Union Of India (Uoi) vs Rajkumar Agarwal
2006 Latest Caselaw 930 Bom

JUDGMENT

V.R. Kingaonkar, J.

1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. This petition is preferred against order passed by the II Addl. District Judge, Jalgaon whereby the petitioner's application (Exh. 71) for amendment of plaint in suit bearing Special Civil Suit No. 373 of 1997 came to be rejected with costs of Rs. 100/-.

3. The petitioner filed suit for recovery of damages and compensation to the tune of Rs. 95,56,9727- against the respondent for breach of contract. Admittedly, the respondent/defendant agreed to transport a transformer from Burhanpur to Deepnagar Grid Sub Station, Bhusawal. The transformer was mounted on a trailer bearing No. MWU-1990 by the respondent on 25th October, 1994. The trailer had moved up to a distance of about 500 metres from the Sub Station of Burhanpur. Allegedly, due to negligence and sheer carelessness of respondent/defendant, the transformer slipped from the trailer and got heavily damaged. The defendant had executed an indemnity bond to indemnify any loss, shortages and damages caused to the said transformer. The carriage contract was breached and hence the suit for recovery of the value of the transformer and other overhead charges etc. came to be filed.

4. The petitioner submitted an application for amendment on the ground that during pendency of the suit, the transformer was repaired since it was to be commissioned for use without delay. For carrying out the repair works and other incidental expenditure incurred, as mentioned in Schedule-A, the claim for Rs. 57,79,2947- was to be laid by way of amendment. Thus, the petitioner sought reduction of the claim from the earlier amount of Rs. 95,56,972/- to Rs. 57,79,294/- by way of such amendment. The amendment application was opposed by the defendant by filing his-reply. According to the defendant, the proposed amendment was sought in order to introduce a time barred claim. It was contended that the repairs of the transformer were carried out on or prior to 12th July, 2001. The amount could have been claimed within a period of three years thereafter. Yet the application was moved on 24-10-2005 and by that time such claim had become barred by limitation. Another objection raised by the defendant was that the cause of action for the amendment was of different nature than the cause of action for the suit. Hence the amendment could not be permitted. The defendant sought, therefore, dismissal of the application.

5. The learned Addl. District Judge heard both the sides and observed that the transformer was put into operation on 17-7-2001 and as such, the amendment application was impermissible since a time barred claim was sought to be put forth. The learned Addl. District Judge further came to the conclusion that the proposed amendment would cause injustice to the defendant and was unnecessary so as to determine the controversial questions. Further, it was observed that the plaintiff wanted to set up a new case based on new cause of action by way of amendment and as such, the application could not be considered. Hence, the application seeking leave to amend the plaint was rejected.

6. Heard leaned Counsel for the parties. It is strenuously argued by learned Counsel Shri Navandar that the amendment was sought in order to clarify the subsequent developments. The learned Counsel would submit that the entire approach of the trial Court is erroneous. The learned Counsel Shri Navandar further submitted that the original cause of action could be availed even for the claim to recover the repairing charges and other incidental charges. He relied upon various authorities in support of his contention. On the other hand, learned Counsel Shri S.V. Gangapurwala supported the impugned order.

7. At the threshold it may be mentioned that the suit was filed on the cause of action pursuant to liability of the defendant as a carrier. The defendant was under obligation, as per terms of the carriage contract, to safely reach the transformer in question from the place it was loaded up to the place where it was to be unloaded. The failure of the defendant to take adequate precautions and care is the genesis of the claim for damages and compensation. Had the transformer not been damaged due to mishandling thereof, the plaintiff would not have the occasion to get it repaired for making it operational. The plaintiff was not supposed to keep the transformer idle and expose to rusting process so that it could turn out only as a scrap after passage of couple of years. The plaintiff got the transformer repaired with bona fide intention that it could be made operational during pendency of the suit. The change in the claim as a result of the subsequent developments could not be regarded as a separate claim. The same cause of action, namely, the alleged breach of contract continued to be the source of cause of action for the amended claim. The amendment was not based on any separate cause of action. The trial Court was in error while holding that the proposed amendment was based on another cause of action.

8. The proposed amendment could not be disassociated from the original claim which is based on the same contract between the parties. Admittedly, there was no other contract except that of the undertaking of the defendant to transport the transformer from Burhanpur to Bhusawal. The defendant is required to explain as to what kind of sufficient care and precaution was taken by him for the purpose of safe carriage of the transformer. The suit filed on the basis of the cause of action arising out of breach of carriage contract cannot be regarded as a totally separate suit from the suit for claim for recovery of the repairing charges and other incidental overhead charges. The quantification of appropriate amount to which the defendant is liable to pay and his legal liability are distinct issues which may be determined after full dressed trial. The trial Court can take cognizance of the developments which occur during pendency of the suit and amendment can be permitted when such subsequent developments require adjudication of certain issues in the same suit. I am of the opinion that the learned trial Court has summarily rejected the contentions of the plaintiff without adequate and substantial reasons.

9. In case of "A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation" , which is relied upon by the trial Court, it is explained that where the amendment does not constitute a new cause of action but amounts merely to a different or additional approach to the same facts, the amendment shall be allowed even after expiry of the statutory period of limitation. The Apex Court has observed that when the suit was filed on basis of terms of contract, which gave rise to the cause of action then the amendment which sought to introduce a claim based on the same contract cannot be regarded as a claim based on some new cause of action. The Apex Court further observed that such amendment would not prejudicially affect rights of the defendant under the law. Even so, without considering the text of the entire judgment, the learned trial Court rejected the application merely by peripheral reading of a couple of sentences here and there. The impugned order is perfunctory and illogical.

10. In case of "Purushottam alias Nana U. Sanyasi v. A.N. Jog and ors. " 2005(1) Mh.L.J. 426 : 2005(2) All MR 379 Single Bench of this Court has observed that ordinarily the amendment which is necessary to decide real question in controversy is required to be allowed. Similarly, in Quality Polly Closures v. Executive Engineer, M.S.E.B., Satara 2000(4) Mh.L.J. 203 another Single Bench of this Court held that liberal approach should be the general rule while considering the request for amendment of the pleadings. It is observed that technicalities of law should not be permitted to hamper the course in administration of justice. So, mere delay could not be a sufficient ground to reject the amendment application.

11. The learned Counsel Shri Navandar further relied upon "Pankaja and Anr. v. Yellappa (Dead)By L.Rs. and Ors." wherein the Apex Court has observed that it is always open to the Court to allow the application for amendment of the pleadings in spite of the delay and laches in moving such an application. It is observed :

The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

12. Further, learned Counsel Shri Navandar, in support of his contention, placed strong reliance on "Rajesh Kumar Aggarwal and ors. v. K.K. Modi and ors. " 2006(4) Mh.L.J. (SC) 719 : 2006 AIR SCW 1538. The Apex Court has held that the object of Rule 17 of Order VI of the Code of Civil Procedure is that the Courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. The Apex Court has further observed :

In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

13. As against the aforementioned arguments of the learned Counsel for petitioner, learned Counsel Shri Gangapurwala for respondent contended that the fact about repairs of the transformer was well known to the plaintiff and as such, the amendment could have been introduced within a reasonable time. He argued that the amendment is likely to prejudice rights of the defendant. He relied upon "Radhika Devi v. Bajrangi Singh and Ors." , "T.L. Muddukrishana v. Lalitha Ramchandra Rao" . The facts of these cases were quite different. The case of "Radhika Devi" related to a suit in which partition was claimed and defendant had specifically pleaded about a gift deed executed by the deceased. Clearly after lapse of limitation period an amendment was sought by the plaintiff for declaratory relief to the effect that the gift deed was obtained illegally and fraudulently. Therefore, it was held that such time barred claim could not be introduced by way of amendment. In case of "Purushottam" (supra) the Court found that the amendment was sought with an intention to defeat the rights which had already accrued in favour of other side. In the present case, no rights have been accrued in favour of the defendant. The rights are yet uncrystallized. The hearing of the suit is yet to begin. Under these circumstances, I find it difficult to hold that any new claim was introduced by the plaintiff. It is also difficult to say that the subsequent claim was barred by limitation inasmuch as the cause of action remained the same and the amendment is sought to be introduced only because the damaged transformer was repaired and was made operational during pendency of the suit. The law of contract does not say that such a property shall be kept as it is and status-quo shall be maintained notwithstanding the deterioration of the property.

14. The Court should make all endeavours to avoid multiplicity of litigation and protraction of the trial in a suit. The purpose of allowing amendment is to set at rest the controversy in the same suit. The intention of the legislature in framing Rule 17 of Order VI of the Civil Procedure Code is to encompass the subsequent events, if they can be connected with the original cause of action, and to permit the amendment of pleadings for effective adjudication of all controversial issues in the trial of same litigation. The learned Addl. District Judge has failed to consider the very purpose of the provisions contained in Order VI, Rule 17 of the Code of Civil Procedure and as such wrong approach is adopted while rejecting the application. In my opinion, the trial Court has committed error while rejecting the application for amendment and the impugned order would cause injustice to the plaintiff. No prejudice is likely to be caused to the defendant if the amendment is allowed. Needless to say, the impugned order is quite unsustainable and as such liable to be quashed.

15. In the result, the petition is allowed and the impugned order is quashed. The amendment application is allowed and the plaintiff is directed to carry out the amendment within two (2) weeks after receipt of this order by the trial Court. The trial Court shall frame additional issues after the additional statement, if any, is submitted by the defendant. Rule made absolute in above terms. No costs.