Posted On by &filed under High Court, Patna High Court.


Patna High Court
Bihar Air Products Ltd. vs Sri A.V. Panikar And Ors. on 31 October, 2000
Equivalent citations: 2001 (1) BLJR 227
Author: A K Sinha
Bench: A K Sinha


JUDGMENT

Anil Kumar Sinha, J.

1. The present civil revision application is directed against the order dated 22-5-2000 passed by the Sub-Judge-VIII, Ranchi in T.S. No. 36 of 1999, whereby and whereunder, he allowed the amendment petition filed by the plaintiff-opposite party No. 1.

2. The plaintiff/opposite party No. 1 filed the suit for the following reliefs:

(a) That a decree for Rs. 32,91,000/- be passed in favour of the plaintiff against the defendant Nos. 1 and 2 as per accounts given below:

(b) That it be declared that termination of dealership agency of the plaintiff, granted to the plaintiff by the defendant No. 3 for doing dealership of gas agency business in the name and style of M/s Oriental Gases, vide letter dated 21.2.1996, is ab-initio illegal, malafide, arbitrary, discriminatory, void and without jurisdiction and the same cannot be given effect to.

(c) That a decree for the cases of the suit, interest pendent elite and future be passed.

(d) That a decree for such other relief or reliefs to which the plaintiff is entitled, to be passed.

3. The plaintiff/opposite party No. 1 filed an amendment petition under Order VI, Rule 17 of the Code of Civil Procedure on 27.3.2000 and sought to add new reliefs in the following terms:

38 (a) 1. That a decree for a sum of Rs. 25 lakh as per account given in account Nos. 1 and 2 below be passed in favour of the plaintiff and against the defendant No. 3.

(i) Damages/losses suffered by the plaintiff due to illegal suspension, illegal termination of dealership agreement by defendant No. 3.

…RS. 15,00,000-000

(ii) Damages/losses suffered by the plaintiff due to prolonged, deliberate and illegal wrong doing with prejudicial mind set by defendant No. 3.

…Rs. 10,00,000-00
____________________________
Total: Rs. 25,00,000-00

4. The petitioner/defendant No. 3 raised objection against the amendment sought for by the plaintiff on the ground that the proposed amendment is barred by limitation and is an after-thought and the plaintiff is trying to make out a new case against defendant No. 3, which is not permissible in law, since the plaintiff wants to make out a case of damages.

5. The learned Sub-ordinate Judge allowed the prayer for amendment sought for by the plaintiff by passing the order dated 22.5.2000.

6. The learned Counsel appearing for the petitioner reiterated the stands taken by him in the rejoinder petition which was filed against the amendment petition and by relying upon the decisions reported in AIR 1995 SC 1768 : AIR 1996 SC 642 : AIR 1997 SC 772 and AIR 1992 Ori 68 submitted that the plaintiff’s claim is barred by limitation and the learned Court below was not justified in allowing the amendment in view of the decisions cited above. The facts of the cases cited above by the learned Counsel for the petitioner is distinguishable from the facts of the present case inasmuch as in AIR 1995 SC 1768, the prayer for amendment was filed after lapse of 7 years from the date of filing of the suit, although the period of limitation was only 3 years, hence, in the peculiar facts of that case, it was held that any amendment on the ground set out to defeat the valuable right of limitation accrued to the respondent. Similarly in A.I.R. 1996 SC 642 amendment was sought for seeking permission to amend the plaint to include such relief, which had become time-barred during the pendency of the proceedings, hence, the Hon’ble Supreme Court held that such relief cannot be granted through the amendment petition, same was the position in the case of It. Muddukrishana and Anr. v. Smt. Lalitha Ramchandra Rao .

7. The learned Counsel appearing on behalf of the opposite parties, however, relied upon the decision in the case of Vineet Kumar v. Mangal Sain Wadhera , wherein the apex Court held as follows:

Normally, amendment is not allowed if it changes the cause of action. But it is well recognized that where the amendment does not constitute an addition of a new cause of action or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation.

The decision reported in AIR 1967 SC 96 was. relied upon by their Lordships in that case.

8. The learned Counsel appearing for the opposite party relied upon the another decision reported in the case of B.K. Narayana Pillai v. Parameswaran Pillai and Anr. 2000 (1) PUR (SC) 111, wherein the apex Court held as follows:

Court while deciding amendment should not adopt hypertechnical approach rather liberal approach should be taken where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice. Principles of amendments equally applicable to the plaints and written statement. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original Us was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right according to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated any costs and error or mistake which, if not fraudulent, should. not be made a ground for rejecting the application for amendment of plaint or written statement.

9. It appears from the impugned order that the learned Court below was of the view that the proposed amendment is not inconsistent and contradictory to the facts pleaded in the plaint and no new cause of action or any new case has been proposed to be added. Accordingly it allowed the amendment sought for by the plaintiff with cost of Rs. 200/-. I do not find any illegality or impropriety in the impugned order passed by the learned Court below, specially in view of the decisions cited on behalf of the opposite parties.

10. In the result, therefore, I do not find any merit in this civil revision application, which is, accordingly, dismissed.


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