Case: A. K. Gupta And Sons Vs. Damodar Valley Corporation

refer to what was said by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214: (AIR 1922 PC 249). In that case the Privy Council had to consider whether the amendment allowed by the Judicial Commissioner, on appeal against the order of the District Judge, could be allowed in law or not. It observed at p. 216 (of Ind App) : (at p. 250 of AIR):"All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another nor to change, by means of amendment, the subject-matter of the suit." It was held that the claim after amendment would be based on a different cause of action from that on which the original claim was based and, therefore, was not the real question in controversy between the parties in that suit. To allow the new claim would be to go outside the provisions of O. 6, R. 17, C. P. C. 38. I may now consider whether the facts of the present case are such as would justify the amendment of the plaint sought by the plaintiff-appellant. The plaint in the present case gives no facts which are necessary to establish before the plaintiff can get a decree for Rs. 65,000 or which may justify a decree for accounting. The schedule, attached to the tender, Annexure A, shows that different rates of payment were agreed upon on different basis as unit of calculation for different type of work. The plaint nowhere indicates the amount of work done under each category and unless the plaintiff sets out the amount of work done he cannot certainly make out any claim for payment to him. It is said that the amount due to the plaintiff can be worked out on accounting on the basis of the bills tendered by him and to which the defendant had not raised any objection. No reference to such bills has been made in the plaint. Nothing is said in the plaint that the defendant had agreed to the bills tendered. To allow the amendment of the plaint would necessarily lead to a further request for the furnishing of these details about the work done and that would necessarily lead to the defendants being afforded an opportunity to put in a further written statement in connection with the fresh facts which would come on the record. In fact the amendment sought would necessitate practically a de novo trial on the question as to what amount the plaintiff is entitled from the defendant on account of the work done. The amended claim cannot be decreed on the facts on the record. 39. When the plaintiff cannot get the relief, sought to be added as a result of the amendment on the facts mentioned in the plaint originally, it is clear that the cause of action for a decree for Rs. 65,000 is different from the cause of action on which the suit for declaration was founded. For the suit as originally instituted the plaintiff had merely to prove the terms of the contract between the parties and to show that his interpretation of these terms was the correct one and that interpretation justified the declaration sought. A suit based on one cause of action cannot be allowed to be changed into a suit based on another cause of action. 40. It cannot be said that the plaintiff intended to sue the defendant for the recovery of Rs. 65,000 but failed to express himself clearly in the plaint and that, therefore he be allowed to make the plaint precise and clear in that regard. The plaintiff knew that he could make a claim for money and in Para. 14 reserved the right under O 2, R. 2, C. P. C. to omit to sue in respect of that amount that be found due upon interpretation placed by him on CL 17 of the tender. This indicates that he did not intend to sue for the amount due to him and that he anticipated the possibility of later suing for the recovery of the amount deliberately not sued for in the suit. This circumstance also justified the rejection of his prayer for amendment. The fact that the trial Court, by its judgment, allowed leave under O. 2, R. 2 of the Code to sue for the amount due subsequently is no circumstance to justify the amendment now sought. The omission of the defendant to press any objection against the prayer of the plaintiff for leave under O. 2, R. 2 is not such a special circumstance which should justify the amendment sought. Leave under O. 2, R. 2 can be sought by the plaintiff and can be given by the Court with respect to a plaintiffs not suing for certain relief arising out of the same cause of action as sub-r. (3) provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not, afterwards, sue for any relief omitted. It has been shown above that the cause of action for the relief of declaration was different from the cause of action for the claim of money. The relief for the money due did not arise from the cause of action on which the relief for declaration was based. 41. I am, therefore, of opinion that the High Court was right in not allowing the amendment sought by the plaintiff. The appeal, therefore, fails and I would dismiss it with costs. ORDER

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case?We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellants legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially affect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made11. This, therefore seems to us to be pre-eminently a case for allowing the amendment. The authorities also lead us to the same view. In L. J Leach and Cos case, 1957 SCR 438  : (AIR 1957 SC 357  ), a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand being already in the plaint. In Charan Dass case, 47 Ind App 255: (AIR 1921 PC 50) an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to pre-empt. In the last mentioned case, the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that claim to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing of mistakes is, of course, not administration of justice12. It is true that the plaint does not set out the details of the work done. But there never was any dispute about them. Indeed the respondent had prepared a final bill of the appellants dues for the work done under the contract and the appellant had accepted that bill as correct except on the question as to the proper rate chargeable under the clause. Strictly the details of the work done were not necessary in the plaint for it would be a waste of time of a court to go into them, it not being unusual to direct an enquiry by a commissioner or a subordinate officer about such details when as in the present case, the items of work done are innumerable. It would be enough in such cases to file the details before the authority making the enquiry. Besides, in Pirgonda Hongonda Patis case, 1957 SCR 585 (AIR 1957 SC 363)  , in a suit for a declaration of title, this Court permitted an amendment setting out the detailed facts on which the title was claimed after the suit had become time barred. The absence of the details of the work does not furnish a legitimate ground for refusing the amendment13. It may be that as a result of the amendment, if the respondent chooses to raise a controversy about the work done, that is, about the quantity, quality and other things concerning it, which it had never raised so long the matter will have to be gone into. That again would not justify a refusal of leave to amend. It would not mean any waste of time or money or any duplication of work. That investigation would now be made for the first time and nothing done so far would become futile. Such an enquiry was indeed directed in L. J. Leach and Co.s case. 1957 SCR 438  : (AIR 1957 SC 357  )14. The amendment sought is necessary for a decision of the real dispute between the parties which is what are their rights under the contract ? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. Only through a misconception a relief which could be asked on those facts had not been asked. It would not have been necessary to ask for it unless the plaintiff had at a late stage taken the point that the suit should fail without more in the absence of that relief. We find the present case indistinguishable from Charan Dass case, 47 Ind App 255: (AIR 1921 PC 50).