Judgment :- 1. The plaintiff in O.S. 107/78 id the court of the Principal Sub Judge Palghat is the revision petitioner. 2. The suit, instituted under S.20 of the Arbitration Act, is for an order directing the defendant to file the agreement, containing the arbitration clause, entered into between 'the plaintiff and the defendant, in court for the purpose of referring the dispute to an arbitrator who will be appointed by the court. The defendant, instead of responding to the notice ordered in the suit, filed O.S. 130/78, wherein be had prayed that under the contract, amounts are due to him and since the plaintiff-petitioner failed to pay the said amounts despite notice, a decree be passed against the plaintiff. In the said suit the petitioner-plaintiff filed an application under S.34 of the Arbitration Act. The court below as also this court rejected the said application. Thereafter the court below has ordered joint trial of the suits. O.S. 107/78 and O.S. 130/78. 3. According to the petitioner-plaintiff, his suit would become infructuous unless the reliefs prayed for therein are substituted by the reliefs made mention of in the petition filed by it under Order VI R.17 CPC. In the petition for amendment, the plaintiff has specifically stated that the prayer for appointment of the arbitrator has become infructuous in view of the judgment in M.F.A. 661/80 of this court, confirming the order of the Subordinate Court rejecting its application under S.34 Arbitration Act, seeking stay of the suit, O.S. 130/78. The plaintiff submits that in the changed circumstances, brought about by the above judgment of this court, the Subordinate Court, inasmuch as it has seisin of the matter, ought have to be proceeded to adjudicate upon the matter sought to be referred to arbitrator. The petitioner-plaintiff however, can have this remedy only by amending the pleadings and incorporating the reliefs made mention of in the application in the place of the original reliefs. 4. The defendant opposed the amendment. He contended that the amendment if allowed, would change the character of the suit. He also contended that the dispute arising for consideration in the suit, the pleadings of which are sought to be amended, has nothing to do with the claim projected by him in O.S. 130/ 78. 4. The defendant opposed the amendment. He contended that the amendment if allowed, would change the character of the suit. He also contended that the dispute arising for consideration in the suit, the pleadings of which are sought to be amended, has nothing to do with the claim projected by him in O.S. 130/ 78. A dispute which is to be adjudicated upon by the arbitrator cannot be converted into a claim for recovery of damages in a suit, he submitts. A suit for recovery of damages is already time barred and therefore the amendment sought for is liable to be rejected. 5. The court below after considering the various aspects of the conflicting contentions of the parties, has dismissed the petition for amendment and it is the said order that is under challenge in this revision. 6. The question arising for consideration is this. whether the amendment sought for can be allowed? This question, apparently simple, can however be answered only if we understand the nature of the courts' jurisdiction under the law of arbitration. The law of Arbitration is primarily concerned with the questions whether the Court has jurisdiction to compel a party to arbitrate in accordance with the terms of the arbitration clause in a contract and honour the resulting award, whether the court can intervene to remedy injustice resulting from defects in the conduct of the proceedings by the arbitrator and so on Here we are concerned only with an aspect covered by the second question, which, to put it specifically is. has the civil court the jurisdiction itself to enquire into the merits of a dispute which was sought to be referred to arbitrator but could not, due to supervening circumstances. Now coming to the legal aspects: Jurisprudentially speaking an arbitrator it only a delegate of judicial powers which essentially are the property of the State. It is only a court which represents the judicial power, namely the power by which every State must of necessity have to decide controversies between its citizens or between itself and its citizens, whether the rights relates to life, liberty or property.) (See. Shell Co. v. Fed. Commissioners (1931 A.C. 275). It is only a court which represents the judicial power, namely the power by which every State must of necessity have to decide controversies between its citizens or between itself and its citizens, whether the rights relates to life, liberty or property.) (See. Shell Co. v. Fed. Commissioners (1931 A.C. 275). One of the attributes of a court is the judex, or the judicial power, for the purpose examining the truth of the fact alleged by the parties namely the plaintiff and the defendant and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy. (See Stepney quoted in Brinjnandan v. Jyoti Narain, (1955(2) SCR.955 at 961). In short the courts are repositories of judicial powers, subject to the divesting of the power by the State, the proprietor of this power. Here comes the relevance of the law of arbitration which is mainly procedural in content. The modern rules of arbitration, have made it possible for the court to have the dispute arising under a contract between citizens, between instrumentalities of State and citizen and so on referred to arbitrator for decision in terms of the arbitration clause. In such cases there is what is called a renunciation of the jurisdiction by the court, competent to decide the dispute. But this renunciation is only provisional. Until a valid award is passed, the court retains its jurisdiction, which, on the arbitration being proved abortive will be survived, enabling the court to hear and decide the dispute on merits. I am fortified in this view by the ruling of the House of Lords in Hamlyn & Co. v. Talisker Distillery (1894 A.C. 202). The House of Lords observed:? "The jurisdiction of the Court is not wholly ousted by such a contract Should the arbitration, from any cause, prove abortive the full jurisdiction of the court will survive, to the extent of enabling it to hear and determine the action upon its merits". The jurisdiction of a court to decide the dispute arising out of a contract which contains an arbitration clause thus is not ousted merely because the parties have contracted to refer the said dispute to arbitration. 7. The jurisdiction of a court to decide the dispute arising out of a contract which contains an arbitration clause thus is not ousted merely because the parties have contracted to refer the said dispute to arbitration. 7. It is in recognition of this common law principle, in my judgment, the legislature enacted S.25, 34 and 35 (to mention only few of them) of the Arbitration Act. The proviso to S.25 provides that the court may in any of the circumstances mentioned in S.8,10,11 and 12, instead of filling up the vacancies or directing the appointments, make an order superseding the arbitration and proceed with the suit, and where the court makes an order superseding the arbitration under S 19 it shall proceed with the suit. Construing S.34 courts have consistently been holding that if neither party to the contract wants to have recourse to arbitration in terms of the arbitration clause, the ordinary civil courts can resume the powers suspended provisionally and decide the dispute on merits. 8. It is therefore clear from the scheme of the Arbitration Act that, should the arbitration, from any cause, either proves abortive or becomes impracticable, the powers of the court will revive and thereafter it is by its decision and by its decision alone, the rights of the parties are settled (See Russell on Arbitration). In short it is not only the privilege of the court but it is its duty also "to come to the assistance of the parties by the removal of the impasse and the extrication of their rights". (See the decision of the Privy Council in Cameron v. Cuddy, 1914 A.C. 651). 9. The Privy Council in Cameron has observed thus:? "When an arbitration for any reason becomes abortive, it is the duty of a Court of law, in working out a contract of which such an arbitration is part of the practical machinery, to supply the defect which has occurred. It is the privilege of a Court in such circumstances and it is its duty to come to the assistance of parties by the removal of the impasse and the extrication of their rights. This rule is in truth founded upon the soundest principle, it is practical in its character, and it furnishes by an appeal to a Court of justice the means of working out and of preventing the defeat of bargains between parties" (emphasis supplied). 10. This rule is in truth founded upon the soundest principle, it is practical in its character, and it furnishes by an appeal to a Court of justice the means of working out and of preventing the defeat of bargains between parties" (emphasis supplied). 10. Having understood the rule the court has to play under the Arbitration law thus, let us try to get the answer to the question, whether the amendments sought for could be allowed? It is clear from the facts available on record that the arbitration has become abortive in view of the judgment of this court dismissing the application of the petitioner under S.34 of the Arbitration Act for stay of the suit, O S.130/78. The reliefs sought for in O. S.107/78 therefore have become impossible to be granted. The dispute sought to be referred and highlighted in the suit instituted by the petitioner is intimately connected with the dispute arising for consideration in the suit (O.S.130/ 78) instituted by the defendant. The amount claimed by the petitioner in O.S.107/78 cannot now be put as a counter claim in the suit instituted by the respondent because of certain legal impediments. The suit, O.S.107/78 instituted by the plaintiff contains all the particulars that should contain in a regular suit. Whether the suit is one under S.20 or a regular suit the cause of action is the same. The difference between a suit filed under S.20 and a regular suit is only in regard to the reliefs prayed for. In a suit under S.20 the relief prayed for is that the claim be referred for the decision of the arbitrator whereas in the regular suit, the prayer is that a decree for the claim be passed. The suit under S.20 in my view, is in the nature of a regular suit. A similar view has been expressed by Metha, J. of the Gujarat High Court. (See M/s. Korthari & Associates, Baroda v. State, AIR. 1985 Gujarat 42). Here the learned judge was considering the question whether O.2 R.2 and 3 would apply to proceedings under S.20 of The Arbitration Act. A similar view has been expressed by Metha, J. of the Gujarat High Court. (See M/s. Korthari & Associates, Baroda v. State, AIR. 1985 Gujarat 42). Here the learned judge was considering the question whether O.2 R.2 and 3 would apply to proceedings under S.20 of The Arbitration Act. The learned judge after considering the various aspects of the question held thus: "The claim before the arbitrator is clearly in the nature of a suit and instead of a Civil Court adjudicating upon the claim a separate from of arbitrator adjudicates upon the same claim" Observing thus the learned judge held that 0.2 R.3 enables the plaintiff in a suit under S.20 "to include and unite in the same claim several causes of action against the defendant". While holding so the learned judge dissented from the contra views expressed in Brijlal Jagannath v. Allah Ditta (AIR. 1925 Sind 242). Bal Mukund v. Gopiram (AIR. 1924 Cal. 808 (2)), Kerorimall v. Union of India (AIR. 1964 Cal. 545), and M/s. Alkarma, New Delhi v. Delhi Development Authority, New Delhi (AIR. 1981 Delhi 230). but relied on Jiwnani Engineering Works Pvt. Ltd. v. Union of India (AIR. 1978 Cal. 228) and Munshi Ram v. Ranwarilal (AIR. 1962 SC. 903). With respect I agree with the views expressed by the learned Judge. It should in this connection be remembered that Order VI R.17 CPC. granting power of amendment to courts, was enacted with the object of doing full justice to the parties to litigations and not to punish them. Order VI R.17 thus is a special provision of completes wisdom. That the principle that not only this provision but the Civil Procedure Code in its entirety, would apply to arbitration proceedings, no more can be doubted in view of the decision of the Supreme Court in Hakam Singh v. M/s. Gasman (1971 (1) S. C. C. 286). The Supreme Court has stated that "The Code of Civil Procedure in its entirety applies to the proceedings under the Arbitration Act". (See also S.41 of the Arbitration Act) Amendment sought for by the petitioner therefore requires to be granted. It is all the more so because by allowing the amendment, the court, as observed by Lord Shaw of Dunfermline in re Cameron would come to the assistance of the petitioner/plaintiff by the removal of the impasse and the extrication of their rights'. 11. It is all the more so because by allowing the amendment, the court, as observed by Lord Shaw of Dunfermline in re Cameron would come to the assistance of the petitioner/plaintiff by the removal of the impasse and the extrication of their rights'. 11. The respondent, however, has opposed the amendment. It has therefore become necessary to recapitulate the principles governing the subject. There are some well established principles and they are: All amendments generally are permissible especially when they are necessary for determination of the real controversy in the suit. But at the same time substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible especially when the new cause of action is barred. Similarly introduction by amendment of inconsistent or contradictory allegations which would set at naught the admitted position of facts or mutually destructive allegations of facts are also impermissible although inconsistent pleas on the admitted position can be allowed by way of amendment. To put it pitiably the amendment shall not cause prejudice to the other side which cannot be compensated in terms of costs. The Supreme Court in A. K. Gupta & Sons v. Damodar Valley Corpn. (AIR. 1967 SC. 96), has observed: "Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is out weighed by the special circumstances of the case". In Shikharchand v. D.J.P. Karin Sabha (AIR. 1974 SC 1178) the Supreme Court has held thus:? "it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstance in order to shorten the litigation or (3) to do complete justice between the parties". (emphasis supplied) (See also Charan Das v. Amir Khan (AIR. 1921 PC. 50), and P.H. Patil v. K.S. Patil (AIR. 1957 (363)). 12. In the decision in Shati Kumar v. H. Ins. Co. New York (AIR. 1974 SC. (emphasis supplied) (See also Charan Das v. Amir Khan (AIR. 1921 PC. 50), and P.H. Patil v. K.S. Patil (AIR. 1957 (363)). 12. In the decision in Shati Kumar v. H. Ins. Co. New York (AIR. 1974 SC. 1719) the Supreme Court laid down that "in exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the court found that consideration of lapse of time is outweighed by the special circumstances of the case". 13. Applying these principles to the facts of the case, in my judgment, the amendment sought for ought to have been allowed by the court below. It is all the more so because it is not the case of the respondent-defendant that the cause of action will be changed. for that matter the respondent cannot contend for that position. It cannot also therefore be said that by allowing the amendment the plaintiff is allowed to agitate a cause barred by limitation. It is relevant in this context to bestow our attention on the indisputable fact that the defendant/respondent by filing O.S. 130/78 has proclaimed that be has no intention to honour the arbitration clause in the contract. This attitude of the respondent/ defendant in regard to the arbitration clause has been approved by this court by dismissing the appeal, the petitioner' had filed challenging the order of the court below dismissing its application under S.34 of The Arbitration Act. 14. To sustain its plea that the amendment would change the character of the suit, the defendant-respondent relied on a decision of the Delhi High Court in Sheel Chandra v. Central Bank of India (AIR. 1982 Delhi 179). On a reading of the ruling it is clear that the learned judge had no occasion to consider the principles of law stated above, which according to me clinch the issue, before the learned judge held that an application seeking conversion of arbitration proceedings into a regular suit, it not maintainable in law. With respect, I cannot agree with this view. 15. The amendment sought for, in my view, can in any event, be allowed by the court invoking the inherent power recognised under S.15I CPC. The facts already stated would show that unless the amendment is allowed, the petitioner (plaintiff) would suffer irreparable damages and injury. With respect, I cannot agree with this view. 15. The amendment sought for, in my view, can in any event, be allowed by the court invoking the inherent power recognised under S.15I CPC. The facts already stated would show that unless the amendment is allowed, the petitioner (plaintiff) would suffer irreparable damages and injury. As observed by the Supreme Court "the courts have power, in the absence of any express or implied prohibition to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases a gross miscarriage of justice", a. M. D Syndicate v. I. T. Commissioner AIR. 1977 SC. 1348). It should in this connection be remembered that the provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently providing the procedure for them. (See Mancharla v. Seth Hiralal, AIR. 1962 SC. 527). The court therefore could order the amendment in exercise of its inherent power recognised under S.151 provided the following conditions are satisfied: (1) the amendment, if not allowed, would result in gross mis-carriage of justice, (2) there does not exist any express or implied prohibition to order the amendment, (3) the circumstances highlighted by the facts do not bring it within the prescribed rule and (4) will not defeat a legal right accrued (to the opposite party) by lapse of time except when such consideration is outweighed by the special circumstances of the case. All these conditions, in my judgment, are satisfied here and therefore the amendment requires to be allowed. In this connection it is worth noting that there is nothing is the Code prohibiting the issue of an order allowing amendment of the. pleadings in circumstances not covered by Order VI R.17. A civil court therefore has ample jurisdiction to deal with and dispose of an amendment application in the exercise of the inherent jurisdiction recognised under S.151 CPC. The amendment sought for, therefor ought to have been allowed by the court below, at least in the exercise of inherent jurisdiction. 16. The petition, I.A. 885/86 is allowed. The court below shall pass appropriate orders enabling the plaintiff to carry out the amendment. The amendment sought for, therefor ought to have been allowed by the court below, at least in the exercise of inherent jurisdiction. 16. The petition, I.A. 885/86 is allowed. The court below shall pass appropriate orders enabling the plaintiff to carry out the amendment. The court below is further directed to dispose of the suits, O.S. Nos. 107 and 130 of 1978 as expeditiously as possible, in any event within four months from the date of receipt of a copy of the order. The CRP. is allowed in the manner indicated above. There will be no order as to costs. Allowed.