Punjab-Haryana High Court
M/S Goel Roadways And Anr vs United India Insurance Company Ltd. And ... on 13 December, 2023
Neutral Citation No:=2023:PHHC:160675
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CR-3415 of 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-3415 of 2022
Reserved on: 14.11.2023
Pronounced on: 13.12.2023
M/s Goel Roadways and another
......Petitioners
Versus
United India Insurance Company Limited and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: Mr. Shivam Grover, Advocate,
for the petitioners.
Mr. Harsh Aggarwal, Advocate,
for respondent No.1 - Insurance Company.
NAMIT KUMAR, J.
1. This revision petition has been filed by petitioner-
defendants under Article 227 of the Constitution of India for setting
aside order dated 02.07.2022 passed by learned Civil Judge (Senior
Division), Ludhiana in Civil Suit No.CS 43716 of 2013 titled 'United
India Insurance Company Limited and another v. M/s Goel Roadways
and another', whereby application filed by respondent-plaintiffs under
Order 6 Rule 17 read with Section 151 CPC for amendment of plaint,
has been allowed.
2. Brief facts of the case are that respondent-plaintiffs filed a
suit for recovery of Rs.24,67,615/- by way of compensation and
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damages for the damaged delivered consignment dispatched vide G.C.
Note No.736609 dated 10.06.2009 Ex. Coimbatore to Malerkotla
pleading therein that plaintiff No.1 is a special power of attorney of
plaintiff No.2. Plaintiff No.2 - M/s Nahar Fibres Proprietors Nahar
Spinning Mills Limited had got a consignment of machinery from M/s
Lakshmi Machine Works Ltd., Perianalcken Playam, Coimbatore vide
invoice No.111900163/2 dated 10.06.2009 worth Rs.34,82,719.42.
The said consignment was dispatched through defendants vide G.C.
Note No.736609 dated 10.06.2009 Ex. Coimbatore to Malerkotla
through truck Nos.HR-45-A-1403 and HR-56-4932 for safe carriage
and delivery at the destination station. The said consignment was duly
insured with plaintiff No.1 vide policy No.200900/21/08/02/00000689.
The said consignment was delivered damaged at the destination station
since truck No.HR-56-4932 met with an accident in transit. The factum
regarding damaged delivery of the consignment was confirmed by the
defendants vide their damage certificate bearing reference No.0779
dated 26.11.2009 addressed to Nahar Fibres, 373, Industrial Area A,
Ludhiana. It is further pleaded that in spite of lodging the claim by
plaintiff No.2 with the defendants vide letter dated 07.07.2009 at
Ludhiana, they had not taken any step to settle the claim. Upon notice,
defendants filed written statement. During the pendency of the suit,
respondent-plaintiffs filed an application under Order 6 Rule 17 read
with Section 151 CPC, which has been allowed by the trial Court vide
impugned order dated 02.07.2022.
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3. Learned counsel for the petitioners contended that the trial
Court has committed grave error in allowing the application of the
plaintiffs under Order 6 Rule 17 read with Section 151 CPC seeking
amendment in the plaint, which is in flagrant violation of the provisions
of Order 6 Rule 17 CPC. He further contended that in the present case
the trial had already commenced and after commencement of trial the
trial Court could not have allowed the amendment application filed by
respondent-plaintiffs as it was not maintainable. He further contended
that respondents have nowhere stated in the application seeking
amendment in the plaint that amendments sought to be made in various
paras of the plaint were not in their knowledge initially at the time of
preparing the plaint and that after due diligence those facts came to his
knowledge lateron. He further contended that respondent-plaintiffs by
way of amendment are seeking to improve their case and same cannot
be permitted under the law and the impugned order is liable to be set
aside. In support of his contentions, learned counsel for the petitioner
placed reliance on the judgments of the Hon'ble Supreme Court in
Vidyabai and others v. Padmalatha and another, 2009(1)
R.C.R.(Civil) 763; North Eastern Railway Administration, Gorakhpur
v. Bhagwan Das (D) By Lrs, Law Finder Doc Id # 143877; Civil
Appeal No.1638 of 1987 - Gajanan Jaikishan Joshi v. Prabhakar
Mohanlal Kalwar - decided on 13.12.1989; Civil Appeal No.5667 of
2006 - Ajendraprasadji N. Pande and another v. Swami
Keshavprakeshdasji N. and others - decided on 08.12.2006; Civil
Appeal No.2019 of 2007 - Usha Balashaheb Swami and others v.
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Kiran Appaso Swami and others - decided on 18.04.2007 and J.
Samuel and others v. Gattu Mahesh and others, 2012(1) R.C.R.(Civil)
903.
4. Per contra, learned counsel for respondent No.1 contended
that the trial Court has rightly allowed his application under Order 6
Rule 17 read with Section 151 CPC seeking amendment of plaint as it
was necessary for proper adjudication of the matter and effectively
deciding the controversy between the parties. He further contended
that no prejudice has been caused to the petitioners by way of present
amendment as the same is clarificatory in nature. He further contended
that it is mandatory upon the Courts to allow all amendments which are
necessary for the purpose of determining the real question of
controversy between the parties. He further contended that power to
allow amendment is wide and can be exercised at any stage of the
proceedings in the interest of justice. In support of his contentions
learned counsel for respondent No.1 placed reliance on the judgment of
the Hon'ble Supreme Court in Life Insurance Corporation of India v.
Sanjeev Builders Private Limited and another, 2023(1) R.C.R.(Civil)
851.
5. I have heard learned counsel for the parties and perused
the record.
6. Amendment in pleadings is envisaged/ permitted under
Order 6 Rule 17 of the Civil Procedure Code (for short 'CPC'), which
is reproduced hereinbelow, and stipulates that:-
"The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such
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manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall be
allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the
commencement of trial."
7. Hon'ble Supreme Court in Baldev Singh & Ors. Vs
Manohar Singh & Anr 2006(2) RCR 265 enunciated law for
amendment of pleadings, which is summed up as:-
1. Courts should be extremely liberal in granting
the prayer for amendment of pleadings unless
serious injustice or irreparable loss is caused to
the other side.
2. Wide power and unfettered discretion has been
conferred on the Court to allow amendment of
the pleadings to a party in such manner and no
such terms as it appears to the court just and
proper.
3. Court shall allow amendment of pleadings if it
finds that delay in disposal of suit can be
avoided and that the suit can be disposed of
expeditiously.
4. Plea of limitation can be allowed to be raised by
way of amendment in written statement.
5. Powers of the Court are wide enough to permit
amendment of the written statement by
incorporating an alternative plea of ownership
in the application for amendment of the written
statement.
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6. Even there were some admissions in the
evidence as well as in the written statement it
was still open to the parties to explain the same
by way of filing an application for amendment
of the written statement.
7. Be a ground for rejection of the same when no
serious prejudice is shown to have been caused
to the plaintiff.
8. An amendment of a plaint.
9. Courts are inclined to be more liberal in
allowing amendment of written statement than
of plaint and question of prejudice is less likely
to operate with same rigour in the former than
in the latter case.
10. Inconsistent pleas can be raised by defendants
in the written statement although the same may
not be permissible in the case of plaint.
8. In Abdul Rhman & Anr. Vs Mohd.Ruldu & Ors. 2012 (4)
CCC 584 (S.C.) it has been held by the Hon'ble Supreme Court that a
change in the nature of relief claimed shall not be considered as a
change in the nature of Suit. Power of amendment should be exercised
in the larger interests of doing full and complete justice between the
parties. It has been further held that amendment of pleadings can be
allowed at any stage of the proceedings in the interest of justice. Main
purpose of allowing the amendment is to minimize the litigation and
the plea that relief sought by way of amendment is barred by time is to
be considered in the light of the facts and circumstance of each case
and no harm would be caused if the application is allowed.
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9. In para 70 of the judgment in Life Insurance
Corporation's case (supra), the Hon'ble Supreme Court has held as
under: -
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application
thereof are satisfied and the field of amendment of
pleadings falls far beyond its purview. The plea of
amendment being barred under Order II Rule 2 CPC is,
thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary
for determining the real question in controversy provided
it does not cause injustice or prejudice to the other side.
This is mandatory, as is apparent from the use of the word
"shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper
adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other
side,
(b) by the amendment, the parties seeking amendment does
not seek to withdraw any clear admission made by the
party which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
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(i) by the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be
time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence.
(v) In dealing with a prayer for amendment of pleadings,
the court should avoid a hypertechnical approach, and is
ordinarily required to be liberal especially where the
opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering
a more satisfactory decision, the prayer for amendment
should be allowed.
(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time
barred cause of action, the amendment is liable to be
allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in
the plaint.
(ix) Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of delay
is arguable, the prayer for amendment could be allowed
and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or
the cause of action, so as to set up an entirely new case,
foreign to the case set up in the plaint, the amendment
must be disallowed. Where, however, the amendment
sought is only with respect to the relief in the plaint, and is
predicated on facts which are already pleaded in the
plaint, ordinarily the amendment is required to be
allowed.
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(xi) Where the amendment is sought before commencement
of trial, the court is required to be liberal in its approach.
The court is required to bear in mind the fact that the
opposite party would have a chance to meet the case set
up in amendment. As such, where the amendment does not
result in irreparable prejudice to the opposite party, or
divest the opposite party of an advantage which it had
secured as a result of an admission by the party seeking
amendment, the amendment is required to be allowed.
Equally, where the amendment is necessary for the court
to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed.
(See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022
SCC OnLine Del 1897)"
10. In the case of J. Samuel (supra), the Hon'ble Supreme
Court has held as follows:
"12. The primary aim of the court is to try the case on its
merits and ensure that the rule of justice prevails. For this
the need is for the true facts of the case to be placed before
the court so that the court has access to all the relevant
information in coming to its decision. Therefore, at times it
is required to permit parties to amend their plaints. The
Court's discretion to grant permission for a party to
amend his pleading lies on two conditions, firstly, no
injustice must be done to the other side and secondly, the
amendment must be necessary for the purpose of
determining the real question in controversy between the
parties. However to balance the interests of the parties in
pursuit of doing justice, the proviso has been added which
clearly states that: no application for amendment shall be
allowed after the trial has commenced, unless the court
comes to the conclusion that in spite of due diligence, the
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party could not have raised the matter before the
commencement of trial.
13. Due diligence is the idea that reasonable investigation
is necessary before certain kinds of relief are requested.
Duly diligent efforts are a requirement for a party seeking
to use the adjudicatory mechanism to attain an anticipated
relief. An advocate representing someone must engage in
due diligence to determine that the representations made
are factually accurate and sufficient. The term 'Due
diligence' is specifically used in the Code so as to provide
a test for determining whether to exercise the discretion in
situations of requested amendment after the
commencement of trial.
14. A party requesting a relief stemming out of a claim is
required to exercise due diligence and is a requirement
which cannot be dispensed with. The term "due diligence"
determines the scope of a party's constructive knowledge,
claim and is very critical to the outcome of the suit.
15. In the given facts, there is a clear lack of 'due
diligence' and the mistake committed certainly does not
come within the preview of a typographical error. The
term typographical error is defined as a mistake made in
the printed/typed material during a printing/typing
process. The term includes errors due to mechanical
failure or slips of the hand or finger, but usually excludes
errors of ignorance. Therefore, the act of neglecting to
perform an action which one has an obligation to do
cannot be called as a typographical error. As a
consequence the plea of typographical error cannot be
entertained in this regard since the situation is of lack of
due diligence wherein such amendment is impliedly barred
under the Code.
16. The claim of typographical error/mistake is baseless
and cannot be accepted. In fact, had the person who
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prepared the plaint, signed and verified the plaint showed
some attention, this omission could have been noticed and
rectified there itself. In such circumstances, it cannot be
construed that due diligence was adhered to and in any
event, omission of mandatory requirement running into 3
to 4 sentences cannot be a typographical error as claimed
by the plaintiffs. All these aspects have been rightly
considered and concluded by the trial court and the High
Court has committed an error in accepting the explanation
that it was a typographical error to mention and it was an
accidental slip. Though the counsel for the appellants have
cited many decisions, on perusal, we are of the view that
some of those cases have been decided prior to the
insertion of Order 6 Rule 17 with proviso or on the
peculiar facts of that case. This Court in various decisions
upheld the power that in deserving cases, the Court can
allow delayed amendment by compensating the other side
by awarding costs. The entire object of the amendment to
Order 6 Rule 17 as introduced in 2002 is to stall filing of
application for amending a pleading subsequent to the
commencement of trial, to avoid surprises and that the
parties had sufficient knowledge of others case. It also
helps checking the delays in filing the applications. [vide
Aniglase Yohannan v. Ramlatha and Others, 2005(4)
RCR (Civil) 563 : (2005) 7 SCC 534, Ajendraprasadji N.
Pandey and Another v. Swami Keshav prakeshdasji N.
and Others, Chander Kanta Bansal v. Rajinder Singh
Anand, 2008(2) RCR (Civil) 801 : 2008(3) Recent Apex
Judgments (R.A.J.) 83 : (2008) 5 SCC 117, Rajkumar
Guraward (dead) through LRS. v. S.K. Sarwagi and
Company Private Limited and Another, 2008(4) RCR
(Civil) 824 : 2008(6) R.A.J. 248 : (2008) 14 SCC 364,
Vidyabai and Others v. Padmalatha and Another,
2009(1) RCR (Civil) 763 : 2009(1) RCR (Rent) 120 :
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(2009) 2 SCC 409, Man Kaur (dead) By LRS v. Hartar
Singh Sangha, 2011(1) RCR (Civil) 189 : 2010(6) R.A.J.
437 : (2010) 10 SCC 512."
11. In the present case, perusal of the record shows that
agreement of subrogation-cum-special power of attorney has been
proved on record as Ex.P4/1 in the testimony of PW1 and letter of
subrogation is on record as Ex.P5 and Ex.P5/1. Invoice bearing
No.111900163 is also already on record as Ex.P6/1 and has been
depicted in the letter of subrogation. The trial Court has rightly
observed that both the documents sought to be incorporated in the
pleadings by way of amendment have been duly proved on record by
the plaintiffs during the testimony of PW1. This Court is of the opinion
that these documents are very much necessary for the proper
adjudication of the controversy and in case application is dismissed, the
plaintiffs would suffer an irreparable loss and with the amendment no
prejudice has been caused to the petitioners. Moreover, the amendment
would not change the nature of the claim.
12. In view of the facts and circumstances of the case, no
benefit of the judgments cited by learned counsel for the petitioner can
be given to them.
13. The impugned order passed by the trial Court is quite
detailed and well-reasoned and does not suffer from any illegality or
infirmity and is not having any element of arbitrariness or perversity.
The revisional jurisdiction of this Court is quite limited and considering
the facts and circumstances of the case, there is no reason to interfere
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with the impugned order by way of exercising the revisional
jurisdiction.
14. Finding no merit in the revision petition, the same stands
dismissed.
(NAMIT KUMAR)
13.12.2023 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
Neutral Citation No:=2023:PHHC:160675
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