1. This appeal is from the decree dated 7 February 1966 passed by A.K. Mukherjea J.
2. The plaintiff Is the appellant.
3. On 7 February 1966 the suit was dismissed with costs.
4. The suit was filed on 8 June 1960. The plaintiff asked for a decree for Rs. 2,74,178-12-3.
5. On 29 July 1965 a summons was taken out by the plaintiff for amendment of the plaint The application for amendment was heard by S.P. Mitra J. on 21 September 1965 and the application was dismissed. There is no judgment to find out the reasons for dismissal of the application. It was contended that amendments should have been allowed.
6. In the application for amendment the plaintiff alleged that the defendant by letter dated 24 July 1957 written and signed by the defendant and/or its agents duly authorised in that behalf duly acknowledged its liability to deliver the balance quantity of the goods under the contract and also acknowledged that the time for delivery and/or performance had not expired. In the subsequent paragraph the plaintiff alleged that the plaint should be amended in the manner as indicated in red ink in a copy of the plaint annexed thereto and that the proposed amendments were by way of elucidation of the allegations and further that by mistake and/or through inadvertence the petitioner failed to incorporate the elucidation and/or particulars in the original plaint.
7. The plaintiffs claim arose out of a contract in writing dated 5 January 1956 whereby the defendant sold and/or delivered to the plaintiff certain quantities of steel rails at rates mentioned in the plaint and delivery was immediate. The plaintiff alleged that the defendant was unable to effect delivery in terms of the contract and that pursuant to the defendant's request time for delivery was extended.
8. In the proposed amendment the plaintiff alleged that time for delivery was extended till a reasonable time after 24 July 1957 which was a period of three weeks from 24 July that is to say, 16 August 1957 in the facts and circumstances of the case. In paragraph 20 (a) of the plaint the proposed amendment was that the defendant by letter dated 24 July 1957 acknowledged its liability to deliver the balance quantity of goods and also acknowledged that time for delivery and/or performance had not expired. The other proposed amendments sought forare in paragraphs 9, 12 and 20 of the plaint.
9. At the trial it appears from thejudgment, counsel appearing for the plaintiff stated that on the basis of the plaint the claim was time barred and counsel further invited the attention of the court to the fact that the plaintiff had sought to amend the plaint by pleading acknowledgment but the application for amendment was dismissed and in view of these facts counsel conceded that he could not proceed with the suit as on the face of the plaint the suit ought to be dismissed for limitation.
10. Counsel for the respondent contended that the dismissal of the application for amendment left the plaint in a form that disclosed no cause of action and that it was barred by limitation. Counsel for the respondent emphasized on the statement of counsel before the court on 7 February 1966 that counsel could not proceed with the suit by reason of the dismissal of the application for amendment and contended that all that happened at the trial on 7 February 1966 was that the plaintiff did not proceed with the suit and there was no decision or adjudication of the suit. On that reasoning counsel for the respondent contended that the appellant really appealed against the order of dismissal of the application for amendment but that the trial on 7 February 1966 was not a decision or adjudication on the question of limitation of the claim in the suit.
11. The recent decision of the Supreme Court in Satyadhyan Ghosal v. Smt. Deorajin Debi, : 3SCR590 considered the scope and meaning of Section 105 of the Code of Civil Procedure. The Supreme Court said that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. This decision is an authority for the proposition that though an appeal could have been taken from the order refusing the application for amendment on the ground of limitation yet the question could be agitated in appeal from the decree inasmuch as the order affects the decision from which an appeal has been preferred. The Supreme Court referred to the decision of the Judicial Committee in Maharajah Moheshur Singh v. Bengal Government, (1859) 7 Moo Ind App. 283 where the Judicial Committee said that it would be the duty of the court to correct erroneous interlocutory orders though not brought under their consideration until the whole cause had been decided and brought by appeal for adjudication.
12. I am therefore of opinion that It is open to the appellants to contend thatthe amendment should have been allowed.
13. With regard to the proposedamendments I shall deal first with theproposed amendments in paragraph 20(a) of the plaint That part of the amendment is dealt with in paragraph 21 ofthe petition verified by an affidavit ofthe plaintiff affirmed on 29 July 1965appearing at pages 23 to 30 of the paper-book. In paragraph 21 of that petitionthe plaintiff alleged about the letterdated 24 July 1957 in support of the proposed amendments. The defendant inthe affidavit of Swaraj Paul affirmed on16 August 1965 at pages 40 to 48 of thepaper-book denied in paragraph 20 thatany letter dated 24 July 1957 was written by or on behalf of the defendant asalleged or at all. The deponent furtheralleged that no letter alleged to be dated24 July 1957 had been disclosed by theplaintiff in the affidavit of documentsand further that no such alleged letterhad been relied on by the plaintiff atany earlier stage. The deponent furtherdenied and disputed the genuineness ofthe alleged letter dated 24 July 1957, Theplaintiff dealt with the defendant's allegations in an affidavit affirmed byDevendra Kumar Somani on 24 August1965 which will appear at pages 49 to54 of the paper-book. The deponentDevendra Kumar Somani in paragraph20 of the affidavit denied that the letterwhich was dated 24 July 1957 was analleged one and stated that it was agenuine letter. It is significant that theletter dated 24 July 1957 was not annexed to the petition and even when thedefendant denied the existence of theletter no copy of the letter was annexedto the affidavit and the original was notproduced at the hearing of the application. Counsel for the respondent in myview, rightly contended that the application for amendment was not a matterof right but the petitioner had to allegefacts. One of the grounds taken in theappeal is that the learned judge shouldhave held that the application for amendment was made bona fide. Counsel forthe respondent rightly contended that theproposed amendment with regard to theacknowledgement of liability by the alleged letter dated 24 July 1957 suffersnot only from the vice of mala fide butalso from the infirmity of suppressingthe same from the court. The plaintifffailed to establish the claim for amendment based on the letter dated 24 July1957. In my opinion the learned judgecorrectly disallowed the proposed amendment with regard to paragraph 20 (a) ofthe plaint.
14. Counsel for the appellant contended that the proposed amendment with regard to extension of time was really perfecting the plaintiff's claim in view ofthe fart that extension had already been pleaded and all that the plaintiff did was to Rive the relevant dates up to which there was extension. Counsel for the respondent submitted on the other hand that the plaintiff pleaded in the plaint that the reasonable time till which the plaintiff waited was 6 July 1957 and that the plaintiff was now making an inconsistent or a new case by pleading the alleged extension up to 15 August 1957.
15. Counsel for the appellant relied on the recent decision of the Supreme Court in the case of A.K Gupta and Sons Ltd. v. Damodar Valley Corporation. : 1SCR796 as also the earlier decision of the Supreme Court in the case of Leach and Co. v. Jardine Skinner and Co. : 1SCR438 and another decision of the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil : 1SCR595 in support of the proposition that the plaintiff was not making a new case but that the plaintiff was merely perfecting the cause of action. The Supreme Court in the Damodar Valley Corporation case. : 1SCR796 observed that the expression 'cause of action' could mean a new claim made on a new basis constituted by new facts. In the Damodar Valley Corporation case, : 1SCR796 the plaintiff asked for recovery of certain moneys lor different categories of work. The only dispute between the parties was whether the plaintiff was entitled to the whole amount of increase in accordance with the provisions of the contract or not. At the trial a question arose as to whether the suit was maintainable in view of Section 42 of the Specific Relief Act because the plaintiff claimed a declaration that on a proper interpretation of the clause in the contract the plaintiff was entitled to enhancement of 20% over the tendered rates. The plaintiff after the decision of the High Court at Patna sought leave to amend the plaint by adding an extra relief asking for a decree for Rs. 65,000/-. That application for amendment was the subject-matter of the decision of the Supreme Court. The Supreme Court observed: 'The amendment seeks to introduce a claim based on the same cause of action, that is, same contract It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction.'
16. In the earlier decisions of the Supreme Court namely in the case of Leach and Co.. : 1SCR438 , the suit was for damages on the footing of conversion. The court cameto the conclusion that the suit must fail on that basis. Thereafter amendment was sought for asking for damages for non-delivery. The Supreme Court held that the prayer in the plaint claimed damages and all allegations which were necessary for sustaining the claim for damages were in the plaint and further that Clause 14 of the contract on which the claim for damages was founded could not be said to be foreign to the scope of this suit. Counsel for the appellant relied on the decision in : 1SCR438 in support of the proposition that if without amendment a suit based on conversion was bound to fail for want of cause of action and the amendment was allowed on the ratio that the transaction on which the plaintiff in that case claimed damages really equated to the scope of the suit there was nothing foreign in the amendment asked for. Extracting that proposition counsel for the appellant contended that in the present case the pleading of extension having been there, any amendment would be in furtherance of the cause of action which was already there and would be within the scope of the suit.
17. The decision of the Supreme Court in the case of Pirgonda Hongonda Patil : 1SCR595 related to amendments being introduced in aid of the ownership of the plaintiff in that case. There were no particular averments in the plaint as to the facts or grounds on which the plaintiff based his title. The amendment was allowed by holding that it did not really introduce a new case but that the amendment was necessary for the purpose of determining the real questions in controversy between the parties.
18. In the present case the proposed) amendments with regard to paragraphs 9, 12 and 20 cannot in the light of the principles stated above be said to be a new case or an inconsistent case for the obvious reason that the proposed amendments are really amplification of the case of extension already pleaded.
19. I am therefore of opinion that the amendments as sought for with regard to paragraphs 9, 12 and 20 of the plaint should be allowed.
20. The proposed amendments should be incorporated within a fortnight from the drawing up of the order. The order will be drawn up forthwith. The amended plaint will be served on the defendant's solicitor within seven days of the incorporation of the amendments. The defendant will have fourteen days' time to file additional written statement thereafter. The parties will have a fortnight thereafter to file their respective affidavits of documents. Inspection will be made forthwith thereafter. The suitwill be brought to hearing immediately thereafter by mentioning in the appropriate court.
21. The order for costs of the trial on 7 February 1966 is not disturbed but the decree is set aside. The order for costs made by S.P. Mitra J. on 21 September 1965 is also not disturbed.
22. The defendant will have costs of additional written statement and of additional discovery. The defendant will have costs of this appeal.
23. The appeal is allowed and disposed as above.
S.K. Mukherjea, J.
24. I agree.