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Hindusthan Forgings v/s Board of Trustees for the Port of Calcutta

    C.O. Appeal No. 472 of 1990

    Decided On, 13 June 1996

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE BASUDEVA PANIGRAHI

    For the Appearing Parties: Mrinal Kanti Roy, Prasan Ghosh, S.N. Patra, S.P. Majumdar, Sankar Bannerji, Advocates.



Judgment Text

(1) THIS is a revisional application against the orders dated 25-9-1989 and 12-21990 filed by the plaintiff in Suit No. 456, 88 passed by the 2nd Bench, Small Cause Courts at Calcutta.


(2) 'the brief facts set-out in the revisional application are as follows:--


The petitioner which is a firm carrying on business of various types of iron materials had supplied to the opposite party-defendants since 1980-81 of M. S. Bolts, Nuts, Washers of various sizes and other items as specified in the Bill. It is, inter alia, stated that as per the agreement the defendant had agreed and paid 90% of the value of the goods leaving onlyl0% to be payable at time of final checking and re-submission of further bills by the plaintiff. There was an outstanding dues of Rs. 4,509 payable by the defendant-opposite party of the said balance 10% of the bill amount. The plaintiff had submitted several representations and reminders but all such attempts appeared to be abortive. The petitioner had also sent a notice under Section 120 of the Major Port Trust Act, 1963. Since the defendant/ opposite party did not clear the amounts, the plaintiff filed the suit for recovery of Rs. 9,990/- as per the schedule mentioned in the plant. In response to the suit summons the opposite party appeared in the court and filed the written statement denying all the allegations that have been made. The petitioner, during the pendency of the suit, has submitted an application under Order 6, Rule 17 of the Code of Civil Procedure read with Order 7, Rule 19 of the small Cause Courts Act praying for amendment of the plaint, incorporating one letter of the defendant-opposite party, admitting the claim of the petitioner and asking him to wait for some time more for his dues. In paragraph 9 of the plaint, it was although stated that in pursuance of the notice under Section 120 of the Major Port Trusts Act, 1963, the defendant further asked for documents and the same were submitted but the details of the said letter nor the date could be specified in the said para.


(3) THE opposite party had vehemently objected to the said application for leave to amend the plaint, inter alia, stating that the plaintiff's claim having been already barred by limitation the amendment application neither could be entertained or allowed. The learned trial Judge after having accepted the contention of the defendant-opposite party was, however, inclined not to grant leave for amending the pleadings and thus, accordingly rejected the amendment application.


(4) ON 12-2-1990 the learned trial Judge dismissed the plaint on the ground that it was barred by limitation under the provision of Section 120 of the Major Port Trust Act, 1963.


(5) MR. M. K. Roy has argued in support of the revisional application that the learned trial Court seems to have acted in a very hyper-technical manner in rejecting the prayer for leave to amend the plaint. It is further stated that the amendment sought by the plaintiff would neither change the nature and character of the suit nor it would change the cause of action. The schedule of amendment only could reveal the further elucidation of fact which would help the court in coming to a just conclusion. In the plaint it is nonethe-less true that the plaintiff has stated the defendant having sent a letter asking the plaintiff to wait for some time more but details of the letter could not be mentioned due to oversight which may at the best can be said to be a bona fide mistake.


(6) MR. S. P. Majumdar has vehemently argued that the application for leave to amend the pleading could not have been allowed inasmuch as the plaintiff's claim was already barred by limitation under the provisions of Section 120 of the Major Port Trusts Act, 1963. Therefore, it cannot be argued that the learned trial Judge has committed any jurisdiction error in refusing the prayer of the plaintiff.


(7) THE Court do exist for advancing the cause of justice but not to hinder it. Procedures are handmaids of justice and they cannot be upgraded to the level of mistress of justice. In this case, as per the contractual obligation the plaintiff had supplied the articles to the defendant and received the bill amount of 90% of the claim leaving 10% balance of the value of goods to be payable at the final checking and resubmission of further bills. The revisionist times without number had approached the opposite party for settlement of his claim when all such attempts evoked no response the plaintiff had to issue a notice under Section 120 of the Major Port Trusts Act, 1963. At that stage, the defendant/ opposite party had asked the plaintiff to wait for some time for the settlement of the account and not to take shelter in court by filing a suit. In the plaint, an attempt was made to incorporate the letter of the defendant/ opposite party under which it admitted the claim of the petitioner and asked him to wait for some time more for his dues. In paragraph 9 of the plaint, it was, undoubtedly, stated that in pursuance of the notice under Section 120 at the Major Port Trusts Act the defendant asked for some documents and the same were submitted to them but the details of the said letter nor the date of said letter was specified in the paragraph. Therefore, the plaintiff by taking leave from the court intended to state more particulars of letter purportedly sent by the opposite party. In the above background, can it be said by granting such leave to amend the pleading, the plaintiff has introduced a new sets of facts contradictory to the earlier stand taken by him. If a fact comes to the notice of the Court which has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently, the court cannot blink at it or be blind to events which stultify or render inept the decretal remedy. The Court when taking such facts to its notice could advance substantial justice it should not shirk its responsibility by taking a parochial approach of procedural technicality. The facts set out in the application for leave to amend is the reply to the notice under Section 120 of the Major Port Trusts Act purportedly sent by the opposite party. It cannot be said that the opposite party was oblivious to such letter since it was sent by them. The plaintiff wants to incorporate the statement of facts of the letter sent by the opposite party is only by way of elucidation and amplification of facts already stated.


(8) IN a decision reported in (1984) 3 SCC 352 : (AIR 1985 SC 817) in the case of Vineet v. Mongal Sain Wadhera it has been held as follows: ---


"normally an amendment is not allowed, if it changes the cause of action. But it is well recognised that where the amendment does not constitute the addition of a new cause of action or raise a new case but amount to not more than adding to the facts, already, on record, the amendment would be allowed even after the statutory period of limitation. "


(9) MERELY because a prayer is barred by limitation, if the leave to, amend is only to adding few facts already on record the amendment should not be disallowed. Plea of limitation is to be examined at the proper time by the court below. In a recent decision, the apex Court has also held in the case of (1996) 2 SCC 25, G. Nagamma v. Siromannamma


"it is settled law that the plaintiff is entitled to take even inconsistent pleas. In this case, they are seeking alternative reliefs. The application was for amendment of the plaint whereby neither the cause of action could change nor the relief could be materially affected we allow the same".


(10) LET me now advert to the application and examine whether by such proposed amendment would thereby change the cause of action of the suit or would it materially after the pleadings. The amendment sought to be introduced in the pleadings by the plaintiff bringing few facts stated by the opposite party defendant in their reply to the notice under Section 120 of the Major Port Trust Act by the plaintiff. Therefore, by such proposed amendment it would not change the nature and character of the suit nor will there be any change of cause of action. In the above premises, the learned trial Court has undoubtedly committed gross jurisdictional error in refusing the application for leave to amend.


(11) MR. Majumdar, the learned counsel has vehemently argued in support of his submission that the suit is barred under Section 120 of the Major Port Trusts Act, 1963 and therefore the learned trial Judge has justifiably spurned the plaintiff's prayer. In this case, I found the cause of action has been stated in the plaint in para 12 that on 26th Feb. 1987 when the 90% billed amount were paid and on 19th January, 1988 when the liability of the plaintiff was admitted by the defendant. If it is held that a part of cause of action has arisen on 19th Jan. 1988 and the suit having been filed on 19th May, 1988 it could not be said that the suit was filed after the period of limitation. But if the cause of action has accrued on or about 26th Feb. 1987 then the court is bound to reach a conclusion that the claim way barred by limitation. When asked to the parties as to the stage of the suit none of them was able to state the real position. Mr. Majumdar could not highlight that whether the court decided the question of maintainability of the suit after the issues having been framed. In the absence of knowing the stage of the suit it wound be difficult to hold that the suit is barred by limitation. But, after the issues are framed it is open to either party/ to pray for a decision regarding the maintainability of the suit under Order 14, Rule 2 of the Code of Civil Procedure. It is the settled position of law that issue of law which does not touch the jurisdiction of the court cannot be tried as a preliminary issue. Be that as it may since we are oblivious as to the present stage of the suit it would be extremely difficult to decide in. either way. Mr. Majumdar has placed Section 120 of the Major Port Trusts Act in support of his argument. It is quoted hereunder:---


"120. Limitation of proceedings in respect of things done under the Act - No suit, or other proceeding shall be commenced against a Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action. "the term 'cause of action' means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. The real test in determining it whether an allegation forms part of action and whether the plaintiff has to prove the same in order to support his right to judgment of the Court.


(12) BUNDLE of material facts leading to filing of the suit may amount to cause of action in order to entitle the plaintiff to succeed in the suit.


(13) MR. Majumdar has placed reliance on a judgment reported in AIR 1976 Andh Pra 261, in the case of Shipping Corporation of India Ltd. v. Union of India, the decision cited supra was on a different context. In the said suit the provision of S. 122 had appeared to be interpreted before the Andhra Pradesh High Court to find out if the suit is to be filed within the six months after the accrual of the cause of action and it has to be preceded by one month's notice. The opposite party has again relied upon a decision reported in AIR 1966 Cal 190 (Commrs. for the Port of Calcutta v. Khaitan Sons and Co. (Tea Chest) Ltd.) whether t

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he above decision shall be attracted to the present case or not is to be examined by the court below at an appropriate time. But suffice it to say that since the learned court below has committed an error in rejecting the prayer of the plaintiff for leave to amend the plaint the order assailed is hereby set aside. Accordingly, the amendment application is allowed and the plaintiff is directed to supply the amended plaint to the learned trial Judge within a period of four (4) weeks and the defendant can file their additional written statement within 2 weeks from the date of supply of amended plaint. (14) AFTER framing of the issues it is open to the defendant to move the trial Judge for deciding the question of limitation under the special statute under S. 120 of the Major Port Trusts Act, 1963. I must make it clear that while deciding the revisional application I did not examine the merits of the contention regarding the question of limitation under S. 120 of the Major Port Trusts Act. The learned trial Judge is free to take his own view after hearing the parties. In the result, the revisional application is allowed, the orders dated 25th September, 1989 and 12th February, 1990 are hereby set aside. But in the circumstances parties are directed to bear their own costs. Revision allowed.
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