TMI Blog1965 (9) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... concerning the quantity or quality of the work done or otherwise howsoever. 3. The appellant filed a suit against the respondent only claiming a declaration that on a proper interpretation of the clause it was entitled to an enhancement of 20% over the tendered rates as the sole difference between the parties was about the interpretation. The plaint stated that work had been done under the contract and that the value of the suit for purposes of jurisdiction was ₹ 65,000 but as it was a suit declaration only court fees on that basis had been paid. The respondent in its written statement challenged the appellant's interpretation of the clause but did not dispute any material fact or that the only dispute was about the interpretation. The written statement concluded by saying that the respondent was ever ready and willing and is still ready and willing to pay the legitimate dues to the plaintiff. 4. Before the learned trial Judge several issues were raised but it is necessary to mention only two. One issue was as to the maintainability of the suit in the form in which it had been framed and the other issue was as to the proper interpretation of the clause. The first of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil. 9. The expression cause of action in the present context does not mean very fact which it is material to be proved to entitle the plaintiff to succeed as was said in Cooke v. Gill in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property corporation Ltd. and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words new case have been under stood to mean new set of ideas : Dornan v. J. W. Ellis and Co. Ltd. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. 10. Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 justice. 12. 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 appellant's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, quantity, rate etc. of the work done. The appellant will get the costs in this court. The question of subsequent costs will be decided by the High Court. The judgment of the High Court in so far as it refused the amendment is set aside but the rest of that judgment will stand. Raghubar Dayal, J. 15. This appeal, on certificate granted by the High Court of Patna, is against the judgment and decree dismissing the appellant's suit for a declaration on the ground that the plaintiff had not asked for consequential relief. The High Court rejected the application presented to it for amendment of the plaint. The question for determination is whether the High Court was right in rejecting the application for amendment. 16. The plaintiff sued for a declaration that is was entitled to enhancement of 20% over the tender rates for the different categories of excavation work as detailed in para 13 of the plaint in connection with the work of excavation in foundation of he Tilaiya Dam at Katni, P. S. Koderma, in the district of Hazaribagh. Paragraphs 1 and 2 of the plaint read: 1. That the plaintiff did excavation on work of different categories as contractor in connection wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass and description of work to be executed, unit of calculation and the rate of payment. Annexure B was the letter from the plaintiff to the Executive Engineer dated March 11, 1950 stating the difficulties in the performance of the contract. Annexure C was the letter from the Executive Engineer dated March 15-16, 1950 conveying the approval of an enhancement of 10% in thereat over the tendered rate for the excavation work from the date onward. Annexure D is the letter from the plaintiff to the Corporation dated December, 26, 1951 disputing the interpretation of the Corporation. 20. It is clear from the plaint and its enclosures that the dispute between the parties was about the rate to be paid for the different categories of work and that the plaintiff did not deliberately sue to recover the amount that might be found due upon the interpretation placed by the plaintiff upon the said clause 17. 21. Paragraph 13 of the written statement filed by the defendant stated that the defendant did not admit the later part of the statement in para 14 of the plaint which related to the plaintiff's reserving his right to sue later for the amount found due at the enhanced rate. The defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of course, allowed the application for amendment. 26. I propose to dispose of the second contention first. The contention about the maintainability of the suit was based on s. 42 of the Act and had to be allowed. The Court could not make a declaration unless further relief had been prayed for. It was incumbent on the court to comply with this requirement of law, even it not raised by the party, when it was clear that further relief could be claimed in the suit. Further, in this particular case, it cannot be said that no objection had been raised on this ground by the respondent up to the stage of the appeal in the High Court. In paragraph 2 of the written statement, the respondent questioned the maintainability of the suit in the form in which it was instituted. Issue No. 2 of the framed in that connection. The contention was not given up by the respondent. It was simply not pressed on his behalf, possibly, because it felt strong on the contention on the basis of which the declaration was sought. I therefore do not consider the High Court in error in allowing the respondent to raise the objection to the maintainability of the suit on account of the plaintiff not having asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the parties. 32. These indicate that the amendment should be in such manner as may be just and that, as a rule, all such amendments shall be made as be necessary for the purpose of determining the real question in controversy between the parties. No amendment would be just if it so prejudices the interests of the other party for which that party cannot get any relief from the Court. The amendments which must be allowed can be those in the absence of which the court may not be able to determine the real question in controversy between the parties. The real question in controversy must be gathered only from the plaint and to some extent from the allegations in the written statement. If the point to be decided as a result of the amendment is not covered by the controversy raised by the plaint and the written statement, the amendment is not to be allowed necessarily, for the simple reason that it is unnecessary for determining the real questions in controversy between the parties. The Court has to decide the suit instituted before it and with respect to the controversies raised in it. It follows that the amendments to be allowed relate to such matters which, due to bad drafting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, it may be noted, most of the claim had become time-barred. In the second appeal, Batchelor J., said at p. 651 : Falling back then, upon the words of the Rule, I cannot follow the argument that there would be any injustice to the appellants in allowing the amendment, for the only effect of it is to enforce their liability for a debt which was claimed, dispute, and found to be due long before the defence of limitation was available. Earlier, after referring to the provisions of O. 6, r. 17, he had said at p. 649: From the imperative character of the last sentence of the rule it seems to me clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions [a] of not working injustice to the other side, and [b] of being necessary for the purpose of determining the real questions in controversy between the parties. These observation have been approved by this court in Patil's case [(1957) S.C.R. 595.] where the court said, at P. 604: The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had a right to that property as against defendant No. 1 who was said to have no right to refuse delivery of possession to him. The only principle which can be deduced from this case is that amendment of the plaint can be allowed to make the plaint complete in particulars which would help in determining the real dispute between the parties, as raised by the plaint itself as originally presented. 38. Before dealing with Charan Das caseL.R. 47 IndAp 255. reference may be made to the case reported as Mohummud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer 11 M.I.A. 468 which has been referred to in Charan Das case. In this case the plaintiff brought a suit against several persons on the allegations that defendant No. 1 had borrowed certain money on a simple money bond executed on August 9, 1856 and that the other defendants claimed her property and that therefore the suit be decreed against defendants and the property mentioned in the plaint, with interest to date of realization. Defendant No. 1 had also executed another bond on November 28, 1857 to secure a further advance and had thereby pledged her Zamindari estate to the plaintiff. The suit was however not based on the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by limitation. 40. In Charan Das case L.R. 47 IndAp 255.the plaintiff used for a declaration of his right to pre-empt certain property. The suit so framed was not maintainable in view of s. 42 of the specific Relief Act, as the further relief for possession was not asked. The trial court rejected the application for amending the plaint and dismissed the suit. The appeal against the dismissal of the suit was allowed and the suit was remanded for decision upon merits with liberty to the plaintiffs to amend their plaint by adding a claim for possession and by ante dating the plaint according to the dates of the original suits. The privy Council approved of the permission for the amendment of the plaint and, after quoting with approval the observation of the Judicial Commissioner to the effect. however defective the frame of the suit may be, the plaintiffs object was to pre-empt the land their cause of action was one and the same whether they used for possession or not said at p. 262 : If this be so, all that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a from which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it case in which the amendment should be allowed as the new claim was based on a clause of the same agreement on which the suit had been founded and therefore could not be said to be foreign to the scope of the suit and as the prayer in the plaint was itself general and merely claimed damages. This Court observed at p. 450 : Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods. 43. Here again, the amendment allowed related to the form of relief which could be claimed on the basis of the facts alleged in the plaint and a clause of the document on the basis of which the suit was founded. The defect in the plaint was in giving a correct shape to the legal claim which was open to the plaintiff and the relief sought could be covered by the original relief which was couched in general language. It may further be mentioned that the amendment was considered just as the defendants themselves had cancelled the contract without str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low the new claim would be to go outside the provisions of O.6 r. 17 C. P. C. 47. 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 ₹ 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 no where 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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