GOURANGA CHARAN SAHOO Vs. MAHESH CHHAPOLIA AND COMPANY

JUDGEMENT

(1.) THIS application under Section 115 of the Code of Civil Procedure arises out of a proceeding under the Arbitration Act. By the impugned order the Subordinate Judge rejected the Petitioner's application for amendment of his objection filed in the proceeding (T.S. No. 252/81).

(2.) ON a reference of disputes by opposite party to an Arbitrator an ex parte order was passed against the Petitioner making him liable for a sum of Rs. 25,810/ -. An application to make the said award rule of court was filed by the opposite party which is subject matter of T.S. No. 252/81. Therein the Petitioner filed his objection within the stipulated period challenging the award on several grounds. He asserted that he had no transaction with the opposite party which could possibly give rise to a dispute necessitating reference by the latter. He also denied existence of any arbitration agreement between the parties. The matter is pending consideration before the court. By the proposed amendment the Petitioner sought leave to introduce the following averments in his objection:

(3.) THE contention has substantial force. It has to be accepted as a settled position that an amendment of pleading seeking to introduce a new ground of challenge can be permitted at any stage of the proceeding if it is relevant, for proper and effective adjudication of the case. The position is also settled that any new cause of action based on new set of facts and any new relief will not be permitted to be introduced by amendment of pleadings after expiry of the period of limitation. The question for consideration is which of the two principles indicated above apply to the present case. As noticed earlier, the purpose of the amendment sought by the Petitioner was to challenge the award on the ground of bias on the part of the Arbitrator. This ground, if the petition for amendment is allowed, would be in addition to the grounds already stated in the objection. It is thus clear that it is only an additional ground which is sought to be taken by the proposed amendments and it is neither a fresh application objection to the award nor introduction of a new cause of action. As such, the question of limitation looses its relevance. In this connection, a reference may be made to the oft quoted decision of the Supreme Court reported in the case of L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. : A.I.R. 1957 S.C. 357, wherein the Court has clearly laid down that it cannot be taken as a universal rule that in no case the amendment seeking to introduce averments which if filed in the shape of a fresh suit, shall be barred by limitation can be permitted in appropriated circumstances amendment of pleadings permitting introduction of new matters even beyond the period of limitation can be made. The decision of the Calcutta High Court on which reliance was placed by the court below is distinguishable. In that case during pendency of the revision before the High Court a fresh application objecting to the award was filed to which exception was taken on the ground that it is filed beyond the prescribed period of limitation. The decision proceeded on the footing that the application is to be construed as a fresh objection to the award and the period of 30 days prescribed under Article 158 of the Limitation Act (old) having expired, the Petitioner could not be entertained. The court below erred in applying this decision to the present case wherein only a new ground of challenge was sought to be introduced in the objection.