AISHA Vs. STATE OF J&K

JUDGEMENT

(1.) ON 6 -12 -1966 a suit for rendition of accounts was instituted by the plaintiff -appellant in the court of C.J.M. (Sub -Judge) Srinagar against the State of Jammu and Kashmir stating that the plaintiff -appellant in response to a Govt. Notification inviting tenders from contractors for the construction of a timber bridge at mile 9 Sopore -Chowkibal road offered his tender which was accepted by the Govt. and the work in question was allotted to the plaintiff -appellant after the execution of the agreement. It was further averted in the plaint that the plaintiff -appellant commenced the construction work immediately thereafter but in view of the provisions in the allotment order that the work undertaken by the plaintiff -appellant was to be executed to the extent of funds available during that financial year, the plaintiff -appellant had to stop the work on account of non -availability of funds as well as departmental materials in time. It was further alleged that the department without notice to the plaintiff -appellants got some portions of the work executed by some other contractor and when in spite of repeated demands for accounts the department failed to make the final payment to the plaintiff -appellant, the necessity for filing the suit arose. In the trial court the State, inter alia raised in the written statement an objection with regard to the maintainability of the suit for accounts against the State. Many other objections also were raised by the State and a number of issues were framed by the trial court. The first issue was as to whether the suit of the plaintiff against the State for rendition of accounts was or was not maintainable. By its order dated 28 -7 -1973 the trial court decided this issue in favour of the plaintiffs and on the findings returned with regard to this issue and other issues it proceeded to pass a preliminary decree directing that the accounts be taken between the parties and also appointed a Commissioner for this purpose. Aggrieved by this order of the trial court, the State took an appeal to the District Judge, Srinagar.

(2.) THE main contention of the defendant -respondent in the first appellate court was that the suit for rendition of accounts was not maintainable as the plaintiff -appellant was in possession of accounts himself and all accounts being within his knowledge the suit for accounts was not maintainable. It was contended that if at all, the suit should have been for the recovery of a specific amount. The Learned District Judge upheld the contention of the State and vide its order dated 9 -12 -1974 set aside the judgment and decree of the trial court and ordered that the suit was not maintainable and therefore dismissed the same. It was against this order that this second appeal has been filed by the plaintiff -appellant.

(3.) THE main ground urged in this appeal was that the reliance placed on a judgment of this court by the District Judge, Srinagar in disposing of the first appeal was not in accordance with law and that the facts of the case relied upon by the first appellate court were entirely different from the facts appearing in the instant case. It was submitted that in view of the terms of the agreement between the parties an agency has been created and on the facts of the present case the agent was legally entitled to ask his principal for accounts. The appeal was instituted in this court on 27 -2 -1975. During the pendency of the appeal it appears an application was submitted by the learned counsel for the appellant on 26 -8 -1976 with the submission that the matter under consideration in appeal was of far reaching importance inasmuch as important question of law were involved and the decision of the Full Bench of this Court relied upon by the District Judge requires further consideration as the same appeared to be contrary to the judgment given by the Supreme Court in a case involving similar questions of law and facts. It was prayed that the matter be referred to a larger bench so that the matter is finally concluded. It appears that the application was not pressed and no orders of the court were obtained upon this application. Instead on 8 -11 -1976 by another application submitted by the plaintiffs - appellants a prayer was made that they be permitted to amend the suit so as to claim a specific amount from the defendant -respondent. This application was objected to by the State on a number of grounds. It was submitted on behalf of the State that the appellants had caused much delay in seeking an amendment of the plaint as the objection with respect to the non -maintainability of the suit had been taken in the written statement submitted by the State as early as in 1967. It was also submitted that the proposed amendment, if allowed, will change the nature of the suit and also will alter cause of action and such a conversion, if permitted, would start the suit afresh after a number of years spent in litigation. The third objection raised by the State was that the application for amendment has not been made in good faith as the suit for specific amount of money has already be -time barred and if amendment was permitted great injustice will be caused to the defendant -respondent. Under Rule 17 0.6 C.P.C. the court has power at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner as may be just and all such amendments are to be allowed as may be necessary for the purpose of determining the real question in controversy between the parties. There is a catena of decisions dealings with the amendments of pleadings and it may be said that the settled law now appears to be that ordinarily a party should be allowed to make such amendments as may be necessary for determining real question in controversy provided in asking for amendment there has been no undue delay; that no new cause of action is introduced, or that no vested interest or a legal right accrued to the other side is affected. It is also well settled that amendments to the pleadings may not be allowed if it is found that the application for this purpose is not made in good faith and also if this may not be done without causing injustice to the opposite party. The general rule is to allow the amendment of the pleadings but it may be done only in cases where no injustice is caused to the other side. While considering the request for amendment of the pleadings, the most important aspect to be gone into is whether or not by permitting an amendment injustice would result to the other side. If an amendment if allowed takes away from a party a right accrued to him by lapse of time, it may well be said that it would undoubtedly result in injustice to that party. As a rule the plaintiff may not be allowed to amend the plaint by introducing a new cause of action which has become time barred since the institution of the suit. In other words no such amendment should be allowed as will take away a valid defence under the law of Limitation (See AIR 1957 SC; 595).