B.C. Ray, J.
1. This Rule arises out of an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 35 dated December 17, 1975 passed in Title Suit No. 93 of 1973 by the Subordinate Judge 3rd Court, Alipore, rejecting the defendant/ petitioner's application for amendment of the written statement.
2. The plaintiff opposite party which is a statutory body set up under the West Bengal Act 19 of 1959 instituted Title Suit No. 93 of 1973 in the Third Court of Subordinate Judge at Alipore, stating inter alia, that the defendant Bivas Private Limited which had long experience of providing the markets for the filter papers, with a view to promoting the qualities of the goods, was appointed as the selling Agent for the sale of goods to be produced at Kalyani Unit and Das-ghara unit. In terms of the said agency the defendant used to take delivery of goods and sell them in the market and used to make payment to the plaintiff from time to time. The price of the goods was at first fixed at Rs. 12-0- per Kg. But subsequently, as the cost of production increased the plaintiff too increased the price from Rs. 12/- to Rs. 20/- per Kg. and the same was duly communicated to the defendant by letter dated 16th of January, 1970. To this letter the defendant did not send any reply. Thereafter the plaintiff sent a statement of account to the defendant and requested to pay a sum of Rs. 47,361.90 which remained due from the defendant. It was alleged that on 15th of November, 1971 the defendant repudiated the agency by their letter. The plaintiff thereafter issued a notice through their lawyer demanding payment of the aforesaid sum due to them, but no reply was received from the defendant and hence the suit was filed for a decree for recovery of the sum of Rs. 47,361.80 and for other ancillary reliefs .
3. The defendant on 25th February. 1974 filed a written statement. In paragraph 10 (c) of the said written statement it has been stated as follows:
'This illegal arbitrary and wrongful increase in price was made by the plaintiffs without prior reference to the defendant and even before............ the sole selling Agent.'
In paragraph 10 (d) of the said written statement it has been stated that it was settled that in consideration of the technical know-how, supplied by the defendants and the investments made by them the defendants would be the sole selling Agent for five years. In paragraph 13 of the written statement it has been stated that the defendant did not repudiate the agreement by their letter dated 15-11-71 or on any date. In paragraph 15 of the written statement it has been stated that as the repudiation of the agency by the plaintiffs is unilateral, illegal and mala fide the plaintiffs are not entitled to get any relief.
4. Thereafter issues were framed and the suit was fixed for hearing peremptorily on 19th November, 1975 On that date an application for amendment of the written statement was filed by the defendant seeking to amend the statements made in paragraph 10 (c) by inserting the following words after the words 'the sole selling Agent', 'as proposed and assured although the plaintiff put off approval and execution of the said agreement of agency.' and in para. 10 (d) also the defendant also wanted to insert the following words after the words 'interest of the defendants.' An objection was filed by the plaintiff submitting that the amendment, if allowed, will have the effect of taking away the legal right already accrued to them and will render the admission made by the defendant nugatory.
5. On December 17, 1975 the Subordinate Judge, Third Court, Alipore, after hearing the parties rejected the said application for amendment holding that in paragraph 10 (c) of the written statement the agreement of agency was admitted and by the proposed amendment the defendant wanted to do away with the admission. It was further held that the defendant could not make out a new case or even a contradictory case by way of amendment. Moreover the proposed amendment aimed at destroying the admission already made by the party. As such the same was rejected. It is against this order this revisional application was moved in this Court and the instant Rule was issued.
6. Mr. R. P. Bagchi, learned Advocate appearing on behalf of the petitioner has submitted that there was no new case made out by the proposed amendment nor the proposed amendment had the effect of changing the nature and character of the suit and as such the same should have been allowed by the learned Subordinate Judge. Mr. Bagchi further submitted that there was no agreement of sole selling agency to be entered into between the petitioner and the opposite party and in the written statement the admission about the defendant being the sole selling agent was made inadvertently inasmuch as in fact the defendant has not been appointed the sole selling agent of the products of the plaintiff, as the agreement had not been finalised between the parties. It has, therefore, been submitted that the proposed amendment ought to have been allowed by the Court below as the same was necessary for the proper adjudication of the case and the same will not cause any injustice on the other, side.
7. Mr. A. K. Motilal, learned Advocate appearing on behalf of the opposite party, has on the other hand submitted that the suit was filed on the basis of the agency agreement and the relief sought for was for a decree for the goods supplied to the defendant who was the sole selling agent of the plaintiff's products. Article 3 of the Lim. Act governs such suit and the period of limitation is three years. As the defendant by their letter issued in 1971 repudiated the selling agency agreement, this action has been brought and as such the suit was within the period of limitation. He further submitted that the defendant in their written statement admitted the contract of selling agency between the defendant and the plaintiff and by the proposed amendment a new case was sought to be made out by pleading that there was no agreement of sole selling agency between the plaintiff and the defendant. Thus the proposed amendment, according to Mr. Motilal will seriously prejudice the plaintiff and will create such injustice on the plaintiff inasmuch as the same if allowed, will render the suit as one barred by limitation, as it will be a suit only for recovery of price of the goods sold and delivery to the defendant. Moreover, the said amendment, if allowed, will destroy the effect of the admission that has been made by the defendant in their written statement and will seriously prejudice the plaintiff. Mr. Motilal has, therefore, submitted that this amendment should not be allowed. In support of his commission Mr. Motilal has cited the decision reported in Shaikh Masthan Sahib v. Palayani Balarami Reddi, : AIR1953Mad958 A.K. Gupta & Sons v. Damodar Valley Corporation, : 1SCR796 and L.J. Leech & Co. Ltd. v. Jardine Skinner & Co., : 1SCR438 .
8. It appears on a reading of the written statement that the defendant in paragraph 10 (c) and (d) admitted that the defendant was appointed the sole selling agent of the products of the plaintiff, From paragraphs 13 and is of the written statement also it appears that the defendant admitted that the agency agreement existed and it was repudiated unilaterally by the plaintiff. The proposed amendment clearly aims at setting out a case that the plaintiff avoided and failed to approve and execute the said agreement of agency. Thus the proposed amendment completely aims at denying the relationship of plaintiff and the defendant as principal and agent which the defendant admitted in their original written statement.
9. In that view of the matter, it appears to us quite clear that by the proposed amendment the defendant tries to make out a new claim and to set up a new case than what was made in the earlier written statement. Moreover, by this proposed amendment the defendant is attempting to negative the admission that they were the sole selling agents of the products of the plaintiff.
10. In : AIR1953Mad958 (Shaikh Masthan Sahib v. Palayanl Balarami Reddi), it has been held that where by the proposed amendment the respondent sought to negate his own admission in the written statement, it should not be allowed.
11. In : 1SCR796 (A.K. Gupta & Sons v. Damodar Valley Corporation) it has been held that a party is not allowed by amendment to set up a new case or a new cause of action, particularly when a suit on the new case or cause of action is barred.
12. For the reasons aforesaid the contentions raised on behalf of the petitioner fail. The Rule is therefore discharged. There will be no order as to costs. Let the records go down as soon as possible.
N. C. Mukherji, J.
13. I agree.