ganesh Prasad v. Narendra Nath : AIR1953SC431 . In that case, it was argued that after the Subordinate Judge passed the decree in favour of the appellants, the respondent filed the appeal before the High. Court without the necessary court-fees stamp. On the appellants' objection, the matter was discussed before the Registrar who held that ad valorem court-fee must be paid on the appeal. The prayer in the memorandum of appeal as it stood then was: 'The appeal be allowed and the plaintiffs' suit be dismissed with costs throughout'. In view of that order of the Registrar, the respondents prayed for amendment of their prayer by adding the following words 'except delivery of possession of schedules K, Kha, Ga, except lot No. 7 of the properties mentioned in the plaint. The Division Bench of the High Court permitted the amendment at the appellants' risk. The matter came thereafter again before the Registrar who while doubting the prudence of the respondents in making the amendment, held that as the appeal memo stood, court-fee was properly paid on the footing that the decree under appeal was only a declaratory decree. When the appeal came up for hearing, the question of maintainability was argued as a preliminary objection and the High Court upheld the objection, but allowed the respondents (appellants before the High Court) to delete the amendment made and gave them time So pay the requisite court-fee. The argument advanced before the Supreme Court that the order of the High Court was wrong particularly because it took away the valuable right of the appellants to plead the bar of limitation if the appeal was treated as filed on the day the requisite court-fee was paid in the High Court, was repelled by the learned Judges. The Supreme Court has observed:
The contention therefore that by allowing the amendment, the High Court took away the present appellants' valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High. Court, the payment of court-fees is a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention.
On the basis of this decision, it was contended on behalf of the petitioner-plaintiff that the question of valuation of the relief and the sufficiency of the court-fee paid could not be questioned. Such an argument advanced on the question of the sufficiency of the court-fee already paid would be considered in the order to be passed about the court-fee.
14. The third decision brought to our notice by the learned Counsel for the petitioner is of a Bench of this Court consisting of Rajagopalan and Balakrishna Iyer, JJ., in Sathappa Chettiar v. Ramanathan Chettiar : AIR1955Mad682 . In that suit which was for partition and accounting the plaintiff valued the suit for purposes of jurisdiction at Rs. 15,00,000 and the relief of accounting at Rs. 10,000 and paid court-fee under Article 17-B of Schedule II, Court-fees Act, 1870, without separately valuing the claim to a half share in the properties. The High Court decided on 28th April, 1954 that court-fee should be paid on the memorandum of appeal, not under Article 17-B, Schedule II, but under Section 7(iv)(b) and directed the plaintiff to value the relief claimed in the memorandum of appeal on that basis. The plaintiff thereupon valued the relief he claimed in the properties at Rs. 50,000. When objection was taken to the valuation, he filed a petition to amend the plaint by substituting the figure Rs. 50,000 for the figure Rs. 15,00,000 as the valuation for purposes of jurisdiction. The learned Judges were of the opinion that the amendment should not be allowed. They observed:
In Ramayya v. Ramaswami (1922) 24 M.L.J. 233: 18 Ind.Cas. 363, a Full Bench of this Court laid down that the Court could not reject the valuation made by the plaintiff in a suit under Section 7(iv) even if such valuation was proved to be not bona fide but an arbitrary valuation. These principles were reaffirmed by two other Full Benches in Arunachalam Chetty v. Rangaswami Pillai 28 M.L.J. 118: I.L.R. Mad. 922 : 28 Ind.Cas. 79. and Narayana v. Periappan.... In Narayana v. Periappan : AIR1938Mad887 the learned Chief Justice laid down:
In our opinion the scheme of the Act in this respect is to allow a plaintiff to value his relief at the figure he chooses, but it does not allow him to change that valuation. He is allowed to value for the purpose of the litigation and when he has done so his valuation governs the forum of trial and of appeal. There is no objection to an appellant abandoning on appeal a portion of the relief claimed in the lower Court or saying that he does not claim relief beyond the figure corresponding to the value of the stamp, but unless he does this we are of opinion that he is bound by the valuation fixed by himself at the commencement of the litigation...whether he could have in the circumstances of the case furnished an arbitrary valuation for the purpose of court-fee wholly unrelated to the itemised valuation he gave for purposes of jurisdiction with reference to the real value of the properties, does not really arise for consideration.... Since as we have already pointed out, the valuation for the purpose of court-fee payable on the memorandum of appeal in such a case as this could not differ from the valuation of the plaint for the purpose of court-fee, we have to hold that the plaintiff should value the relief that falls in this case under Section 7(iv)(b) of the Court-fees Act at Rs. 15 lakhs.
In this view, the learned Judges held under Section 12(2) of the Court-fees Act, 1870, that deficit court-fee computed under Section 7(iv)(b) of the Court-fees Act, on the valuation of Rs. 15 lakhs furnished by the plaintiff himself should be paid by the date specified by them.
15. But the Supreme Court has taken a different view in the matter, when it came up before them in Sathappa Chettiar v. Ramanathan Chettiar : 1SCR1021 . There it has been observed:
The question which still remains to be considered is whether the Division Bench was justified in directing the appellant to pay court-fees both on the plaint and on the memorandum of appeal on the basis of the valuation for Rs. 15,00,000. In our opinion, the appellant is justified in contending that this order is erroneous in law. Section 7, Sub-section (iv)(b) deals with suits to enforce the right to share in any property on the ground that it is joint 'family property and the amount of fees payable on plaints in such suits is 'according to the amount at which the relief sought is valued in the plaint or memorandum of appeal'. Section 7 further provides that in all suits falling under Section 7(vi) the plaintiff shall state the amount of which the value of the relief is sought. If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of Section 7 is considered, it would be clear that, in respect of suits falling under subsection (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fess.... In other words, so far as suits falling under Section 7, subsection (iv) of the Act are concerned, Section 8 of the Suits Valuation Act provides that the value as determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of Section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court-fees and that is natural enough. The computation of court-fees in suits falling under Section 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction. The value for court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined....
As we have already indicated Section 8 of the Suits Valuation Act postulates that the plaintiff should first value his claim for the purpose of court-fee and it provides for the determination of the value for jurisdiction on the basis of such claim. In our opinion, therefore, the learned Judges of the Madras High Court were in error in holding that the valuation for jurisdiction showed in the plaint should be taken to be the valuation for the payment of court-fees on the plaint as well, as the memorandum of appeal. In view, of their prior decisions that the present case fell under Section 7(iv), (b), they should have allowed the appellant to amend his valuation for the payment of court-fees not only on the memorandum of appeal but also on the plaint.
16. The plaintiff in the aforesaid suit had not separately valued the claim for his half share in the property. Subsequently, he valued the relief in, respect of the properties at Rs. 50,000. The question for consideration was whether in such circumstances, the plaintiff was entitled to have the plaint amended by mentioning the relief claimed to a half share of the properties for the first time as Rs. 50,000 and whether in view of Section 8 of the Suits Valuation Act, that value should not be deemed to be the value for the purpose of jurisdiction, and the plaintiff was bound to treat his original value for purposes of jurisdiction at Rs. 15 lakhs as the valuation 'for purposes of court-fee also. The facts are not similar in the present case. What is relevant to be noted for the purpose of the present case is, what has been laid down by the learned Chief Justice at page 1039 in Narayana v. Periappan I.L.R. (1938) Mad. 1031 vis,
the scheme of the Act in this respect is to allow a plaintiff to value his relief at the figure he chooses, but it does not allow him to change that valuation. He is allowed to value for the purpose of the litigation and when he has done so his valuation governs the forum of trial and of appeal. There is no objection to an appellant abandoning on appeal a portion of the relief claimed in the lower Court or saying that he does not claim relief behind the figure corresponding to the value of the stamp, but unless he does this we are of opinion that he is bound by the valuation fixed by himself at the commencement of the litigation....
The petitioner-plaintiff in the present case has valued the relief at a particular amount and he does not seek to give up or abandon any portion of the relief claimed by him and he cannot therefore be allowed to make any amendment in the plaint, the effect whereof may be to reduce his liability to pay court-fee the relief already claimed in the plaint without abandoning any part of his claim.
17. Learned Counsel for the petitioner lastly relied upon the following observation of Beg, CJ. and Desai, J., in Ganesh Trading Company v. Moji Ram : 2SCR614 :
Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really in issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take....
It is true that if a plaintiff seeks alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time....
The petitioner-plaintiff in the present case is, no doubt, not seeking by the amendment to put forward a new or inconsistent cause of action and there is no case of depriving the respondent-defendant by the amendment of any right which might have accrued to him under the law of limitation. But the petitioner has to satisfy the requirements of Order 6, Rule 17 of the Code of Civil Procedure before he could be allowed to make the amendment in the plaint having regard to the aforesaid decisions of the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1962) 1 S.C.R. 450 and Arjun Singh v. Mohindra Kumar and Ors. : 5SCR946 .
18. In the affidavit filed in support of the petitioner for amendment, the petitioner after referring to what has happened in the trial Court regarding the question of the sufficiency of court-fee paid on the plaint and what was submitted before us on the question of the court-fee during the hearing of the appeal and after setting out amendments prayed for, has stated that the proposed amendments do not in any manner change complexion of the suit or the cause of action, that the respondent will not in any way be prejudiced, by the amendments being allowed, that the amendments would not cause any prejudice to the revenue as the petitioner will be bound to pay the court-fee for it in the trial Court on the amount that may ultimately be ascertained as due to him from the respondent and that the petitioner may, therefore, be permitted to amend the plaint as prayed for. The petitioner has not given any explanation for making the statements in the plaint which are now sought to be omitted, or how the amendments are necessary for the purpose of determining the real questions in controversy between the parties. The petitioner will not be entitled to have the plaint amended merely alleging that the amendment will not cause any prejudice to the respondent or the revenue. It is clear that the amendment has been prayed for only to make it appear that the court-fee already paid on the relief claimed is sufficient without at the same time giving up any portion of the relief claimed in the plaint. In these circumstances, in view of the aforesaid observation of the learned Chief Justice in Narayana v. Periappan I.L.R. (1938) Mad. 1031 extracted above, it is not open for the petitioner to have the amendments made in the plaint.
19. The proposed amendments do not really help the petitioner, for the plaint, in the main, would be the same even after the amendments are made. According to paragraph 5 of the plaint, the general power of attorney given to the respondent on 22nd January, 1965 is to transact all the petitioner's business, sell the petitioner's properties and receive the sale proceeds and other monies etc., According to paragraph 6 of the plaint, the petitioner retired 'from the partnership leaving his own fourth share in the partnership including all its assets to be taken by Alagappa in consideration of Alagappa paying him 6,50,000 dollars equivalent to Rs. 16,12,000. According to paragraph 7 of the plaint, the respondent, as the petitioner's agent, received the said 6,50,000 dollars from Alagapa on or about 13th April, 1965. According to paragraph 8 of the plaint, the respondent remitted to the petitioner only four sums aggregating to Rs. 6,37,401-65 there after between the dates 25th October, 1965 and 11th August, 1967. It would appear from what the petitioner has stated in his affidavit filed in support of this amendment petition that the power of attorney is now sought to be confined or restricted to only the said sum of 6,50,000 dollars. This is clear from paragraph 3 of the affidavit where it is stated thus:
The respondent as my agent and on my behalf received on or about 13th April, 1965 from Alagappa 6,50,000 dollars. It is in relation to the said transaction of agency that I filed a suit against the respondent as my agent to render accounts'.
The petitioner cannot be said to have any doubt about the quantum of money due to him from the respondent. It is Rs. 16,12,000 less the four sums aggregating to Rs. 6,37,401-65 paid to him by the respondent. This is clear from the aforesaid allegations made in the plaint and affidavit filed in support of the petition for amendment. Therefore we agree with the learned Counsel for the respondent that the amendment does not really help the petitioner and is unnecessary.
20. The petitioner has contended in his reply affidavit that there is no delay in coming forward with the petition for amendment and that it has been filed at the earliest point of time. The written statement, where it has been contended inter alia that the suit is not properly valued and proper court-fee has not been paid had been filed in June, 1970, The petition for amendment has been filed only in November, 1978 after Appellant's arguments were concluded in the appeal. There can, therefore, be no doubt that there is considerable delay in coming forward with the petition though the petition could not be dismissed on that ground alone.
21. For the reasons stated above, we are of the opinion that the petitioner is not entitled to have the amendments prayed for made in the plaint and we dismiss the petition with costs. Advocate's fee Rs. 100.