Surnedar Kumar Gupta And Ors. vs H.L. Sehgal
1986 Latest Caselaw 118 Del

JUDGMENT

G.C. Jaia, J.

(1) This is a revision petition under Section 115 of the Code of Civil Procedure. The petitioners herein are defendants in a suit which was filed by the respondent H. L. Sehgal ai Karta of M/s. Sehgal Industrial Works on January 17, 1975 for recovery of Rs. 13.000.00 .

(2) According to the allegations in the plaint, the plaintiff secured an order for the supply of 100 monkey cages from M/s Vita Private Ltd. Delhi. He entered into an agreement with the petitioners/defendants for the manufacture of thoic cages. Under the arrangement the plaintiff, inter alia, was to supply machines lying with him required for the manufacture of the cages. The machines of the value of Rs.24,000.00 were duly supplied. Before the work could be completed some disputes arose between the parties and ultimately it was settled that the defendants would supply him 100 cages at the rate of Rs. 295.00 per cage. Out of 100 cages 11 bad already been supplied and rest were to be supplied by specified dates The machines alleged to have been supplied by the plaintiff were to be returned back on the completion of the work. The defendants allegedly committed breach of this agreement resulting into a claim for damages etc amounting to Rs. 17.376.00 out of which the plaintiff gave up Rs. 4.376.00 and claimed only Rs. 13.000.00 .

(3) During the pendency of this suit the plaintiff, it appears, filed separate suits for the return of machines and/or recovery of damages for the use of those machines by the defendants which suits Were dismissed being barred by the provisions contained in Order 2 Rule 2, Code of Civil Procedure.

(4) On December 19, 1984 the plaintiff filed an application under Older 6 Rule 17 read with Section 151, Code of Civil Procedure seeking amendment of the plaint. Byway of amendment be wanted to add additional relief namely (i) a decree for the return of the machines in the original working condition or in the alternative a decree for Rs. 24.000.00 i e. the value thereof and (ii) decree for damages at the rate of Rs 2000.00 per month besides interest at the rate of 20% compounded quarterly till the machines were returned to him. It was averred that he was advised by his counsel that he could claim damages without even claiming back the machines His other counsel never advised him to file the claim for the return of machines when the suit was filed. He, therefore, in good faith and due diligence filed subsequent suits for this relief which were dismissed under Order 2 Rule 2, C. P C. and hence the application for amendment.

(5) This application was opposed. It was averred that the claim for return of machines or the price thereof had since become barred by time, therefore the amendment could not be allowed.

(6) Learned Addl. District Judge holding that no malafides had been imputed to the plaintiff, that a party could not be refused just relief merely because of some mistake, negligence, inadvertance or infraction of the rules of procedure, and that by this amendment the plaintiff sought to add additional claim based on same cause of action and was not introducing any new case or new facts, allowed the amendment as prayed on payment of Rs. 500.00 as costs.

(7) Feeling aggrieved the defendants have filed the present revision petition.

(8) It is well established rule that "however negligent or careless the first omission may have been, and however late the proposed amendment, the amendment may be allowed, if it can be made without injustice to the other side." One of the classes of cases in which an amendment may work injustice to the opposite party is where it takes away from a party a right accrued to him by lapse of time. As a rule, therefore, the plaintiff will not be allowed to amend his plaint by introducing a. new cause of action which since the date of the plaint has become barred by the statute of limitation. This rule, however, is not a universal one. In peculiar and special circumstances, an amendment may be allowed even where it has the effect of depriving the defendant of his right to plead limitation.

(9) The claim for the return of machines or its value amounting to Rs. 24.000.00 and damages for not returning the machines, without any doubt, has become barred by time. The question for determination, therefore, is whether the plaintiff had made out a special circumstance for allowing this amendment. The special circumstance in this case, as found by the learned Addl. District Judge, and in my view rightly, is that the plaintiff is not introducing any new cause of action. All the facts constituting the cause of action for the additional claim, sought to be introduced by way of amendment, already existed in the plaint as originally filed.

(10) In A. K, Gupta & Sons v. Damodar Valley Corporation, , the plaintiff had filed a suit claiming a decree for declaration that on proper interpretation of the clause in the contract he was entitled to enhancement of 10ø/o over the tendered rates as the sole difference between the parties was about the interpretation of that clause. Later on. he sought the leave of the court to amend the plaint by adding an extra relief, namely, a decree for Rs. 65.000.00 or such other amount which may be found due on proper account being taken. By that time this relief had become barred by time. Still the amendment was allowed. It was observed that this amendment did not introduce a new cause of action. The claim was based on the same cause of action, i. e. the same contract. It introduced no new case or facts.

(11) This decision fully applied to the facts of the present case. Here also, the additional claim sought to be introduced by way of amendment is based on the facts already pleaded. No new case is being made out.

(12) In Harcharan v. State ofHaryana, , the appellant sought amendment of memo of appeal seeking higher compensation It was rejected by the Punjab & Haryana High Court on the ground that the application had been filed after the lapse of six years of the filing of the regular first appeal. Observing that the appellant sought amendment relying upon the decisions of the High Court itself which provided a comparable yardstick in effectively disposing of real controversy before the High Court, the amendment was allowed The present case, in my view, stands on a better footing because here the additional claim is based on the facts already pleaded.

(13) In the presence of these decisions of the Supreme Court, the contention of the learned counsel for the petitioners that no special circumstances had been made out cannot be accepted.

(14) For all these reasons, in my view, the discretion has been correctly exercised by the learned Addl. District Judge and calls for no interference in revision. I consequently dismiss the petition. Parties are, however, left to bear their own costs.