M/S. Bajaj Auto Limited vs Vikram Singh Mehta & Anr.
2001 Latest Caselaw 417 Del

ORDER

Devinder Gupta, J.

1. Whether or not learned Single Judge in the impugned order passed on 19.12.2000 has correctly exercised discretion by allowing plaintiffs/respondents to amend the plaint. This is the short question arising for determination in this appeal preferred by the defendant.

2. On 12.11.1997 plaintiffs filed a suit against the defendant claiming a decree for possession of property known as No.7/25, Nazafgrah Road, Industrial Area, Kirti Nagar, New Delhi and for recovery of Rs.6 lakhs towards arrears of damages @ Rs.2 lakhs per month w.e.f. 12.8.1997 and for future damages @Rs.2 lakhs per month from the date of institution of the suit till delivery of possession along with the interest on damages @ [email protected] with effect from the date of the institution of the suit.

3. The suit was instituted alleging that the defendant was inducted on the land as a lessee through agreement dated 12.1.1965 on a monthly rental of Rs.3,850/-. Lease initially was for a period of three years which expired by afflux of time on 11.11.1968. Defendant, however, continued to occupy premises as a tenant from month to month on same terms and conditions. No fresh lease was executed or created in favor of defendant after 1968. Though there was no necessity to terminate the lease which had expired by afflux of time, a notice was served on 28.4.1991 terminating tenancy of defended. Status of defendant was that of a statutory tenant after expiry of tenancy by afflux of time and became as an unauthorised a occupant after termination of lease. There fore, defendant was liable to pay damages @ Rs.1 lakh per month. Defendant failed to vacate premises. Another notice dated 8.8.1997 was served on the defendant once again calling upon him defendant to vacate premises and pay past arrears of damages @ Rs.1 lakh per month and further to pay damages @ Rs.2 lakhs per month w.e.f. 12.8.1997. Request made through this notice was also not complied with. Therefore, suit was filed for the aforementioned reliefs stating that cause of action had arisen to the plaintiffs against defendant on 12.11.1965 when the property was let out; on expiry of three years when the leases expired by afflux of time; on 29.4.1991 and 5.8.1997 when notices were served upon the defendant.

4. Suit was contested by the defendant by filing written statement. Suit had not gone for trial yet since issues were not framed.

5. It appears that in order to meet and overcome the objection about legality and validity of the notice served upon the defendant to vacate premises and of the defendant's act of having made payment to the Municipal Corporation of Delhi towards the plaintiff's liability which the defendant claimed had been paid towards liability of rent, the plaintiffs got served another notice dated 9.5.1999 on the defendant reiterating their stand that the defendant was no longer a tenant since tenancy had already come to an end or in any case had validly been terminated but without prejudice tenancy was again being terminated with effect from the expiration of the month of May,1999. After serving this notice the plaintiffs filed an application seeking this amendment to the plaint, inter alia, to add para 8-A to the plaint as follows:-

"That without prejudice to the earlier Quite Notice and in order to avoid all objections, Quite Notice dated 9.5.1999 was also served. Copy thereof has been filed. Assuming (without admitting) there was any tenancy subsisting at that date, as a result of this Quite Notice, the surviving tenancy if any also stood determined/terminated on the expiry of the period stated.

6. In addition to seeking introduction of para *-A to the plaint some minor consequential amendments in various other paras of the plaint were also sought.

7. This prayer of the plaintiffs to amend the plaint was ultimately opposed by the defendant on the ground that no amendment can be allowed which would cause a serious prejudice to the legal rights of the parties. Allowing amendment would amount to allowing the plaintiffs to introduce a new cause of action and a case and would cause serious prejudice to the defendant.

8. Learned Single Judge by the impugned order allowed the application for amendment, after coming to the conclusion that notice of termination is an essential component for a cause of action in a suit for eviction and that being so the notice dated 9.5.1999 got served by the plaintiffs o n the defendant would give rise to a fresh cause of action and inter alia, consequence thereof would be that the plaintiffs will be in a position to file a fresh suit against the defendant qua the same property pleading fresh notice constituting a fresh cause of action against the defendant. On such conclusions learned Single Judge further observed that as the plaintiffs can be permitted in law to institute a fresh suit there can be no valid reason why the plaintiffs cannot be permitted to amend the suit to plead a fresh notice to avoid multiplicity of proceedings especially when the defendant can be compensated in terms of costs. In addition to imposing costs of Rs.5,000/- amendment was allowed subject to two conditions (i) that the amendment would take effect only from the date the amended application was filed and would not relate back to the institution of suit and (ii) of the plaintiff filling additional court fee which would have been payable if they had to institute a fresh suit against the defendant based on fresh notice to quit.

9. We have heard learned counsel for the parties and have gone through the pleadings.

10. Learned counsel for the defendant/appellant reiterating the same arguments which were addressed before learned single Judge contended that the amendments could not have been allowed which has the effect of permitting the plaintiffs to plead a new cause of action and a new case. It would also cause substantial injury to the defendant/appellant. Learned counsel for the plaintiffs made submissions in support of the order urging that the learned Single Judge had rightly exercised discretion in order to avoid multiplicity of proceedings. Plaintiffs by way of amendment were not seeking an y additional relief or claim but had sought amendment by pleading subsequent event only which was a different approach to the same claim and same relief which had been sought originally in the plaint.

11. The law with respect to amendment to the pleadings is well settled in a catena of decisions. In L.J.Leach and Co, Ltd. and another Vs. Messrs. Jardine Skinner and Co. while allowing amendment of the plaint the Supreme Court observed:-

"It is no doubt true that courts would, as a rule, decline to allow amendment, 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 direction as to whether amendment should be ordered, and does not affect, the power of the Court to order it, if that this required in the interests of justice."

(emphasis supplied.)

12. Plaintiff in that case had claimed damages on the allegation that there was conversion of goods. Findings of the High Court were approved by Supreme Court that on the evidence the claim for damages o n the footing of conversion must fail. Plaintiffs then applied to Supreme Court for amendment of the plaint by raising in the alternative a claim of damages, for breach of contracts, for non delivery of goods. The application was opposed by the defendant and one of the grounds was that period of limitation and expired for laying claim in the alternative for damages. In that context Supreme Court approved the ratio of the decision in Charan Das Vs. Amir khan AIR 1921 PC 50 which had laid down that though there was full power to make the amendment,such a power should not as a rule be exercised where thee effect was to take away from the defendant a legal right which had accrued to him by lapse of time; yet there are cases where such considerations are out-weighed by the special circumstances of the case. The Supreme Court while allowing amendment observed that the power exercise was undoubtedly one within the discretion of the Courts. In that case it was noticed by the Court that all alegations which were necessary for sustaining a claim for damages for breach of contract were already made in the plaint. What was lacking was only the allegation that the plaintiffs in the alternative are entitled to claim damages for breach of contract by the defendant in not delivering the goods. Irrespective of the general proposition amendment was allowed since the Court was of the opinion that justice of the case required that the amendment should be granted.

13. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others while approving what had been held in L.J.L each and Co. case (supra) principles enunciated by Batchelor, J. in his judgment in Kisandas Rupchand Vs. Rachappa Vithoba 33 Bom. 644 were reiterated with approval which are to the following effect:-

"All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in cost by depriving him of a good defense to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"

14. Question before the Supreme Court in P.H.Patil's case (supra) was about the legality and validity of the order of Bombay High Court allowing amendment to the plaint. Objection was raised to the amendment in appeal before Supreme Court by relying upon the following observations of Beaman, J.made in Kisandas Rupchand's case (supra):-

"In my opinion, two simple tests, and two only, need to be applied, on order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? If not, then it follows necessarily that the proposed amendment places the other party at disadvantage. It allows his opponent obtain more from him than he would have been able to obtain but for the amendment. Second, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed."

15. On behalf of the appellant, it was urged that the first test laid down in the observations of Beaman, J. was not fulfillled, namely, could the party asking to amend obtain the same quantity of relief without the amendment. This submission was turned down by the Supreme Court in P.H.Patil's case (supra) holding that it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula and moreover, the expression "Quantity of relief", is somewhat difficult of appreciation or application in all circumstances. Dismissing the appeal it was held that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he had asked for and the said defect was removed by the amendments.The quality and the quantity of the reliefs sought for had remained the same. Therefore, there was no illegality in the grant of discretion since the same was allowable on the principles enunciated by Batchelor, J., quoted aforementioned. Thus the Supreme Court preferred and approved the principles laid down int he observations made by Batchelor,J. and did not approve the observations of Beaman, J. in Kisandas Rupchand's case (supra). In the instant case learned Single Judge by the impugned order has permitted the plaintiffs to amend the plaint so as to rectify a defect which the plaintiffs think ought to be removed in order to enable them to obtain the same relief which they had sought in the plaint. In other words amendment became necessary because of subsequent events, namely, notice of demand by municipal Corporation and the amount deposited by the defendant in response to the said notice with the Municipal Corporation which the defendant claimed was towards rent. It is not disputed that by allowing amendment the quality and quantity of the reliefs sought for by the plaintiffs in the original plaint has remained the same. The question whether ultimately relief should or should not be granted to the plaintiffs would be dependent upon the evidence to be adduced and would be a question to be decided on merits of the case on which we are not called upon to express any opinion at this stage. Allowing such amendment cannot be said to have deprived the defendant of his defense which the defendant has already taken and there is no question of any prejudice being caused to the defendant since it will still be open for the defendant to contest the suit on all grounds available in law. The amendment in terms of the law laid down in P.H.Patil's case (supra) is a different approach to the same relief as sought in the plaint as it stood prior to amendment.

16. The general rule in the matter of allowing amendment of pleadings as approved by the Supreme Court in A.K. Gupta and Sons Ltd. Vs. Damodar Valley Corporation is that a party by amendment is not allowed to set up a new case or a new cause of action particularly when the suit on the new cause of action is barred by limitation. The general rule as approved by Supreme Court was reiteration of the principles laid down in Charan Das Case (supra) and in that context Supreme Court held:-

" The principal reasons that have led to the rule last mentioned are first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v Smith. (1984) 26 Ch D 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba, (1909) 2nd 33 Bom 644 at p.651, approved in Pirgonda Hongonda Patil v.Kalgonda Shidgonda, .

17. Applying the principles as laid down in A.K.Gupta's case (supra) also to the facts of the instant case we hardly need to observe that the amendment does not in any way amounts to the addition of a new cause of action or raising a different case but it amounts to no more than a different or additional approach to the same claim. Plaintiffs in the suit filed on 12.11.1997 had already alleged existence of a lease, same having come to an end by afflux of time or in any case having been terminated by notice, which also is the case even after amendment.

18. In Nair Service Society Ltd. Vs. K.C.Alexander and others after noticing the fixed principle of law that a suit must be tried on the original cause of action except in such cases where there is change n circumstances in which case subsequent events can permitted to be allowed. The Court said:-

"Now it is fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals. Indeed the appeal being a continuation of the suit new pleas are not considered. If circumstances change they can form the subject of some other proceedings but need not ordinarily be considered in the appeal. To this proposition there are a few excerptions. Sometimes it happens that the original relief claimed becomes inappropriate, or the law changes affecting the rights of the parity. In such cases courts a may allow an amendment pleading the changed circumstances. Sometimes also the changed circumstances shorten litigation and then to avoid circuity of action the courts allow an amendment. The practice of the courts is very adequately summarized in Ram Ratan Sahu V. Mohant Sahu, (1907) 6 Cal LJ 74 Mookerjee and Holmwood JJ. have given the kind of changed circumstances which the courts usually take notice, with illustrations from decided cases. The judgment in that case had been consistently followed in India. In Raicharan Mandal v. Biswanath Mandal, AIR 1915 Cal 103 other cases are to be found in which subsequent events were noticed. The same view was taken by the Federal Court in Lachmeshwar Prasad v. Keshwar Lal , at p.6) following the dictum of Hughes C.J. in Patterson v. state of Alabama, (1934) 294 US 600 at p. 607. In Surinder Kumar v.Gian Chand, this court also took subsequent events into account and approved of the case of the Federal Court. In view of these decisions it is hardly necessary to cite further authorities."

19. While approving the order of the High Court allowing the Society to amend its plaint the Supreme Court further observed:-

"Thus it is a question of the delay and laches on the part of the Society. In so far as the court was concerned the amendment would not have unduly prolonged litigation; on the other hand, it would have cut it short. Without the amendment another suit based on the second Kuthakapattom is inevitable. As we have shown above there is good authority in support of the proposition that subsequent events may be taken note of it they tend to reduce litigation. This is not one of those cases in which there is a likelihood of prolonged litigation after remand or in which a new case will begin.The amendment will prima facie allow the society to show to the court that in addition to possession it has also title. This will enable the court to do complete justice, if the plea is found good, without the patties having to go another trial."

20. Learned Single Judge in the instant case after observing that it was a different cause of action which was sought to be pleaded by way of amendment for claiming the same relief on which it would it would be permissible for plaintiffs to file a fresh suit allowed the amendment to be carried out but took extra precaution by imposing a condition on the plaintiffs to pay requisite court fee, which would have been payable for a fresh suit. Of course after the amendment opportunity is available to the defendant to file written statement to the amended plaint and since issues have not yet been framed learned single Judge observed that there was no question of any prejudice being caused to the defendant. Therefore, in our view the exercise of discretion is perfectly justified even on the ratio of Nair Service Society's case(supra).

21. In M/s Ganesh Trading Co. Vs. Moji Ram defective pleadings were held to be generally our able by allowing amendment if the cause of action sought to be brought out was not ab initio completely absent. The court held that even very defective pleadings may be permissible to be cured so as to constitute a case of action where there was none provided necessary conditions such as payment of any additional court fee which may payable or of costs of the other party are complied with. Observations of the court are to be found in para 5 of the report which reads:-

"It is true that if a plaintiff seeks to alter the cause of action itself and to introduce indirectly , through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there the Court will refuse to permit it if it mounts to depriving the party against which a suit is pending of any right which amy have accrued in its favor due to lapse of time. But, mare failure to set out even an essential faced does not by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be effective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable of the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."

22. The subsequent events were allowed to be introduced in two other decisions of the Supreme Court in Pasupuleti Venkateswarlu Vs. The Motor & General Traders and Vineet Kumar Vs. Mangal Sain Wadhera .

23. Learned counsel for the appellant submitted that allegation with respect to termination of tenancy being material fact for a suit for recovery of possession against a tenant amounts definitely to the addition of a different and distinct cause of action or a new claim made on a new basis constituted by new facts which can not be permitted in law. Such a submission is not the correct approach in such like case. Plaintiffs had already pleaded material facts constituting cause of action for the suit. It was because of the subsequent events of the Municipal corporation having served a notice of demand pursuant to which the defendant appears to have paid the amount of demand to the Corporation and thereafter was claiming that it had been paid towards rent which necessitated the plaintiffs in serving a fresh notice which facts were sought to be pleaded by the plaintiffs reiterating the earlier notice also. This in our opinion neither amounts to changing the nature in our opinion neither amounts to changing the nature of the suit nor extending the relief already prayed for. To the contrary amendment allowed to be carried out to the plait is introduction of some subsequent events which is a different approach or set of ideas for claiming the same relief, which can always be permitted in order to shorten litigation.

24. In view of the above, we do not find that learned Single Judge While exercising discretion acted arbitrary, perversely or committed any irregularity. NO interference is called for by us in exercise of such discretion.

25. Dismissed.

26. Needless to add that observations made by us while disposing of the appeal are only interlocutory for the purpose of deciding the appeal and will not cause any prejudice to the respective cases of the parties on merits.