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1963 DIGILAW 34 (GAU)

Kshetrimayum Daoji Singh v. Union Territory of Manipur

1963-06-07

T.N.R.TIRUMALPAD

body1963
ORDER :- This is a Revision petition against the order of the Second Subordinate Judge, Manipur, dismissing an application filed by the petitioner as plaintiff for amendment of his plaint. The respondents in this Revision petition are the Union Territory of Manipur and the Union of India. The plaint filed by the petitioner mentioned that he was a contractor for the construction of 5 S. I. quarters, that he carried on the work under instructions from an Assistant Engineer by name Balbir Singh that the casting of some R.C. Chaja which was completed was found defective and he was asked to dismantle and recast the same, that without giving further instructions the work was entrusted to a new contractor without calling for fresh tender, that the new contractor started his work on 11-1-1958 and that on 10-5-1958, the petitioner wrote to the Principal Engineering Officer to stop the new work pending the decision of the enquiry, but that he did not receive any reply. Hence, the plaintiff claimed as stated in paragraph 6 of his plaint certain amounts by way of Quantum Meruit. In the schedules "A" and "B" attached to the plaint, he gave the details of his claim and this showed that he claimed Rs. 1,130.59 nP. for materials left at the worksite by him, Rs. 4,312.00 nP. as the balance due as per bills submitted for the work done, Rs. 6,400.00 nP. as future profits by way of damages and Rs. 1,200.00 np., as the earnest money given by him. Towards this total claim he deducted Rs. 3,265.51 nP., as costs of materials indented, realisable from him. 2. Now, he seeks to amend this plaint by adding further details of the contract in paragraph 1 of the plaint. There cannot be any serious objection to this and the Subordinate Judge should have allowed this. 3. But in paragraph 2 of the plaint, he wants to add that the casting of R.C. Chaja was carried out by the contractor without any fault on his part, but that it was stated to be defective that he had submitted that there was no fault on his part, but the fault was on the part of the Government and if the Chajas were to be demolished he should be compensated. There is no doubt that paragraph 2 would completely change his original stand. There is no doubt that paragraph 2 would completely change his original stand. In fact, as paragraph 2 stood originally the plaintiff admitted that the R.C. Chaja casting was defective. But now he wants to make out that they were not defective and that he was entitled to compensation. This is a new and inconsistent case which cannot be allowed. 4. Then coming to paragraph 4 of the plaint he wanted to add that he was forcibly ousted from the worksite and that this was in breach of the contract and he had suffered loss for the work to be done and for the work done. This is again a new and inconsistent case. In the original plaint there was no word about any breach of contract committed by the respondents and the whole attack was about the work being entrusted to a new contractor without calling for fresh tender for the work. Reading paragraphs 2 and 4 together the plaintiffs whole complaint was that he was not given an opportunity to re-cast the R.C. Chaja which were defective and that the work should not have been entrusted to a new contractor without calling for fresh tenders. 5. The learned Advocate, appearing for the petitioner-plain tiff argued that the original plaint was really defective in that it failed to mention about the breach of contract by the respondents and that he should therefore be given an opportunity to make the necessary averments in the plaint for the purpose of determining the real questions in controversy between the parties. He pointed out that in Schedule B attached to the plaint he had claimed Rs. 6,400.00 nP. as future profits by way of damages, that such a claim can be made only on the basis of breach of contract on the part of the respondents and that the failure to mention it in the original plaint was a defect which should be allowed to be cured by this amendment. He also pointed out that in schedule B he had claimed as the amount due as per bills submitted for the work done which was on the basis that R.C. Chaja were not defective and that this amounted to a statement that the R.C. Chaja were not defective. 6. We are not to be guided by a schedule attached to the plaint which only contained the details of the claim. 6. We are not to be guided by a schedule attached to the plaint which only contained the details of the claim. The real basis of the claim should be alleged in the plaint. The Government being the defendants in the suit are also entitled to notice under Section 80 C.P.C. in which the cause of action and the relief which the plaintiff claims in the suit must be stated. When therefore, the notice originally sent did not make mention of any breach of contract by the defendants and did not mention the said breach of contract as the cause of action for the suit and did not show that the relief which he claimed was on the basis of breach of contract, the plaintiff cannot be allowed to set up a new cause of breach of contract which is certainly inconsistent with the original case which he set up in the plaint. 7. In paragraph 6 of the plaint, the plaintiff has mentioned his claim to be by virtue of his right to sue for Quantum Meruit and he has stated that the total amount was as per account 1 in the schedule. Thus, though in the schedule he had mentioned future profits by way of damages, his whole claim was based on Quantum Meruit. Now the plaintiff wants to delete the entire paragraph 6 and substitute in its place paragraphs 6 and 6(a) in which mention is made of the breach of contract and the loss suffered by him and on the basis of which he claims profits. This certainly cannot be permitted. A suit based on Quantum Meruit cannot be sought to be converted into one for breach of contract. The learned Subordinate Judge was, therefore, right in disallowing the amendments of paragraphs 4 and 6 of the plaint by addition of the plea of breach of contract and by the substitution of new paragraphs 6 and 6(a) in place of the original paragraph 6. 8. The other amendment claimed is in paragraph 9 of the plaint which is only consequential on the amendments to paragraphs 4 and 6 of the plaint and that also was rightly disallowed. 9. Thus, there are no merits in this Revision petition. 8. The other amendment claimed is in paragraph 9 of the plaint which is only consequential on the amendments to paragraphs 4 and 6 of the plaint and that also was rightly disallowed. 9. Thus, there are no merits in this Revision petition. The Subordinate Judge could have allowed the amendment to paragraph 1 of the plaint which was only giving the details of the contract entered into by plaintiff with the defendants. There was no harm in allowing the said amendment. Hence, the amendment to paragraph 1 alone is allowed. With regard to the remaining amendments, the Subordinate Judge was right in disallowing the same and the Civil Revision petition is dismissed in that respect. As the petitioner has lost his main claim in this Revision petition, he is directed to pay the costs of the respondents in this Revision petition. Order accordingly.