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2001 DIGILAW 605 (CAL)

AJIT KUMAR THAKUR v. UNITED INDIA INSURANCE CO

2001-09-18

GORACHAND DE

body2001
GORACHAND DE, J. ( 1 ) THE Court : This hearing arose out of a petition filed by the plaintiff praying for amendment of the plaint in the manner described in the petition. By the proposed amendment the plaintiff wants to change the description of the defendant No. 1 in the manner indicated hereinbelow: the existing description of the defendant No. 1 is :-"regional Manager, United India Insurance Co. Ltd. , an existing company within the meaning of the Companies Act, having its Regional Office, inter alia, at Himalaya House, 38/b, Chowringhee Road, Calcutta-700 071, within the Jurisdiction of Hon'ble Court. "after the proposed amendment, the description will be :"united India Insurance Company Limited, an existing Company within the meaning of the Companies Act, having its Registered and Head Office at 24, Whites Road, Madras- 600 014 outside the jurisdiction of this Hon'ble Court and Regional Office, inter alia, at Himalaya House, 38/b, Chowringhee Road, Calcutta-700 071, within the Jurisdiction of Hon'ble Court. " ( 2 ) IT is contended that due to bona fide mistake on the part of the learned advocate of the petitioner, certain errors crept in and those are required to be removed for proper and concrete adjudication of this suit and also for the ends of justice. ( 3 ) THE said petition is opposed by the defendant No. 2 after using an Affidavit-in-Opposition. The first attack is that the said amendment petition is not supported by any notice of motion within the meaning of Chapter XX Rule 3 of the Original Side Rules of the High Court at Calcutta. Secondly, it is contended that no Masters Summons was also taken out under the provisions of Chapter VI Rule 3 of the said Original Side Rules though the petition for leave to amend come under the purview of item No. 12 of Rule 11 of the said Chapter. Thirdly, it is contended that the petition being not supported by an affidavit, it is liable to be rejected in limine. Thirdly, it is contended that the petition being not supported by an affidavit, it is liable to be rejected in limine. The fourth attack is on the nature of the amendment and it is contended that if there is any mis-description about the defendant No. 1, the description of the officers appearing against defendant No. 1 and defendant No. 2 may be deleted and lastly, it is contended that by dint of the proposed amendment a new legal entity is going to be introduced thereby giving rise to a fresh cause of action and hence, the amendment should not be allowed inasmuch as the proposed cause of action is barred by limitation and a legal right has accrued to the defendants. On this score, the learned counsel for the defendant No. 2 placed reliance on a decision of the apex Court reported in AIR 1996 Supreme Court 2358 (Radhika Devi v. Bajrangi Singh and Ors. ). ( 4 ) THE first three grounds of attack are undoubtedly technical in nature and the remaining two grounds are with regard to the merits. ( 5 ) THE learned counsel appearing on behalf of the plaintiff made a forceful argument pointing out that the Rules of the Original Side cited hereinabove relate to the interlocutory matters to be transacted in chamber business. Since the amendment petition has been filed before the Court taking the ready suits for final disposal just before the commencement of the pre-emptory hearing after serving copy of the petition on the other side, taking out of notice of motion or masters summons is not mandatory and this Court is competent to entertain the petition. As regards the question raised with regard to supporting of the petition by an affidavit, it is contended by the learned counsel for the plaintiff that a petition for amendment of the plaint can be supported by a verification and supporting of the same by an affidavit is not mandatory. ( 6 ) ADMITTEDLY, the suit is pending in the list of final hearing of the suit and in course of opening of the suit, the plaintiff came up with the petition of amendment alleging that the description of the defendant No. 1 is not complete. ( 6 ) ADMITTEDLY, the suit is pending in the list of final hearing of the suit and in course of opening of the suit, the plaintiff came up with the petition of amendment alleging that the description of the defendant No. 1 is not complete. So the matter is not dealt with in chambers for which there is no necessity to take out notice of motion under Rule 3 of Chapter VI of the Original Side Rules. True it is that under Rule 3 Chapter XX of the Original Side Rules all application are to be made on motion after notice to the parties affected thereby. But in the same Rule 3, it is made clear that if there is provision in any statute, the rule is excepted. Under Order VI Rule 17 of the Code of Civil Procedure there is provision for amendment of the plaint and it can be filed at any stage of the suit. Since the percent amendment petition has been filed in the Court at the time of taking up of the suit for final disposal, the application of Rule 3 is excepted. Moreover, when the defendant filed Affidavit-in-Opposition against the said amendment petition after getting a copy of the said petition, it cannot be said that if the amendment petition is taken up for consideration it will entail irreparable or severe mischief to the defendant. ( 7 ) IT is also admitted that the amendment petition is supported by verification. Under Order VI Rule 17 of the Civil Procedure Code it is not mandatory to support such petition by an affidavit. Since the amendment petition is designed to amend the plaint, it is to be treated as a part of the pleading and can be supported by verification. There is nothing in the Code of Civil Procedure that the said petition is required to be supported by affidavit. So in view of the above discussion, the three technical objections raised by the learned counsel for the defendant No. 2 are overruled. The objections raised are undoubtedly hypertechnical in approach though the rule is that liberal approach should be the general rule in such cases of amendment. So in view of the above discussion, the three technical objections raised by the learned counsel for the defendant No. 2 are overruled. The objections raised are undoubtedly hypertechnical in approach though the rule is that liberal approach should be the general rule in such cases of amendment. In B. K. Narayan Pillai v. Parameswaran Pillai reported in (2000) 1 SCC 712 , the apex Court in paragraph 3 of the judgment took the following view :-"the purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Court and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But is equally true that the Courts while deciding such prayers should not adopt a hypertechinical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation. " ( 8 ) SO, respectfully accepting the principle adopted by the apex Court, it is concluded that the technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. ( 9 ) AS regards the two objections with regard to the merit of the present petition, it is to be noted that the suit has been instituted by the plaintiff claiming relief mainly against the United India Insurance Company Limited inasmuch as the insurance policy in question was issued by the Divisional Manager, Division No. IV, United India Insurance Company Limited who is made defendant No. 2 in the cause title. From the plaint itself as well as from the written statement filed by the defendant No. 2, it is sufficiently clear that the defendants are aware that the suit has been filed against the said insurance Company. From the plaint itself as well as from the written statement filed by the defendant No. 2, it is sufficiently clear that the defendants are aware that the suit has been filed against the said insurance Company. It is also to be noted that the defendant No. 1 and the defendant No. 2 was described respectively as the Regional Manager and Divisional Manager of the said insurance Company. But in fact the claim is not against any of the officers of that insurance Company in their personal capacity for which both the defendants have not been described by their name. By the proposed amendment an attempt has been made to correct the mis-description of the defendant No. 1. There is no attempt to introduce a new case or a new cause of action. At the risk of repetition it is to be stated that the suit has been filed mainly against the insurance Company and the entire plaint has been drafted accordingly and hence, there is no bar in correcting the mis-description of the defendant No. 1. On this score the learned counsel for the plaintiff rightly placed reliance on a decision of the apex Court reported in AIR 1964 Supreme Court 818 (Kurapati Venkata Mallayya and Anr. v. Thondepu Ramaswami and Co. and Anr. ). In this case there was a mis-description of the plaintiff in the cause title and in allowing the prayer for amendment of the plaint the apex Court took the view that such type of amendment should be allowed at any time for the purpose of showing the correct description, and the question of limitation would not arise in such a case. ( 10 ) RELIANCE was also rightly placed in another judgment of the apex Court reported in AIR 1967 Supreme Court 96 (A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation ). In this case the apex Court took the view that in the matter of allowing amendment of pleading 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. In this case the apex Court took the view that in the matter of allowing amendment of pleading 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. The apex Court further viewed that where 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. ( 11 ) A Division Bench of this Court in Bisweswar Bajpai and Ors. v. Jajneswar Bajpai and Anr. (AIR 1968 Calcutta 213) also took the view that in the matter of allowing amendments, the Court's power is not circumscribed by the law of limitation, if, in its opinion, the amendment should otherwise be allowed. ( 12 ) THE apex Court in Radhika Devi v. Bajrangi Singh and Ors. (supra) as relied upon by the learned counsel for the defendant No. 2 disallowed the prayer for amendment beyond the period of limitation mainly on the ground that the plaintiff appellant tried to challenge a Deed of Gift executed and registered on July 28, 1978 and disclosed by the defendants in their written statement filed on 15th June 1988, only on November 11, 1992, that is long after three years of the date of knowledge of the Deed of Gift. But the said principle is not applicable in the present suit inasmuch as neither a new cause of action is going to be introduced by the proposed amendment nor any attempt has been made to make out a different case opposed to the case made out in the original plaint. ( 13 ) THE predominant consideration for dealing with the application for amendment is whether it is necessary for determining the real question in controversy between the parties and whether the amendment can be allowed without injustice to the otherside. It is a settled principle of law that a power to grant amendment of pleadings is intended to serve the ends of justice and, as it is already discussed above, is not fettered by any narrow and technical limitation. It is a settled principle of law that a power to grant amendment of pleadings is intended to serve the ends of justice and, as it is already discussed above, is not fettered by any narrow and technical limitation. In a recent decision reported in (2001) 2 Supreme Court Cases 472 (Ragu Thilak D. John v. S. Rayappan and Ors.), the apex Court analysing the different cases starting from AIR 1921 PC 50 (Charan Das v. Amir Khan) upto the case of B. K. Narayana Pillai (supra) once again clarified the purpose and object of the Order VI Rule 17 of the CP Code and in allowing an application for amendment viewed that the dominant purpose of allowing the amendment is to minimise the litigation and that if the plea of limitation is disputed, it can be made a subject matter of the issue after allowing the amendment prayed for. ( 14 ) SO keeping in view the law on the point and also the grounds made out in the amendment petition, I hold and conclude that the proposed amendment should be allowed. However, the plea of limitation being disputed it can be made a subject matter of the issue. The petition for amendment is accordingly allowed. Liberty is given to the plaintiff to amend the plaint and to revivify the plaint within three weeks from this date subject to payment of cost of 30 G. Ms. to the defendant No. 2 for this belated petition. The Registrar, Original Side and all parties to act on a signed copy of the operative portion of this judgment. Petition allowed