SAYED ALI Vs. GYARSILAL BANSILAL

JUDGEMENT

(1.) THIS is defendants' petition for revision of an order dated 10 -4 -1980 whereby, in civil suit No. 182 -A of 1976, Civil Judge Class II, Guna, allowed an application dated 9 -4 -1980 of the respondent -plaintiff for amendment of the plaint. The suit was instituted on 19 -4 -1976. The plaintiff's case was that, after having taken, on 27 -7 -1974, a Theka from Gram Panchayat, Umri for collection of bones for the period till 30 -6 -1975 on payment of Rs. 1525 to the Gram Panchayat, he collected bones in the Theka -area till that date. On 10 -1 -1976, by a truck, he took those bones to the bone -mill of the defendant No.2 (respondent No.2) situated at Bajargarh Road, Guna, for the purpose of selling away the same to him and unloaded the truck there in his (defendant No. 2) presence. Thereafter, on the same date, when he was getting the bones, weighed there for the purpose of delivering the same to the defendant No. 2, some men of the defendant No. 1 (respondent No. 1) arrived and got the work discontinued on the contention that the plaintiff did not have title to the bones. The plaintiff sent notices dated 21 -2 -1976 to the defendants but they did not give any reply thereto. Therefore, he claimed against the defendant No. 1 only a declaration that the bones belonged to him and also a perpetual injunction restraining him from interfering with his possession thereon either by himself or through anybody else.

(2.) THE defendant No. 1 admitted to have received the alleged notice but denied specifically the allegation that his men got the weighing of the bones discontinued. He pleaded ignorance with regard to the other plaint -allegations. According to the defendant No. 2, the truck -load of bones was brought to his mill and unloaded there not by the plaintiff but by one Abdul Mazid and the weighing was discontinued not by any man of the defendant No. 1 but by Abdul Mazid himself at the instance of a Head Constable of Guna police -station. He pleaded that the bones were still lying at the mill and he was prepared to pay price thereof to the person by whom they were brought. On other points, he pleaded ignorance. Issues were framed on 12 -9 -1979 and the suit was posted to 3 -10 -1979 for evidence. On 3 -10 -1979, it was adjourned to 7 -4 -1980 for the same purpose. On 7 -4 -1980, the counsel for both the defendants submitted in writing separately that the defendants had no objection to the bones being taken away by the plaintiff from the mill. The suit was, on that date, adjourned to 9 -4 -1980, on which date the plaintiff submitted an application under Order 6 Rule 17 for amendment of the plaint. Thereby, he wanted to plead that, in view of the said submissions dated 7 -4 -1980 made on behalf of the defendants in Court, when he went on 7 -4 -1980 and 8 -4 -1980 to the spot where the bones had been unloaded from the truck, he did not find the bones there, which fact revealed that they had been removed from there by the defendants and he was, therefore, entitled to claim Rs. 4,00 ) as price thereof from the defendants jointly and severally. Amendments ancillary to these allegations were also sought in the 'cause of action', 'valuation' and 'relief clauses. The relief of perpetual injunction was sought to be substituted by the claim for recovery of Rs. 4,000 as price of the bones from both the defendants. That amendment -application was allowed by the trial Court vide order dated 10 -4 -1980, which is the subject -matter of this revision.

(3.) THE learned counsel for the petitioners has argued that the said amendment introduces a new case or a new cause of action and, therefore, it could not be allowed. In support of his contention, he has referred to decisions in the following cases. ClnmnUal v. Deoram and another, AIR 1948 Ngp 119, A. K. Gupta and sons Ltd. v. Damodar Valley Corporation : AIR 1967 SC 96, Chaubey Sushil Chandra v. Raj Bahadur : AIR 1977 All. 259, Narsayya v. State of M. P., 1977 (1) M PW 374. According to the learned counsel for the respondent, the amendment was necessitated due to change of circumstances during pendency of the suit and, therefore, it was rightly allowed. He has referred to decisions in the following cases. L. J. Leach and Co., and another v. Messrs. Jardine Skinner and Co. : AIR 1957 SC 357 , Jai Jai Ram Manohar Lal v. National Building Materials Supply, Gurgaon : AIR 1969 SC 1267, Lakhmichand Kasliwal v. Gopaldas Nikhara : 1978 M PLJ 171 : AIR 1978 MP 171 . The first case referred to by the learned counsel for the petitioners related to amendment of written statement. Therein, the observations were as follows : Just as a plaint cannot be allowed to be amended so as to introduce a new and inconsistent cause of action which would change the nature of the suit, so also the defence cannot be allowed to be altered so as to introduce a different set of circumstances inconsistent with the circumstances pleaded to begin with." In the next case referred to by him, the Supreme Court observed as follows. -"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 cause of action is barred........................................... 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.