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2002 DIGILAW 386 (PNJ)

Narinder Singh v. Food Corporation of India

2002-04-09

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 28.2.2002 passed by the Civil Judge (Junior Division), Ludhiana allowing the application of the plaintiff-respondent for amendment of the plaint which sought to incorporate in the body of the plaint the name of another contractor Devi Chand which was omitted at the time of filing of the suit. 2. Brief facts of the case are that the plaintiff-respondent has filed a civil suit No. 347 of 12.9.1989 for recovery of Rs. 1,45,135.20 against the defendant-petitioner alleging breach of terms of contract and failure to perform work of Handling and Transport Contractor at Food Storage Depot Chawa Payal in accordance with the terms and conditions of the contract entered between the parties. Further averments made in the suit are that the plaintiff-respondent Corporation had to pay extra sum of Rs. 1,45,135.20 to subsequent contractors and name of one contractor Shri Daulat Ram was mentioned. As a matter of fact, both Daulat Ram and Devi Chand were appointed as subsequent contractor at the rate of 105% and 115% respectively. However, in the body of the plaint, the plaintiff-respondent corporation omitted to mention the name of Devi Chand which was sought to be incorporated by moving an application under Order 6 Rules 17 of the Code of Civil Procedure, 1908 (for brevity, the Code). The Civil Judge who considered the rival contentions allowed the application by observing as under: "I have heard the learned counsel for parties, and have gone through the record carefully. The plaintiff wants to add the name of Sh. Devi Chand as subsequent contractor in the body of the plaint which is admitted by the defendant that this fact came into the knowledge of the plaintiff at the time of cross-examination of the PWs. Moreover, no prejudice would be caused to the defendant if the proposed amendment be allowed. Rather, it will be in the interest of justice, if the proposed amendment be allowed. Moreover, the defendant can be compensated with costs. Accordingly, the application is allowed subject to cost of Rs. 800/-. Nothing said in this order shall cause prejudice on the merits of the main case." 3. Shri Sameer Sachdeva, learned counsel for the defendant-petitioner has argued that the amendment has been allowed after huge delay as the suit was filed some time in 1989. Accordingly, the application is allowed subject to cost of Rs. 800/-. Nothing said in this order shall cause prejudice on the merits of the main case." 3. Shri Sameer Sachdeva, learned counsel for the defendant-petitioner has argued that the amendment has been allowed after huge delay as the suit was filed some time in 1989. According to the defendant-petitioner such an amendment would not only prejudice the right of the defendant-petitioner but would also change the nature of the suit. 4. Having heard learned counsel and perusing the record, I am of the considered opinion that this revision petition lacks merit and is, thus, liable to be dismissed. It has been observed by the Supreme Court in case of Prem Bakshi v. Dharam Dev, (2002-1)130 P.L.R. 558 that allowing the amendment under order VI rule 17 of the Code would not cause any prejudice because ample opportunity is given to the other side to controvert the averment made by way of amendment. The observation of Their Lordships reads as under :- The proviso to sub-sections (1) and (2) with explanation was added by the amending Act of 1976. By this amendment the power of the High Court was curtailed, by the intention of the legislature being that High Court should not interfere with each and every interlocutory order passed by the trial Court so that the trial of a suit could proceed speedily and that only the interlocutory order coming under Clause (a) or (b) of the proviso would be entertained by the High Court." Their Lordships also considered clauses (a) and (b) of the proviso as well as explanation to sub-section (2) and observed as under : "4. In Major S.S. Khanna v. Brig. F.J Dhillon, (1964)66 PLR 115 (SC) this court considered the expression "any case which has been decided" in sub- section (1) of Section 115 CPC and held that the expression case is a word of comprehensive import and includes civil proceedings other than suits and is not restricted by anything contained in the said section to the entirety of the proceeding in a civil court and to interpret the expression case as an entire proceeding only and a part of the proceedings would impose an unwarranted restriction on the exercise of powers of superintendence by the High Court. This view of the High Court has now been legislatively adopted by the Parliament by introducing the explanation to sub-section (1) of Section 115 CPC and, therefore, an interlocutory order would be revisable. There is no doubt that present order being an interlocutory order is revisable under Section 115, but for exercising powers under this Section by the High Court, the order must satisfy one of the conditions mentioned in clauses (a) and (b) of the proviso. 5. The proviso to sub-section (1) of Section 115 puts a restriction on the powers of the High Court in as much as the High Court shall not under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (1) the order made would have finally dispose of the suit or other proceedings or, (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under clause (a), the High Court would be justified in interfering with an order of a subordinate court if the said order finally disposes of the suit or other proceeding. By way of illustration we may say that if a trial court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a). 6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent No. l. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice of irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decision on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decision on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party." 5. The argument, that there has been huge delay in seeking amendment of the plaint does not require serious consideration because the delay can be considered fatal in a case where the suit itself would be barred. However in the present case the filing of the suit against the defendant-petitioner would be barred because the suit had already been filed against him and it is only adding the name of Devi Chand to show that subsequently Devi Chand was also engaged and paid much more than what have been paid to the defendant- petitioner. Therefore, no prejudice would be suffered by the defendant- petitioner if name of Devi Chand is allowed to be added by way of amendment. Hence, the revision petition is devoid of any merit and is liable to be dismissed. 6. For the reasons recorded above, this revision petition fails and is dismissed. Petition dismissed.