AHMED HOSSEIN Vs. CHEMBELLI

JUDGEMENT

(1.) This is an application for amendment of the plaint. The suit is on a dishonoured cheque. The plaint did not state that any notice of dishonour has been given or that any circumstances existed which rendered it unnecessary to give such notice. The plaintiff now seeks to introduce these statements in the plaint by an amendment. The application is opposed by the defendants on the ground that by reason of the absence of these allegations the plaint as it stands now discloses no cause of action and hence it must be rejected under Order 7, Rule 11 (a), Civil P. C. and the Court has no power to allow the amendment. The defendants rely on the judgment of Gentle J. in Sailesh Nath v. J. Chaudhury, 50 C. W. N. 540 which directly supports their contention.

(2.) The plaintiff's answer is two fold : First the plaint discloses a cause of action in spite of the omission to state anything with regard to the notice of dishonour and secondly that Order 7, Rule 11, does not take away the Court's power to order amendment of the plaint and that Gentle J. was wrong.

(3.) With regard to the first point the plaintiff's contention is that the facts relating to the notice of dishonour are not part of the cause of action on a dishonoured cheque but are mere conditions precedent necessary for the case on the cheque, the performance or occurrence of which is to be implied in the plaint under Order 6, Rule 6 of the Code. I am unable to accept this contention. A cause of action is that bundle of facts which would, if left to itself, create in law a right or obligation, while a condition precedent is something which prevents the right or obligation which would have otherwise sprung out from those facts from springing out. A condition precedent has thus been described in the notes to Order 19, Rule 14 in the White Book :