HAKIM Vs. DISTRICT JUDGE DEORIA

JUDGEMENT

(1.) R. B. Misra, J. Heard learned Counsel for the petitioners and learned Standing Counsel for the State-respondents. None appears for the respondent Nos. 3 and 4.

(2.) IN this petition prayer has been made to quash the order dated 21st January, 1988, whereby the revision No. 47/86 of the petitioners was rejected and the amendment application dated 27- 2-1986 preferred in the Original Suit No. 1058 of 1971 was allowed.

(3.) LEARNED Counsel for the petitioner has also placed reliance on 2000 (1) JCLR 333 (SC): 2000 (1) S. C. C. 712 (B. K. Narayan Pillai v. Parameswaran Pillai and another), where the general rule, no doubt, is that a party can not be allowed to seek amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. The Supreme Court in B. K. Narayan Pillai (supra) in paragraph-4 has held as under: " (4) This Court in A. K. Gupta & Sons Ltd. v. Damodar Valley Corpn. , AIR 1967 SC 96: (1966) 1 SCR 796, held: "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 new case or new cause of action is barred: Weldon v. Neal, (1887) 19 QBD 394: 56 LJ QB 621. 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, AIR 1921 PC 50: ILR 48 Cal 110 and L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. , AIR 1957 SC 357 ; 1957 SCR 438. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes, Cropper v. Smith, (1884) 26 Chd 700: 53 LJ Ch 891: 51 LT 729 and secondly, that a party is strictly not entitled to rely on the statue of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended [kisandas Rupchand v. Rachappa Vithoha Shilwant, ILR (1909) 33 Bom 644 :11 Bom LR 1042, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgondapatil, AIR 1957 SC 363: 1957 SCR 595. . The expression 'cause of action' in the present context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed as was said in Cooke v. Gill (1873) 8 CP 107: 42 LJCP 98: 28 LT 32, 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 Corpn. Ltd. , (1962) 2 All ER 24 (CA) 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 understood to mean 'new set of ideas': Dornan v. J. W. Ellis and Co. Ltd. [ (1962) 1 All ER 303 (CA)]. 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. " Again in Ganga Bai v. Vijay Kumar [ (1974) 2 SCC 393] this Court held: (SCC p. 399, para 22) "the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far- reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court. " In Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91, it was held: (SCC p. 93, para 4) " (4) It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. " The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as the 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 the 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 lis was raised 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 (sic results) in defeating a legal right accruing 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 by 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. "