UDEY RAM Vs. FATEH SINGH

JUDGEMENT

(1.) This Revision Petition is directed against the order passed by the Senior Subordinate Judge, Gurgaon, as per which he allowed the amendment of the plaint in consequence of an application under Order VI, rule 4 Civil Procedure Code, filed by the plaintiff-respondent.

(2.) Mr. M.S. Liberhan, learned counsel for the petitioners has vehemently argued that the trial Court in allowing the amendment prayed for, had not properly appreciated the legal position on the point and that the Court had misunderstood the true import or the authority upon which it had placed reliance, i.e. A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, 1967 AIR(SC) 96. This contention of the learned counsel is, however, controverted by Mr. V.K. Jain, learned counsel appearing for the respondents.

(3.) After hearing the learned counsel in this matter and referring to the case law, I find that the contention of the learned counsel for the petitioners must prevail. The ratio of A.K. Gupta's case , is that as a general rule a party is not allowed by amendment to set up a new case or a new cause of action, particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts , the amendment is to be allowed even after the expiry of the statutory period of limitation. The question which falls for consideration is, as to whether the amendment prayed for can be treated as merely a different or additional approach to the same facts or not, it is pertinent to note that in the suit as framed originally the earlier decree was sought to be invalidated on the ground of collusion, whereas in the application for amendment now filed in Court, the allegation made is that the original decree was the result of a fraud, as the suit had not been filed by Mohammad Akkil, was in Pakistan. These allegations are certainly new facts which have been alleged for the first time and cannot be termed as "same facts". Even otherwise, the plea of fraud which is sought to be raised now, would be contradictory to the earlier plea of collusion. In such circumstances, the proposed amendment would constitute a new cause of action and not merely a different or additional approach to the same facts.