MUNI LAL v.

THE ORIENTAL FIRE AND GENERAL INSURANCE

COMPANY LTD. AND ANR.

NOVEMBER 9, 1995

[K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.]

Code of Civil Procedure, 1908: Order 6 Rule 17.

Pleadings-Amendment-Pennissibility of-Loss of t1uck-Declarat01y suit against Insurance Company-No consequential relief of specified amount claimed-Dismissal of-Application for amendment of plaint in the appellate Court for consequential relief-On the date of amendment application relief ba1red by limitation-Amendment seeking to introduce altemative relief of specified amount held bad in law.

Specific Relief Act, 1872 : Section 34--Proviso.

Declarat01y suit-Seeking mere declarati01r-Failure to claim consequential relief-Effect of

E Contract Act, 1872: Section 28.

Agreement-Prescription of limitation timr-Shorter than that presoibed in the Limitation Act-Such an agreement is void.

The appellant lost his truck in October, 1983 by an Act of mis- F feasance of1iis driver. The said truck was insured with the respondent-Insurance Company and the insurance was renewed on 19th April, 1984 for one year. As the respondent disclaimed the liability to pay the insured amount, the appellant filed a suit in 1986 seeking declaration that he was entitled to the payment for loss of the truck in terms of the insurance contract. However, no consequential relief of payment of the .quantified G amount was claimed. The Trial Court 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. In the appellate Court an application was filed under Order 6 Rule 17 of the Code of Civil Proce- H dure, 1908 for amendment of plaint seeking consequential relief but the 42

MUNI LAL v. ORIENTAL FIRE AND GEN. INSURANCE CO. LTD. 43

same was dismissed on the ground that the suit was barred by limitation. A The High Court affirmed the decision of the appellate Court.

In appeal to this Court it was contended for the appellant that (i) by operation of section 28 of the Contract Act, limitation of one year prescribed in Clause 8 of the contract was void and therefore the appellant may sue within three years from the date of discovery of the loss of the vehicle; (ii) the courts below erred in rejecting the claim by holding that suit was barred by limitation when the same was initially instituted within limitation.

Dismissing the appeal, this Court

HELD : 1. 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. Granting of amend ment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief D was available to be asked for when the suit was filed but not made.

Appellant 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. [ 48-D; B-C]

2. It is true that section 28 of the Contract Act prohibits prescription of shorter limitation than the one prescribed in the Limitation Act. An agreement which provides that a suit should be brought for tle breach of any term of the agreement within a time shorter than the period of limitation prescribed by law is void to that extent. The reason being that such an agreement is absolutely to restrict the parties from enforcing their rights after the expirution of the stipulated period, although it may be within the period of general limitation. But acceptance of the contention that by operation of section 28 of the Contract Act limitation of one year prescribed in the contract was void does not per force solve the controversy

in this appeal. Proviso to section 34 of the Specific Relief Act mandates the Court to refuse to grant the declaratory relief if there is omission to G claim consquential relief. In this appeal, the appellant has merely asked for a declaration but not the consequential relief. The question, therefore, is whether the amendment could be ordered in this background. Order 6 Rule 17 C.P.C. envisages amendment of the pleadings. The court may at any stage of the proceedings allow either parties to alter or amend his H

A pleadings in such manner and on such terms as may be just and all such amendments shall be as may be necessary for the purpose of determining the real question of controversy between the parties. Therefore, granting of amendment on such terms is also a condition for the purpose of determining the real question in controversy between the parties. The B , amendment to grant consequential relief sought for in this case, is as envisaged in proviso to section 34 of the Specific Relief Act, 1963. That relief was, however, available to the appellant, to be asked for, when the suit was filed. By the date the application for amendment was filed, the relief stood barred by limitation~ [45-F-H; 46-D-G]

C Vineet Kumar v. Mangal Sain Wadhera, [1984] 3 SCC 352; Pusupuleti

Venkateswarlu v. 11te Motor & General Traders, [1975] 3 SCR 958 and Jagdish Singh v. Natt/tu Singh, AIR (1992) SC 1604, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10337 of 1995.

From the Judgment and Order datd 27.11.90 of the Himachal Pradesh High Court in R.S.A. No. 432 of 1990

R.K. Khanna for Surya Kant for the Appellant.

E Vineet Kumar and Neeraj Sharma for the Respondents.

The following Order of the Court was delivered :

Leave granted.·

We have heard the counsel on both sides. The admitted facts are that the appellant had got insured h~ 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 A 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 B 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.

Mr. R.K. Khanna, learned counsel after thorough preparation of the case and with all pursuation contended that by operation of section 28 of C the Contract Act, limitation of one year prescribed in Clause 8 of the contract is void. The appellant may sue within three years from the date of discovery of the loss ·~ the vehicle. The courts below, therefore, were not justified in dismissing the suit. He contended that since the appellant claimed declaration of the entitlement, an application under Order 6, Rule D 17 C.P .C. was filed in the appellate Court seeking consequential relief and that the District Judge and the High Court were not, therefore, right in rejecting the claim holding that the suit is barred by limitation and when the suit was initially instituted within limitation. Consequently, the relief, though during the course of the proceeding be barred by limitation, being incidental to the grant of the declaration, the appellant cannot be denied E of the consequential relief. The District Judge and the High Court were not right in refusing to permit amendment of the plaint.

The question, therefore, is whether the appellant had properly framed the suit and whether the claim is barred by limitation. It is true, as F rightly pointed out by Sri Rakesh Khanna, that section 28 of the Contract Act prohibits prescription of shorter limitation than the one prescribed in the Limitation Act. An agreement which provides that a suit should be brought for the breach of any terms of the agreement within a time shorter than the period of limitation prescribed law is void to that extent. The G reason being that such an agreement is absolutely to restrict the parties from enforcing their rights after the expiration of the stipulated period, although it may be within the period of general limitation. But acceptance of that contention does not per force solve the controversy in this appeal.

Sect;')n 34 of the Specific Relief Act provides that any person entitled to a legal character, or to any right as to any property may, institute a suit H

A against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make such declararion and the plaintiff need not ask for such relief. However, proviso to the said Section puts the controversy beyond pale of doubt that "no courts shall make any such declaration where the plaintiff, being able to ask for other relief than a

mere declaration of title, omits to do so". In other words, mere declaration

without consequential relief does not provide the needed relief in the suit, it would be for the plaintiff to se 1r both the reliefs. The omission thereof mandates the Court to refuse to grant the declaratory relief. In this appeal,

I the appellant has merely asked for a declaration that he is entitled to the payment for the loss of the truck in terms of the contract but not consequential relief of payment of the quantified amount, as rightly pointed out by the courts below. The question, therefore, is whether the amendment under Order 6, Rule 17 C.P.C. could be ordered in this background.

Section 3 of the Limitation Act speaks of bar ofJiinitation providing that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit D instituted, after the prescribed period shall be dismissed, although limitation has not been set up as the defence. In other words, unless there is a power for the court to condone the delay, as provided under Sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as the defence. Order 6

Rule. 17 C.P .C. envisages amendment of the pleadings. The court may at any stage of the proceedings allow either parties to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. Therefore; granting of amendment on such terms is also a condition for the purpose F of determining the real question in controversy between the parties. The amendment to grant consequential relief sought for in this case, is as envisaged in proviso to Section 34 of the Specific Relief Act, 1963. That relief was, however, available to him, to be asked for, when the suit was

filed. ·

Admittedly, by the date of the application for amendment filed, the relief stood barred by limitation. The question, therefore, is whether the Court would be justified in granting amendment of the pleadings in such manner so as to defeat valuable right of defence of bar of limitation given to the defendant. It is true that this Court in the case of Vineet Kumar v.

H Mangal Sain Wadhera, reported in (1984] 3 SCC 352 (at page 360, in

paragraph 16), held that normally amendment is not allowed, if it changes A the cause of action. But it is well recognised that where the amendment does not constitute the addition of a new cause of action, or raise a new case, but amounts to not more than adding to the facts already on record, the amendment would be allowed even after the statutory period of limitation. In that case, the question of limitation was not really in issue. The question was whether the tenant was liable to be ejected. The plea was that there was an exemption period of 10 years from the purview of the Rent Control Act, if pending proceedings 10 years' period has elapsed. On that ground a new right had arisen to the tenant to take advantage of the benefit of the provisicns of the Rent Control Act. In these circumstances, this Court held that the bar of limitation does not really stand in the way of the tenant to grant relief. As stated earlier, the suit was not initially instituted as one for recovery of damages nor was it founded on the relief which might have been asked for but was not claimed. In Pusupuleti Venkateswarlu v. The Motor & General Traders, [1975] 3 SCR 958 this Court dealing with the basis of cause of action and character of the right had held that D "it is basic to our processual jurisprudence that the right to relief must be 1udged to exist as on the date a suitor institutes the legal proceedings.

Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. In a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner E of moulding it, is brought diligently to the notice of the T1ibunal (Emphasis supplied), it cannot blink at it or be blind to events which stultify or render inept the decreetal remedy. Equity justifies bending the rules of procedure, where no specific provision of fair-play is not violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances (Emphasis supplied). Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court." In other words, this court laid emphasis that with a view to mould the relief a new fact can always be taken into account

not merely by the trial court but even by the appellate court. Where the appeal is delayed even by necessary implication, the relief of amendment G in that event cannot be given. In other words, to render substantial justice without causing injustice to the other party or violating fair-play, Court would be entitled to grant proper relief even at the stage of appellate forum. It is seen that the ratio of Jagdish Singh v. Natthu Singh, AIR (1992) SC 1604 is also inapplicable to the facts of this case. That case relates to H

48 SUPREME COURiREPORTS '. [1995lSUPP. 5 S.C.R.

A a suit instituted forspecific performance but without abandoning the relief of specific performance alternate relief for damages was. also sought for.

This Court relying upon the proviso to sub-section (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

-B amendment of the plaint seeking alternate relief. The ratio therein is clearly distinguishable and does not ;; ipply to the facts oUhis case. ·

On a consideration of this case in its proper1perspective, we .are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of $pecified amount is C 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 theDistrict 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.

The appeal is accordingly dismissed but, in the circumstances without .costs.

T:N.A.

Appeal dismissed.