TMI Blog1966 (8) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing security of goods. On the date when the suit was instituted, the defendants, according to the plaintiff-Bank, owed ₹ 1,60,076411. I should make it clear that the suit was instituted only on the contract of loan and not on the contract of pledge or any other agreement entered into by the parties in respect of the rash credit account. 2. The defence put up by the different defendants was not the same though they were all in common in denouncing the plaintiff's claim. In their respective written statements, each one of them tried to throw the blame on the one or the other of the defendants: particularly defendant No. 2 made it clear in his written statement that he was not responsible for anything done by defendant No. 1 which he alleged to be the fraudulent acts on his part with the motive to deceiving other defendants who were working in partnership with him in carrying on the business of the mills known as 'Shree Bhagwati Rice, Oil and Flour Mills' at Jamui. 3. On the trial of the suit, the plaintiff's claim was decreed on contest against defendants 1, 2 and 4 with costs, and it was also declared that the plaintiff-Bank had the first charge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patil AIR 1957 SC 363. L.J. Leach and Co. Ltd v. Jardine Skinner and Co. AIR 1957 SC 357. A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation 1906 BLJR 340: AIR 1957 SC 96 and Union of India v. Shalimar Tar Products (1935) Ltd. AIR 1953 Pat 131. I shall deal with these cases later. The most that these decisions and other decisions on the question of amendment of pleadings lays down is that the paramount consideration that should weigh with a Court in such a mailer is to see whether the ends of justice call for the amendment to be introduced at a later stage. No doubt, the Court has got power to allow the amendment of pleadings of the parties at any stage as provided under Order 6, Rule 16 of the Code of Civil Procedure, but the amendment which is now being sought for is of a different nature. It is not a mere amendment of the pleading, namely, the written statement filed by defendant No. 2 but it is really a prayer under Order 8, Rule 6 of the Code of Civil Procedure to introduce a claim of set off against the plaintiff's money claim, which was the basis of the suit This was undoubtedly permissible to any of the defendants. That would be really a different cause of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wide enough to cover a case of this nature even if it is taken only as an amendment of the pleading by inserting an equitable relief of set off. There, the question of delay may be relegated to a remote place, if the ends of justice would justify the allowance of such an amendment. Even if the claim of set off is barred by limitation as in the present case is, that may also occupy a subordinate position in the consideration of the Court and may be outweighed by the paramount consideration of ends of justice But, all the same, the prejudice that may be caused to the other side or the difficulty to which the other side may be driven cannot be completely over looked if that is inevitable in allowing an amendment of this nature at this late stage. In permitting amendment of the pleadings, the Court has to consider two things; (1) ends of justice, and (2) the other which is equally important is that a new case is not permitted to be made out by such an amendment. If a case is already there in the original pleading and it is sought to be extended either by way of adding another relief or putting another ground of defence or claim alternatively or in addition to what he stated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the execution and succeeded. The plaintiff was thereupon forced to launch another suit against C in which he claimed reliefs against C He had not stated in the plaint of the second suit anything about his original claim He started with the decree that he had already obtained against B. The suit was not successful on account of absence of the claim of the plaintiff's title, Independent of the decree to which the other defendant C was not a party. At that stage, the plaintiff wanted to amend his plaint by bringing to his plaint facts relating to his claim (prior to the decree) on which he had obtained a decree in the earlier suit. That was permitted. The reason given in support of the permission was that the relief, as mentioned in the plaint, remained unchanged in spite of the amendment sought for. The suit itself was clearly to establish the plaintiff's claim against the defendant C, but the omission to state the facts relating to the plaintiff's claim, prior to the earlier suit, was an omission and could be condoned both for ends of justice and also because that would not create any prejudice or surprise to defendant C. In the instant case, the position is entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Supreme Court in that case to the following effect: It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred Weldon v. Neale (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts. The amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan 47L.R. IndAp 255: AIR 1921 PC 50 and (: AIR 1957 SC 357 : 1957 SCR 438). It is on this part of the observation that the learned Counsel has relied upon; but there it has been clearly stated that where a new cause of action or a different case is not sought to be introduced by the amendment, it can be permitted As I have already indicated, the amendment which the appellant wants now is not an extension of the case that he had pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he was not able to challenge the decree as it is, unless his claim for set off is allowed to be raised by way of amendment. 10. A.B.N. Sinha, J.: I agree that the application of the defendant-appellant for amendment of his written statement is without any merit and must be rejected. 11. The principles on which voluntary amendment is allowed are well settled. It is contained in Order 6, Rule 17 of the Code of Civil Procedure which reads as under: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may he just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. One of the principles which has been uniformly followed while determining the question whether an amendment prayed for should be allowed or not is that however negligent or careless may have been the first omission and however late the proposed amendment, the amendment will be allowed if it can he made without injustice to the other side. If there is no injustice caused to the other side by the amendment sought for, it has been held that o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
