Union of India v. Md. Abdul Manaf — 1969 DIGILAW 41 (GAU)

ORDER This revision petition under Section 115 of the Civil Procedure Code by the Union of India and the Union Territory of Manipur, who were defendants in the suit filed by the respondent Abdul Manaf, is directed against the order dated 8-12-1966 by which Shri M. C. Ray, the Second Subordinate Judge, Manipur at Imphal, allowed the application of Abdul Manaf under O. 6, R. 17 of the Code for amendment of the plaint by incorporating therein para 8 (A), the substance of which shall presently be indicated. 2. Abdul Manaf instituted the suit in forma pauperis claiming compensation of Rs. 5 lakhs besides another sum of Rupees 60,000 representing interest on that sum of Rs. 5 lakhs and also future interest. The allegations on which the suit was founded were that immediately after the town of Imphal was bombarded on 10th and 16th of May 1942 all the officials of the State of Manipur deserted their posts and fled to places of safety thereby paralysing the Civil Administration and creating a law and order problem. Faced With that situation, Mr. T. A. Sharpe, I. C. S., the then President of the Manipur State Darbar, recruited the plaintiff with the concurrence of H. H. the Maharaiah of Manipur with effect from 9-6-1942 for service in Administrative Commandants office as Station Interpreter. His employment in that post, the plaintiff alleged, was based on agreement of even date entered into between him and the State of Manipur, and that the salient term of the agreement was that after the termination of war the State shall offer him a senior post not inferior to that of a Darbar Member, or any first class permanent post he preferred, within 14 years of his discharge by the Military. It was also pleaded that the Maharajah of Manipur passed an order on 15-3-1943 that the plaintiff shall be awarded a compensation of Rs. 5 lakhs in case he was not offered the promised post within that period of 14 years. The plaintiff worked with the Military Authorities from 9-6-1942 upto 31-5-1946 when he was discharged. Sometime thereafter, he was appointed as a Clerk in the Manipur Administration. He is at present working there as Upper Division Clerk. 5 lakhs in case he was not offered the promised post within that period of 14 years. The plaintiff worked with the Military Authorities from 9-6-1942 upto 31-5-1946 when he was discharged. Sometime thereafter, he was appointed as a Clerk in the Manipur Administration. He is at present working there as Upper Division Clerk. In para 10 of the plaint it was alleged that there had been quite a few changes in the Governmental set-up in the State of Manipur until it was declared the Union Territory, and that under the provisions of the Constitution of India the two defendants, in their capacity as the legal successors of the former State of Manipur, are bound to honour the lawful obligations, liabilities, and commitments entered into by the, Darbar of the Manipur State with the approval of the Maharaiah of Manipur. In para 12 it was pleaded that the order of the Maharajah dated 15-3-1943 has the force of a statutory legislation and so it is binding on the two defendants in terms, inter alia, of the Constitution of India. In the next para 13 of the plaint the plaintiff complained that ever since his discharge on 1-6-1946 from the Military Service he had not been given the promised senior appointment in the Manipur Administration and so he was entitled to claim the amount of compensation mentioned in the Maharajahs order dated 15-3-1943. 3. The suit was resisted by the defendants who denied that any agreement had been made by the President of the Darbar or the Maharajah of Manipur with the plaintiff, and pleaded in addition that such agreement was not binding on either of them (the defendants). It was alleged further that the Government of India is not a legal successor to the former State of Manipur, nor are the agreements concluded between the State and private individuals binding on either of the two defendants unless, of course, such agreements were recognised by them in express terms or impliedly or by appropriate legislation. It was stated further that neither the Government of India nor any of its agents had recognised the agreement pleaded by the plaintiff. 4. Before the suit could reach the stage of recording evidence, the plaintiff moved an application for amendment of the plaint by adding para 8 (A) thereto. It was stated further that neither the Government of India nor any of its agents had recognised the agreement pleaded by the plaintiff. 4. Before the suit could reach the stage of recording evidence, the plaintiff moved an application for amendment of the plaint by adding para 8 (A) thereto. The substance of the proposed amendment was that the Chief Commissioner of Manipur had made an order in February 1951 to the effect that the contractual obligation undertaken by the President of the Manipur State Darbar towards the plaintiff would be honoured and that the plaintiff shall be posted in the Manipur Secretariat temporarily pending his appointment to a suitable post in terms of the contract. This order of the Chief Commissioner, it was stated further, had been communicated to the Deputy Commissioner (Civil Supplies) by the Development and Revenue Commissioner of the State. This proposed amendment was opposed by the two defendants. However, the learned Subordinate Judge allowed the amendment by his order dated 8-12-1966 on the basis that it would not introduce any new cause of action but would only clarify certain matters which had already been set out in the plaint. It is against this order of amendment that the Union of India and Union Territory of Manipur have come up in revision. 5. Shri Ibotombi Singh, the learned Government Advocate, urged for the petitioners that since the amendment allowed, introduced a fundamental change in the cause of action on which the suit was originally founded, there had come about an equally fundamental discordance between the notice served on the defendants under Section 80 of the Code and the plaint as it stands at present. He submitted further that on account of that discordance between the plaint and the notice, the plaint will have to be rejected under O. 7, R. 11, of the Code, and that constitutes sufficient justification for the contention that the prayer for amendment should have been disallowed. The Government Advocate submitted further that the accession of the State of Manipur to the Union of India on 15-10-1949 was an "act of State" and for that reason all agreements made between the erstwhile Manipur State and its citizens lapsed and so they could not be enforced against the new sovereign, namely, the President of India. The Government Advocate submitted further that the accession of the State of Manipur to the Union of India on 15-10-1949 was an "act of State" and for that reason all agreements made between the erstwhile Manipur State and its citizens lapsed and so they could not be enforced against the new sovereign, namely, the President of India. It was also urged by him that the Chief Commissioner had no authority to recognise such agreements without the express sanction of the new sovereign. These are all weighty submissions. It was held in the case of Cipriano Negredo v. Union of India, AIR 1969 Goa 76 , that when one State is absorbed in another, whether by its cession, conquest, merger, or integration, all contracts of service between the prior Government and its servants are automatically terminated. It was observed further that if after such termination of service, those who elect to serve in the new State and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more than an application of principle that underlies the law of Master and Servant when there is a change of the masters. The justification for these principles lies in the fact that the "act of State" is an act which does not purport to have been done under colour of a legal title but in exercise of the sovereign authority of the State in external politics. Hence, when the State of Manipur merged with the Union of India, all agreements between the former State and its servants came to an abrupt and automatic end. Therefore, Abdul Manaf could not have based the present suit on the original agreement between him and the Maharajah of Manipur unless that agreement had been recognised, expressly or impliedly, by the new sovereign. Since this recognition was not mentioned in the plaint originally filed and was introduced for the first time by the amendment allowed by the Court, there has been, without doubt, a fundamental change in the cause of action. The notice served on the defendants under Section 80 of the Code does not correspond to the pleadings set out in the amended plaint. The notice served on the defendants under Section 80 of the Code does not correspond to the pleadings set out in the amended plaint. The inevitable consequence of the amendment now made would be that the plaint shall have to be rejected for the reason that it does not correspond with the notice served on the Government under Section 80 of the Code. In such circumstances, the trial Court would have been better advised not to allow the amendment. 6. The Supreme Court held in the case of State of Madras v. C. P. Agencies, AIR 1960 SC 1309 , that Section 80 of the Code is express, explicit and mandatory and admits of no implications or exceptions. The object of the section is manifestly to give the Government or the public officer sufficient notice of the case which is_ proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer, the Supreme Court observed further, to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for. The underlined (here in ) words clearly negative the view of the trial Court that if the amendment does not alter the relief claimed in notice and the suit, no further notice prior to the amendment is necessary. Since the relief claimed in the notice has to be adjudged by the Government or the public officer concerned, before accepting or rejecting the same, in the light of the facts mentioned in the notice, it is only logical that if after mentioning one set of facts in the notice the suit is instituted and then facts of fundamentally different, nature are introduced by way of amendment of the plaint, that notice should not be considered legally sufficient. The case in hand falls in such category. The plea of ratification of the agreement on behalf of the new sovereign having not been mentioned in the notice under Section 80, that notice cannot serve the purpose of the amended plaint. 7. The case in hand falls in such category. The plea of ratification of the agreement on behalf of the new sovereign having not been mentioned in the notice under Section 80, that notice cannot serve the purpose of the amended plaint. 7. The Government Advocate cited the case of U. P. Government v. Nanhoo Mal Gupta, AIR 1960 All 420 , in support of the contention that a suit cannot be instituted by the plaintiff on a cause of action which is substantially different from the one mentioned in the notice. The facts of that case have a close parallel to those of the case in hand. The agreement made in that case between certain officers of the Government and Nanhoo Mal plaintiff did not comply with the provisions of Section 175 (3) of the Government of India Act 1935, which provisions correspond with Article 299 of the Constitution. When this legal lacuna was brought to the notice of the plaintiff by the High Court while hearing the appeal filed by the Government against the decision of the trial Court, the plaintiff sought the permission of the High Court to amend the plaint to introduce the allegation that the agreement had been ratified by the Government. However, since this allegation of ratification had not been mentioned in the notice under Section 80 of the Code, the High Court rejected the prayer with the observation that after a suit has been instituted against the Government it is not open to the plaintiff to make a fundamental departure in his plaint from the cause of action already mentioned in the notice given under Section 80. The High Court held further that where the position is that ratification of the agreements which are ex facie unenforceable against the Government is not stated in the notice under Section 80, and it is also not pleaded in the plaint and the record of the case does not contain any fact or facts which would show that the Government had in fact ratified the said agreements, it would not be open to the plaintiff to introduce by way of amendment the plea of ratification in the plaint, since that would mean substantial variance from the allegations set out in the notice. Shri Nilamani Singh, the learned counsel for the plaintiff, conceded at the bar that he had not been able to find any authority differing from the view taken by the Allahabad High Court in this case. I think that view is unexceptionable on principle. No Court can, or should, allow an amendment of the pleading which will not serve any practicable purpose. If the amendment permitted by the trial Court in our case were allowed to stand, there would be, as stated above, complete discordance between the amended plaint and the facts mentioned in the notice given under Section 80, with the inevitable consequence that the plaint shall have to be rejected under O. 7, R. 11, of the Code. 8. For the reasons stated above, it is legally not possible to uphold the order dated 8-12-1966 by which the trial Court permitted the plaintiff to amend the plaint. Hence, I allow the revision petition and quash that order. Since the point involved was not altogether free from difficulty, I leave the parties to bear their own costs. Advocates fee Rs. 32. Petition dismissed.