J K CHURAMANI Vs. ESCORTS LIMITED

JUDGEMENT

(1.) In this application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure and Section 40 of the Specific Relief Act. 1963 the plaintiff seeks an amendment of the plaint with aview to claiming of an additional relief of payment of damages to him of a sum of Rs. 4.91.793.00 (details given in the application) alternatively and consequent amendment to that effect in certain, paragraphs of the plaint.

(2.) The brief facts set out in the plaint are that plaintiff while was working with defendants as General Manager, his services were terminated by the defendants vide order dated 25th May, 1984 with immediate, effect In lieu of three months notice, he was given three months pay in the form of a cheque of Rs.13,920.00 . The service of the plaintiff appears to have been terminated on the ground that he wanted to set up a parallel business for which he had gone on long leave. However, his services were allegedly terminated in accordance with the appointment letter and also on he ground that his services were no longer required. The plaintiff has challenged the impugned order on the various grounds that the order of termination dated 25th May, 1984 has not been passed by Mr. Anil Nanda, Joint Managing Director of the Automotive Division under whom he was working. The impugned order is also bad being opposed to the principles of natural justice; being based on extraneous and irrelevant considerations and in breach of the implied terms of contract of employment; apart from being arbitrary, capricious and malicious. This order of termination dated 25th May, 1984 terminating the plaintiffs' services was subsequently confirmed by letter dated 7th September, 1984. The order being void, the plaintiff asserts and seeks declaration to the effect that he continues to be in the service of the company and is entitled to all consequential benefits and also perpetual mandatory injunction directing the defendants to reinstate the plaintiff retrospectively. The plaintiff submitted and strongly that in the facts and circumstances of the case when the plaintiff applies for damages in a suit where perpetual injunction has already been asked for whether the Court has no power to refuse such an amendment. In this connection he relied upon Section 40 of the Specific Relief Act which may be reproduced as under :- " Damages in lieu of, or in addition to injunction : (1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for such injunction and the court may,ifit thinks fit, award such damages. (2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint : Provided that, where no such damages have been claimed in the plaint, the court shall, at any stage of the proceeding allow the plaintiff to amend the plaint on such terms as may be just for including such claim. (3) The dismissal of a suit to prevent the branch of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach."

(3.) The section aims at preventing multiplicity of suits and compels plaintiffs to sue for all possible reliefs in respect of breaches, actual or threatened of obligations, existing in their favour, in one and the same suit on pain of forfeiting their rights to sue for damages by bringing another suit in respect of the infringement of their rights, and that is why the option has been given to the plaintiff either in addition to or in substitution for injunction to apply for amendment for payment of damages. It is for this reason that the word "shall" has been used in contradiction to the word "may" used under Order 6 Rule 17. The proviso further shows that howsoever belated the request for amendment may be and even if the claim put forward byway of amendment is hopelessly barred by limitation it. imperative for the Court to allow the amendment. I am fully fortified in reaching this conclusion in a case reported in Jagdish and others v. Har Sarup (AIR 1978 Del. 233) : "Whereas under Order 6 Rule 17 of the Civil Procedure Code the Court has a discretion, the proviso to sub-section (2) makes it imperative for the court to allow the amendment. It is for that reason that the word "shall" has been used in contradiction to the word 'may' used under Order 6 Rule 17. The proviso further shows that howsoever belated the request for amendment may be and even if the claim put forward by way of amendment is hopelessly barred by limitation it is the bounden duty of the court to allow the amendment."