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1987 DIGILAW 413 (ALL)

Food Corporation of India, New Delhi v. Rajesh Kumar Varshney

1987-04-06

A.N.DIKSHITA

body1987
ORDER A.N. Dikshita, J. - This revision under S. 115, C.P.C. is directed against the judgment and order dated 16-2-1987 passed by Sri S. Chandra, Additional Civil Judge, Aligarh, in Original Suit No. 183 of 1983 by which an amendment application dated 22-2-1987 filed on behalf of the plaintiff for incorporating certain amendments has been allowed. 2. Facts in a narrow compass are that the plaintiff filed a suit for granting the following reliefs : "(A) That by a decree of mandatory injunction issued against the defendants the defendants be directed to allow the contract work to be done by the plaintiff regarding handling and transport at FSD, Aligarh, till 27-11-1983 the period of contract and make regular payments of plaintiffs bills for the work done by the plaintiff. (B) That the costs of the suit be awarded to the plaintiff against the defendants. (C) Any other relief which the court may deem fit and proper for the benefit of the plaintiff be also granted to the plaintiff against the defendants." On the allegations that he was carrying the work of handling and transportation of food grains and was granted a contract by the defendants for such purpose on ad hoc basis. While the contract on ad hoc basis was continuing tenders were invited by the defendants for the handling and transport of food grains at F.S.D., Aligarh, on regular contract basis. On the basis of certain negotiations between the parties the plaintiff started work with effect from 27-11-1981. Necessary formalities for the performance of the contract were achieved. During the pendency of the work disputes and differences arose between the parties so much so that the money due to the plaintiff was not paid and even the work which was suspended by the plaintiff for a short while was again re-started The plaint allegations reveal that the contract was to end by 27-11-1983 but the defendants illegally and without any right terminated the contract with effect from 20-2-83. Much of the amount which was due to the plaintiff was also not paid. On account of this alleged wrongful and illegal termination of contract on 20-2-83 the cause of action for the suit arose on the date, i.e. 20-2-83. The suit was valued for the purpose of jurisdiction at Rs. 80,000/- approximately. Much of the amount which was due to the plaintiff was also not paid. On account of this alleged wrongful and illegal termination of contract on 20-2-83 the cause of action for the suit arose on the date, i.e. 20-2-83. The suit was valued for the purpose of jurisdiction at Rs. 80,000/- approximately. As has been shown above the decree for mandatory injunction was sought against the defendants for permitting the plaintiff to continue with the con tract up to 27-11-83 and also for making regular payments of the bills for the work done by the plaintiff. During the pendency of the suit an amendment application was filed on 22-7-86, nearly after about 3 years and 2 months, for incorporating certain amendments in the plaint. Para 22-A is recited herein below along with the relief claimed in respect of the amendments sought: "22-A. That the period of the plaintiffs contract has expired during the pendency of suit and the defendants have not paid the arrears of Rs. 10,63,964.82 paise as detailed in Schedules II and III appended with the plaint, to the plaintiff is legally entitled to recover such amount from the defendants. "(AA). A decree for recovery of Rs. 10,63,964.82 along with interest pendente lite and future Rs. 18 per cent per annum be passed in favour of the plaintiff against the defendants." Necessary objections against this application were filed on behalf of the defendants. After hearing the parties the trial court allowed the application for amendment vide order dated 16-2-87. Hence this revision by applicants. 3. Learned counsel for the parries have been heard. 4. Learned counsel for the applicants submitted that the trial court has acted beyond its jurisdiction and in fact has illegally exercised the jurisdiction by committing material irregularities inasmuch as the amendments which were sought would permit the plaintiff to get over the bar of limitation, it has further been submitted that by the impugned amendments which are being sought to be incorporated the plaintiff is attempting to introduce several new causes of action which are not related to the original plaint. In any case it has been submitted that the amendments so sought will change the very nature of the suit and were thus not liable to be permitted. Lastly learned counsel for the applicants submitted that the amendment application was highly belated. 5. In any case it has been submitted that the amendments so sought will change the very nature of the suit and were thus not liable to be permitted. Lastly learned counsel for the applicants submitted that the amendment application was highly belated. 5. Learned counsel for the plaintiff opposite party has urged that the trial court did not commit any illegality or any jurisdictional error in allowing the application, the allegation that new causes of action have been introduced has also been denied. It has been submitted that the nature of the suit would not be changed. 6. As has been shown above the plaintiff had filed the suit for granting a decree of mandatory injunction with a direction to allow the contract work to be done by the plaintiff regarding handling and transport at FSD, Aligarh, till 27-11-83 (the period of contract) and also for making regular payments of the plaintiffs bills for the work done by the plaintiff. By the impugned amendment the plaintiff has claimed a decree for recovery of Rs. 10,63,964.82 paise. The plaintiff has further sought permission to sue as an indigent person. 7. Learned counsel for the applicants has submitted that the impugned amendments change the very nature of the suit and it cannot be said that the plaintiff is claiming damages either in addition to or in substitution for such injunction. It is fairly conceded by the learned counsel for the applicant that where no such damages have been claimed in the plaint the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint on such terms as may be just for including such claim. But it has been submitted that the plaintiff is not claiming damages as would be clear from Schedule II to the amendment application. The plaintiff has claimed the following amounts which are not in any case damages except clause (X) : "(I). Ad hoc security Rs. 19,500/- plus 18% interest per annum with effect from 27.11 till realisation of this amount from FCI. (II). Pending claim/bills of ad hoc contract amounting to Rs. 7,000/-. (III). Difference of rate amounting to Rs. 20,000/- deducted from my bills for the period 17-6-81 to 26-11-81 at the rate of 15% as or that is difference of 38% ASCR and 37% ASOR. (IV). An amount of Rs. (II). Pending claim/bills of ad hoc contract amounting to Rs. 7,000/-. (III). Difference of rate amounting to Rs. 20,000/- deducted from my bills for the period 17-6-81 to 26-11-81 at the rate of 15% as or that is difference of 38% ASCR and 37% ASOR. (IV). An amount of Rs. 7,945.07 deducted from my bills towards demurrage for which responsibility has been fixed on S.W.C. (V). Rs. 10,000/- earnest money withheld in regular contract while prescribed half security amounting to Rs. 25,000/- was already deposited on 1-12-82 from 15-12-81 till date. 18% interest per annum will be charged from 15-12-81 till earnest is refunded. (VI). Double cost of 98 bags amounting to Rs. 30,380/- deducted from my bills unauthorisedly. (VII). Bills amounting to Rs. 42,525.54 not payable and pending with D. FCI, Agra. (VIII). Pending works worth Rs. 1,15,000/-approx. as the claim has not been calculated in absence of work slips. (IX). Detention charges for trucks and labour with effect from 31-5-81 to 20-2-83 amounting to Rs. 4 lacs approx. (X). Damages for breach of contract amounting to Rs. 1,00,000/-. (XI). Security amounting to Rs. 50,000/-lying with FCI against the present contract. (XII). Rs. 2,000/- deducted at the rate of 22% rebate allowed to FCI for releasing the payment within seven days from the date of its submission by demand draft but no payment released in time." The only amount which is claimed for damages for breach of the contract is Rs. 1,00,000/-. It is thus clear that the amount of Rs. 10,63,964.82 for which a decree has been claimed would not be deemed to be damages. Admittedly this amount is barred by limitation when the application for amendment was filed. This amount has manifestly become barred by time and a valuable right has thus accrued in favour of the defendants applicants. The cause of action which accrued to the plaintiff for maintaining the suit is not the contract but is the refusal of the applicants to continue the contract. It is thus clear that new causes of action are being introduced by the amendments. 8. The suit was filed for granting a decree of mandatory injunction with a direction to the applicants to continue with the contract and also to pay the running bills. If the impugned amendments are permitted they will necessarily change the very nature of the suit. 8. The suit was filed for granting a decree of mandatory injunction with a direction to the applicants to continue with the contract and also to pay the running bills. If the impugned amendments are permitted they will necessarily change the very nature of the suit. It is thus clear that the amendments which were sought to be introduced would completely change the nature of the suit and such amendments would not be permissible. 9. The suit was filed on 25-5-83. The impugned application for amendment was filed after a lapse of more than 3 years 2 months on 22nd July, 1986. This application was highly belated. It is thus clear that the Court below exceeded its jurisdiction which otherwise did not vest in it while allowing the application for the amendment of the plaint. The impugned amendments seek to introduce a new case all together and even the relief for claiming a decree of Rs. 10,63,964.82 was sought to be introduced. The plaintiff-opposite-party by introducing the amendments is trying to displace the defendant-applicant by claiming an amount which otherwise is barred by limitation. This would necessarily prejudice the defendant-applicant. if the amendments are allowed to be incorporated. It is true and it is the settled law that Courts should be liberal in allowing amendments unless it is proved that the other party would be prejudiced to the extent that he would be deprived of some right which had accrued in his favour. Catena of decisions is there that amendments should be allowed if they do not change the very nature of the suit. Viewing this aspect it is clear that by the impugned amendments a new case is being set up by the plaintiff thus changing the nature of the suit. A valuable right has accrued to the defendant-applicant as regards the claim which has become barred by limitation. It is thus clear that the trial court exercised its jurisdiction illegally and which otherwise did not vest in it while allowing the amendment application filed by the plaintiff-opposite party. It is also well settled that unless there is an error in the exercise of jurisdiction by the trial court the High Court would not interfere with the order in the exercise of its revisional jurisdiction. It is also well settled that unless there is an error in the exercise of jurisdiction by the trial court the High Court would not interfere with the order in the exercise of its revisional jurisdiction. However, in the instant case as has been shown above the plaintiff had introduced a new cause of action and claimed an amount which otherwise was barred by limitation. The suit was filed for mandatory injunction but to overcome the period of limitation in respect of other claims amendments had been sought thus changing the very character of the suit. Admittedly a fresh suit on the amended plaint would be barred by limitation on the date of the application. As a rule the Courts would decline to allow such amendments. In the case of A. K. Gupta and Sons v. Damodar Valley Corporation, AIR 1967 SC 96 it has been held that a party cannot be 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. The claim for the amount was nowhere pleaded or shown in the plaint. In the case of Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 it has been held : 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 amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. 10. In view of the above discussions the revision deserves to be allowed and the order dated 22-2-1987 allowing the amendment application is hereby set aside. 11. In the result the revision succeeds and is hereby allowed. The order dated 22-2-87 is hereby set aside. Costs on parties.