M/S. Container Movement (Bombay) ... vs M/S. Capital Cargo & Container ...
2000 Latest Caselaw 348 Del

ORDER

Vikramajit Sen, J.

1. The present application is for the amendment of the plaint filed under the summary procedure contained in Order xxxvII of the Code of Civil Procedure, 1908. It has come at an awkward stage of the litigation, inasmuch as the Defendant has filed its application seeking Leave to Defend the suit. The Plaintiff prays that the amendment application should be disposed off forthwith but the Defendant has pressed that since his application is anterior in time, it should be considered first. The Defendant has also maintained that the plaint cannot be amended as this procedure is beyond the contemplation of Order xxxvII. Learned Senior Counsel appearing for the parties have invited the Courts decision on this interesting question and have jointly submitted that the two applications, on merits, be taken up later.

2. In Suit No. 1811/89 entitled Shri Prakash Sharma Vs. D.D.A. & Ors., I had, on 3.3.2000, permitted the Petitioner to amend his Objections filed under Sections 30 and 33 of the Arbitration Act, 1940, well beyond the stipulated period of limitation, that is, thirty days. It was my view that the law relating to amendments of pleadings no doubt encourages to adoption of a liberal approach by the Court. Amendments have always been allowed unless it places the opposite party in a position where it cannot be adequately compensated by costs or where it is an attempt to introduce a new case. Learned counsel for the Petitioner has cited a number of precedents, on this issue, but I intend to consider here only those which contemplate situations where the amendment is sought for after the period of limitation has run out. A learned Single Judge of this Court has followed the ratio of L.J. Leach & Co. Ltd. & Anr. Vs. Messrs, Jardine Skinner & Co., and has affirmed in Kartar Singh Vs. Sir Sobha Singh & Sons, 1974 Rajdhani Law Reporter 491 that there is no impregnable barrier in allowing an amendment even post expiry of the period of limitation. In L.J. Leach's case (supra) the amendment was allowed because justice of the case required it, and the following views were expressed :

"It is no doubt true that Courts would, as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. In Charan Das Vs. Amir Khan, 47 Ind App 255 : (AIR 1921 P.C. 50) (A) the Privy Council observed :

"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case."

3. Although the question of limitation would not arise in the present instance since the amendment is not intended to be made to the application for Leave to Defend the summary suit, this problem had also been considered. After perusing the decisions in Allahabad Law Journal Co. Ltd. Vs. M/s. Skyways Construction Corporation & Ors., , Bhoganadham Seshaiah Vs. Budhi Veerabhadrayya (died) & Ors., . Ram Saran Vs. Misrilal, 1984 Rajdhani Law Reporter 149, M/s. Bashista Bros. Vs. Munshi Lal Om Parkash, 1973 Rajdhani Law Reporter 549, Shiv Singh Vs. NPCC Ltd., 1998 VI AD (Delhi)., V.K. Dewan & Co. Vs. MCD & Anr., , UOI Vs. Vijay Construction AIR 1981 Delhi 193, Executive Engineer, Rural Engineering Division Puri Vs. M/s. Construction India, , Government of Andhra Pradesh Vs. Durgaram Prasad, , I had allowed amendments to be carried out even to the timebound Objections, after limitation had expired. In my view, therefore, there is no legal impediment in even permitting amendments to the application for Leave to Defendant after the expiry of limitation.

4. The following passage from the decision in Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Garegoan, succinctly encapsulates the recommended approach that the Court should adopt in disposing of applications for amendment :

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always give leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

5. The following passages from the decision of the Supreme Court in Pasupuleti Venkateswarlu Vs. The Motor & General Traders, are extremely relevant :

"The first amendment sought to be made by the tenant is with regard to an event which allegedly took place subsequent to his application for leave to contest. It is well settled that while deciding a matter the Court should as far as possible take into consideration subsequent events so as to do full justice to the parties. The following observations of the Supreme Court in Pasupuleti Venkateswarlu Vs. The Motor & General Traders, , are very pertinent in this context :

"First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief of the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power, the power exists, absent other special circumstances repelling resort to that course in law or justice."

6. If amendments to time bound pleadings can be carried out, a fortiori, much more latitude should be given where no such hurdles are in the pathway. Apart from perfunctory formalities, no other procedural straitjacket exists vis-a-vis plaints under Order xxxvII. The purpose of requiring the Defendant to apply for Leave to Defend is meaningless unless it is to be holistically considered in the context of an answer to the case made out in the plaint. If shortcomings in the form and substance of the plaint are not permitted to be corrected it may have the effect of allowing a party Leave to Defend a suit, which would not be otherwise warranted on merits. This would definitely defeat the very purposes of creating a different category of suits, calling for expeditious and special consideration, under the summary procedure. Mr. V.K. Makhija, learned Senior counsel for the Defendant has submitted that Order xxxvII is a complete Code in itself, embodying all the various stages prior to grant of 'leave'. It is his submission that once an application seeking Leave to Defend has been filed this Order only contemplates the grant or rejection of that permission. He has further argued that the moment an application for amendment to the Plaint is made, it is tantamount to conceding that a defense has been made out. I am unable to agree.

7. Order xxxvII does not state that suits falling within its contemplation are beyond the purview and application of other provisions of the Code. Order VI applies to all pleadings generally and I am unable to find any provision in this Order which states that it would not apply to Summary Suits, or vice versa. Rules of procedure are not intended to be pitfalls, or traps to litigants. In Bishen Sahai Vs. Abdul Sattar, AIR 1930 Lahore 559 it has been held that Order VI Rule 17 extends to Order xxxvII since there is no prohibition to the contrary.

8. Mr. A.S. Chandiok, learned Senior counsel for the Plaintiff, has also drawn my attention to the Supreme Court Practice prevailing in England. This extant procedure only fortifies me in the view that I have taken. The procedure there prescribes that if an objection has been disclosed, leave to amend should be granted and thereafter the court should proceed to rule on the application as amended, subject to questions of costs. It also contemplates that if amendment is sought after Summons for Judgment have been issued, fresh summons should be issued after the amendment is carried out.

9. In conclusion, therefore, I am of the opinion that if an amendment is sought to a plaint filed under Order xxxvII it can and should be considered prior to the disposal of the application seeking Leave to Defend. Otherwise a miscarriage of justice is likely to occur. This would also apply to cases where a fatal objection has been disclosed by the Defendant. In this case the nature of the Objection may well be a ground for rejecting the amendment. Re-notify I.A. 6007/96 for final disposal on 4th April, 2000.