Case: Muni Lal Vs. Oriental Fire &amp; Genl.Insurance Co.

The admitted facts are that the appellant had got insured his truck bearing registration No. HPA 6288 with the respondent No. 1 on March 28, 1983. During the course of employment of carriage of goods, the truck handed over to the driver on October 7, 1983 was not returned to the appellant. Thereby he lost the truck by an act of misfeasance of the driver. The appellant in the interregnum had the insurance renewed on April 19, 1984 operative upto April 18, 1985. On July 9, 1984, the appellant demanded payment of insured amount due to loss of the truck which liability was disclaimed by the respondents through their letter dated December 31, 1984. After exchange of legal notice and reiteration of denial thereof, case No. 34 of 1986 was instituted in the Court of the Chief Judicial Magistrate, Solan, District Solan, Himachal Pradesh, seeking a declaration that the appellant is entitled to the total loss of the truck from the Insurance Company. The Trial Court by its judgment and decree dated July 23, 1988 dismissed the suit holding that the suit for mere declaration without consequential relief for payment of compensation for the loss of truck or specified amount of compensation from the respondents was not maintainable. On appeal, the District Judge in case No. 138-S/13 of 1988 by judgment and decree dated June 16, 1990 confirmed the same which was further affirmed by the High Court in Second Appeal No. 432/90 by judgment dated November 27, 1990.

Reasoning:
It is seen that the ratio of Jagdish Singh v. Natthu Singh, JT 1991 (5) SC 400 is also inapplicable to the facts of this case. That case relates to a suit instituted for specific performance but without abandoning the relief of specific performance alternate relief for damages was also sought for. This Court relying upon the proviso to(5) of Section 21 of the Specific Relief Act which expressly gives power to the Court to grant amendment of the pleadings at any stage of the proceeding, permitted amendment of the plaint seeking alternate relief. The ratio therein is clearly distinguishable and does not apply to the facts of this case.6. On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of the specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court. Considered from this perspective, we are of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the courts below had not committed any error of law warranting interference.