Union of India v. Wahenghbam Lalmani Singh — 1970 DIGILAW 6 (GAU)

ORDER The plaintiff Wahengbam Lalmani Singh, a Veterinary Assistant Surgeon in the Government of Manipur, was transferred by the Chief Executive Officer of the Territorial Council, Manipur by an order dated 28-9-1961 from Thoubal to Jiribam. That order was communicated to him on 24-11-1961 for compliance by the Principal Officer of the Territorial Council. The plaintiff made a representation against the order transferring him to Jiribam. That representation, however, remained unanswered. Having felt aggrieved, the plaintiff instituted a suit on 3-12-1964 against the Union of India and the Union Territory of Manipur. The reliefs claimed were for a declaration that the order made by the Principal Officer was illegal and for recovery of Rupees 8,181.18 representing the arrears of pay from December 1961 to November, 1964. He also claimed a decree for future pay, beginning with December 1964. The suit was resisted by the defendants and four issues were settled between the parties. 2. After the plaintiff had concluded the examination of his witnesses and before the defendants had opened their case, the plaintiff moved an application under O. 6, R. 17 of the Civil P. C. seeking permission for amendment of the plaint. In substance, the plaintiff wanted to introduce the following amendments: (i) That the order dated 28-9-1961 passed by the Chief Executive Officer of the Territorial Council was illegal; (ii) That the appointment of Shri Ranbir Singh, the Chief Executive Officer of the Territorial Council, was invalid inasmuch as the Union Public Service Commission had not been consulted before his appointment as required by the proviso to sub-section (5) of S. 32 of the Territorial Council Act, 1956; and (iii) That the Manipur Territorial Council (Declaration of Powers) Bye-Laws, 1959, under which the Chief Executive Officer had made the transfer order dated 28-9-1961 are ultra vires of the Manipur Territorial Council, and as such are null and void. The amendment application was opposed by the defendants. However, the trial Court accepted the application in its entirety by its order dated 17-5-1968. It is to challenge the validity of that order that the defendants filed the instant revision petition under Section 115 of the Code read with Section 34 of the Manipur (Courts) Act, 1955. 3. Two points were vehemently urged by Shri Ibotombi Singh, appearing for the petitioners, against the validity of the impugned order. It is to challenge the validity of that order that the defendants filed the instant revision petition under Section 115 of the Code read with Section 34 of the Manipur (Courts) Act, 1955. 3. Two points were vehemently urged by Shri Ibotombi Singh, appearing for the petitioners, against the validity of the impugned order. Firstly, he submitted that the plaintiffs case after the amendment is fundamentally different from the one set out in the original plaint, and that amendments of such character are not contemplated by Order 6, Rule 17 of the Code. His other contention was that since the facts set out by the plaintiff in the notice served on the defendants under Section 80 of the Code do not correspond with those stated in the amended plaint, the suit in its present shape cannot be maintained and so the plaint has to be rejected. I must also mention here that Shri Ibotombi Singh also urged, though in a lukewarm manner, that the prayer for amendment had been sought rather belatedly and so in fairness to the defendants it should have been disallowed by the trial Court. This last point, it appears, is without merit. Rule 17 of O. 6 specifically mentions that the Court can allow the amendment to either party at any stage of the proceedings. It is well settled that prayer for amendment of pleadings can be allowed even at the appellate stage. To cite only one such instance, I invite attention to the case of A. K. Gupta v. Damodar Valley Corporation, AIR 1967 SC 96 . There the amendment had been allowed by the High Court when during the course of arguments the plaintiff felt that without amendment of the plaint his suit shall fail in view of the proviso to Section 42 of the Specific Relief Act. The defendant Corporation did not challenge in the Supreme Court the order of the High Court allowing the amendment on the score that it had been granted belatedly. Hence, I repel the third submission made by the learned Government Advocate. 4. The other two points raised by him undoubtedly require some detailed scrutiny. The defendant Corporation did not challenge in the Supreme Court the order of the High Court allowing the amendment on the score that it had been granted belatedly. Hence, I repel the third submission made by the learned Government Advocate. 4. The other two points raised by him undoubtedly require some detailed scrutiny. Rule 17 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such 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. Apparently, the phraseology of the rule places no restrictions on the powers of the Court to allow amendment of the pleadings to either of the parties and at any stage of the proceedings. In fact, the latter part of the rule states in bold relief that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties shall be made. This statutory injunction can possibly be explained on the principle that the object of the Courts is to decide the rights of the parties and not to punish them for mistakes they made in conducting their cases. The settled rule, bearing on amendments of the pleadings, appears to be that a party should be allowed to make such amendments as may be necessary for determining the real questions in controversy or to avoid multiplicity of suits provided, (1) that no new or inconsistent cause of action is introduced, (2) that a legal right which has accrued to the opposite party is not affected, and (3) that the application for amendment is not mala fide. In the case of A. K. Gupta, AIR 1967 SC 96 (Supra) the Supreme Court stated very tersely that in the matter of allowing amendment of pleadings the general rule is that a party is not allowed by amendment to set up a "new case" or a "new cause of action" particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. The Supreme Court also happened to define the expressions "cause of action" and "new case" as under: "The expression "cause of action" in this context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new claim made on a new basis constituted by new facts. The words "new case" mean new set of ideas. Thus no amendment will be allowed to introduce new set of ideas to the prejudice of any right acquired by any party by lapse of time." In the case of Ma Shwe Mva v. Maung Mo Hnaung, AIR 1922 PC 249, the Privy Council observed that all rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised. But, nevertheless, the Privy Council observed further, no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. 5. It is in the background of these principles that I proceed to examine the validity or otherwise of the order made by the trial Court. In the plaint as originally filed, as also in the notice given to the defendants under Section 80 of the Code, only the validity of the transfer order was challenged, and that challenge was on the basis that the Principal Officer had no jurisdiction to order to transfer of the plaintiff. Neither the validity of the appointment of the Executive Officer of the Territorial Council, nor the validity of the Bye-Laws on the basis of which that Officer had ordered the transfer of the plaintiff on 28-9-1961, was assailed. Therefore, it looks obvious that these two allegations introduced a "new case", which expression, according to the Supreme Court authority quoted above, means "new set of ideas". Therefore, it looks obvious that these two allegations introduced a "new case", which expression, according to the Supreme Court authority quoted above, means "new set of ideas". Hence, I see no legal justification for allowing amendment of the plaint incorporating the allegations that the appointment of the Chief Executive Officer and the bye-laws on the footing of which he had passed the transfer order are illegal. Such an amendment, as I would show presently, would also offend the provisions of Section 80 of the Code and as such cannot be permitted. Shri Nilamani Singh, appearing for the plaintiff respondent, accepted the correctness of this conclusion and so stated at the bar that he drops the prayer for amendment respecting those two points. 6. However, I find no fault with the order of the trial Court allowing the amendment on the point that the transfer-order dated 28-9-1961 passed by the Chief Executive Officer is illegal. It is for the reason that Rule 17 of Order 6 commands that all amendments necessary for the purpose of determining the real questions in controversy shall be allowed. The real question in controversy between the parties, beyond dispute, is the validity or otherwise of the order transferring the plaintiff from Thoubal to Jiribam. That order was indisputably made by the Executive Officer on 28-9-1961. The Principal Officer had only communicated that order to the plaintiff on 24-11-1961. Therefore, the latter order cannot be described as the transfer order. As such, it was only by sheer inadvertence or by some confused thinking that it was mentioned in the plaint that the transfer had been made by the Principal Officer by his order dated 24-11-1961. Hence, I uphold the order of the trial Court allowing the amendment to that extent. Such amendment would neither change the cause of action nor would amount to setting up of a new case. It was known to the defendants right from the beginning that the plaintiff had been challenging the validity of the order transferring him from one station to another, and so they must have examined all aspects of the matter before putting in their written statement in the Court. In that context, it cannot be said that the defendants have been taken by surprise by the amendment in question. 7. In that context, it cannot be said that the defendants have been taken by surprise by the amendment in question. 7. This brings us to the consideration of the second submission made by Shri Ibotombi Singh, namely, the one relating to Section 80 of the Code. The object of that section, it is well settled, 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 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 and the facts on which the claim is founded and the precise reliefs asked for. It was held in the case of Dhian Singh v. Union of India, AIR 1958 SC 274 , that though the terms of Section 80 are to be strictly complied with, that does not mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. These observations of the Supreme Court were approvingly cited in a recent decision reported as AIR 1969 SC 674 , Raghunath Das v. Union of India. It follows that where there is no substantial variation between the notice and the plaint, the maintainability of the suit will not be affected. However, where the case set up in the plaint is different from the one stated in the notice, the plaint shall have to be rejected. Since, in the instant case the plaintiff had not mentioned in the notice that the appointment of the Chief Executive Officer was illegal and the Bye-laws on the authority of which he had passed the transfer order are ultra vires, if those allegations are now introduced in the plaint by way of amendment there shall be discord between the two documents and so the provisions of Section 80 shall be seriously offended. Consequently, the contention of the Government Advocate that the trial Court had gone wrong in permitting the amendment of the plaint respecting those two allegations is well merited and so must prevail. Consequently, the contention of the Government Advocate that the trial Court had gone wrong in permitting the amendment of the plaint respecting those two allegations is well merited and so must prevail. At the same time, I cannot agree with the Government Advocate that the other amendment, namely, that the transfer order dated 28-9-1961 made by the Chief Executive Officer is illegal and invalid, would bring about any substantial variation between the notice and the plaint as amended. The two defendants knew well that the grievance of the plaintiff was respecting his transfer from Thoubal to Jiribam, and since the defendants were completely aware of the fact that that transfer had been ordered by the Chief Executive Officer and not by the Principal Officer, there would be no substantial change between the facts mentioned in the notice and in the amended plaint. I would therefore, uphold the order made by the trial Court to the extent indicated. 8. The upshot of the findings recorded above is that the plaintiff is allowed to amend the plaint only to the extent that he can challenge the validity of the transfer order dated 28-9-1961 on grounds other than that the appointment of the Chief Executive Officer was illegal and that the Bye-laws were ultra vires of the Territorial Council. The revision petition is therefore accepted to the extent indicated. In view of the partial success of the parties I leave them to bear their own-costs. Advocates fee Rs. 32. Order accordingly.