Civil Revision No. 2558 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2558 of 1994 Date of Decision: May 07, 2009 Shri K.Sethi .......Petitioner Versus M/s Mascot Enterprises and others .......Respondents CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.BR Mahajan, Advocate and Ms.Naina Goel, Advocate for the petitioner. ... JITENDRA CHAUHAN, J. 1. This revision petition has been filed against the order dated 5.2.1994 passed by the learned Sub Judge Ist Class, Amritsar, whereby the amendment in the plaint for impleadment of the petitioner was allowed. 2. The facts of the case, in brief, are that the suit for recovery of certain amount for the alleged purchase of wine, whisky/beer from it (plaintiff's firm) against various bills, between 1.4.1985 to 8.3.1986 was originally filed by the plaintiff against three respondents, namely, Surinderjit Singh, Ram Nath, and K.Sethi, defendants No.1 to 3. 3. In the application for amendment, it was averred that actually defendants No.2 and 3 were the partners with defendant No.1 – M/s Surinderjit Singh & Company and, therefore, the amendment was necessary to implead the defendant-petitioner. The application was contested by the Civil Revision No. 2558 of 1994 2 defendant-petitioner on the ground that the case was at final stage and the amendment could be sought only at the preliminary stage. It was further the stand of the defendant-petitioner that defendant No.1-Surinderjit Singh had already been given up and nothing had been claimed against him as per the statement earlier made by the learned counsel for the plaintiff and Sri Ram, partner of the plaintiff. The defendant-petitioner was given up on 20.10.1987 and, as such, the amendment could not be allowed. It was further denied that defendant No.3 was ever a partner of defendant No.1 or that he ever purchased goods from the petitioner. 4. The suit was contested by defendants Ram Nath and K.Sethi by filing written statement, wherein averments were made that no amount was due from them and they had nothing to do with the business of wine being carried out by defendant No.1- Surinderjit Singh. On the basis of the pleadings of the parties, the issues were framed by the trial Court on 4.5.1988. No evidence was produced by the plaintiff-respondent for years and ultimately, after examining four witnesses the evidence was closed on 5.5.1993. 5. The application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint to implead M/s Surinderjit Singh as defendant No.4 in the case and to add status of Ram Nath and K.Sethi, defendants No.2 and 3 as partners of Surinderjit Singh & Company in the array of parties was filed. Further prayer was made to add para 3-A in the plaint to the extent that the firm-defendant No.1 had been purchasing goods from the plaintiff and the defendants were partners of the said firm and were liable to make payment of the amount to the plaintiff. 6. Learned counsel for the petitioner submits that on 20.10.1987 Civil Revision No. 2558 of 1994 3 Surinderjit Singh appeared in the Court and made a statement that the wine was purchased by Ram Nath and Kewal Sarup and as per the partnership, the liability to pay the amount rest upon Ram Nath and Kewal Sarup. On the statement made by Surinderjit Singh, the plaintiff gave up his claim against Surinderjit Singh, defendant-respondent No.1, as he had already recovered the amount from defendants No.2 and 3. The statement of Sri Ram, partner of the plaintiff-firm and learned counsel for the plaintiff reads as under: “I gave up my claim against Surinderjit Singh, defendant. I have not to take any amount from Surinderjit Singh. I have to take amount from defendant Nos.2 and 3.” 7. Learned counsel appearing for the petitioner submitted that the trial Court allowed the application filed by the plaintiff-respondent without appreciating the facts on record saying that making of the statement by the plaintiff-respondent in regard to giving up claims against Surinderjit Singh could not debar the plaintiff from impleading the firm as party and the effect of making statement of giving up Surinderjit Singh originally would be seen at the time of final decision of the suit and also that the question, whether the claim against the newly added defendants was barred by time, would also be seen after the respondents put in their appearance and file written statement. 8. Learned counsel for the petitioner submits that the trial Court ignored that claim in the suit which was originally raised against Surinderjit Singh, Ram Nath and K.Sethi. Thereafter, claim against Surinderjit Singh was given up and the statement to that effect, duly reflected in para 3, was made in the Court and the amount was to be recovered from Ram Nath and Civil Revision No. 2558 of 1994 4 K.Sethi. By way of the amendment application, the whole cause of action was changed because firm M/s Surinderjit Singh & Company was made liable to pay the amount and other defendant Surinderjit Singh against whom the claim was specifically given up was made liable to pay the amount as the partners of the firm. In this manner, the cause of action was entirely changed which could not have been allowed, particularly, when the suit was more than seven years old and the petitioner was being harassed on account of frivolous and vexatious suit filed against him. The trial Court ignored the fact that by allowing their amendment application, the entire cause of action stood changed and the suit had to be tried afresh. As the petitioners were earlier party in their individual capacity, now they will have to file their written statement contesting their liability having the status of the partners of the newly added firm. It was further submitted that the trial Court ignored the fact that the suit was time barred against the firm which was sought to be impleaded/added as party and, therefore, no amendment could have been allowed. 9. I have heard learned counsel for the petitioner. 10. The plaintiff-respondent originally filed the suit on 10.3.1987 against Surinderjit Singh, Ram Nath and K.Sethi for recovery of Rs.40,039.58p. The application for amendment to implead the petitioner as partner of the firm, was filed on 19.7.1993 i.e. after a period of more than six years. It is relevant to note that the suit was originally filed against three persons whereas in the application moved under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint, the claim has been raised against the firm of which the petitioner also has been named as one of the partners. There is a specific denial of the petitioner that he did not have Civil Revision No. 2558 of 1994 5 any business transaction with the plaintiff-firm. 11. The amendment under Order 6 Rule 17 of the Code of Civil Procedure to add new party against whom limitation had already run out, should not be allowed unless there are special considerations. 12. As per principles established by the judicial decisions in respect of amendment of plaint, mainly, are: i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit. ii)All the same, 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. iii)Introduction by amendment of in consistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment. iv)In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs. v) 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 outweighed by the special circumstances of the case.” 13. Hon'ble Supreme Court in Vishwambhar and others v. Laxminarayan (dead) through Lrs. and another, 2001(3) RCR (Civil) Civil Revision No. 2558 of 1994 6 815 (SC) observed as under: “Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be fled after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, 5.11.1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint.” 14. In this context, this Court in Bhawani Dass v. Kaushalya Rani, AIR 1981 Punjab and Haryana 196 observed in para 7 as under: “Reverting back to the facts of the present case, we find that there were two angular expressions in the copy, of the sale deed to the effect that the land had been sold in equal shares and the possession had been given to the vendees. These expressions, if read in a cautionary trend would have put the plaintiff to alert that there was likelihood of more than one vendee and the name of the sole vendee mentioned in the certified copy of the sale deed, could be misleading. If the plaintiff became wiser by the name of one vendee from the sale deed, it is difficult to reconcile that the suspicious expressions used therein would have escaped his notice. The plaint was filed on 6th June, 1979, hardly a week before the expiry of the period of limitation. The objection had been taken in the Civil Revision No. 2558 of 1994 7 written statement on 8th Feb. 1980. Despite that the amendment was sought on 4th April, 1980. By the time the amendment was sought, the period of limitation of the suit had expired. It is thus neither a case in which the amendment sought for was to supply omission of a detail of property comprised in the sale or to clarify a misdescription of the name of a party already sued as defendant. The details of the omitted defendant could easily be gathered, if the certified copy of the sale deed had been read with due care and attention putting the plaintiff to the run, to get it corrected from the office of the Sub-Registrar, or to verify the names of the vendees from the revenue records with regard to the possession, or ownership or both over the suit land.” 15. In the present case, the suit was filed on 10.3.1987. The proposed amendment was sought on 19.7.1993. Thus, the proposed amendment is clearly time barred and could not have been allowed by the trial Court. Apart from the fact that the proposed amendment being time barred, if the amendment is allowed to be carried out, it would amount to change of the subject matter of the controversy in the suit, which, in the opinion of this Court is not permissible. Therefore, the amendment under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure would result in changing the entire cause of action necessitating a fresh trial. 16. The order passed by the learned Sub Judge Ist Class, Amritsar suffers from legal infirmity warranting interference by this Court in exercise of its powers under Section 115 of the Code of Civil Procedure. 17. For the reasons recorded above, the revision petition is allowed and the impugned order dated 5.2.1994 is set aside. 18. Since further proceedings in the suit were stayed by this Court vide order dated 9.9.1994, the trial Court is now directed to proceed with Civil Revision No. 2558 of 1994 8 the case and dispose of the same in accordance with law. As the suit pertains to the year 1987 and is now more than two decades old, the trial Court is directed to dispose of the same expeditiously. ( JITENDRA CHAUHAN ) May 07, 2009 JUDGE SRM Note: Whether to be referred to reporter? Yes/No