Air India vs R.M. Meenakshi Achi and others

Abdul Hadi, J.—These two appeals, respectively arise out of Application No. 1886/90 in C.S. 560/78 and application No. 1885/90 in CS.

559/78, both on the file of this Court. A common order dated 31-10-1990 was passed in those two applications and another application No.

1892/90 in C.S. 557/78 on the file of this court. The above referred three suits have been filed by the respective legal representatives of the three

victims in the air accident that occurred on 12-10-76 claiming damages for the loss suffered due to the said air accident. The above said three

applications are for amendment of the respective plaints and the learned Trial Judge has allowed the respective amendments and, aggrieved by the

said order allowing the amendments, one of the three defendants alone in C.S. 560/78 and C.S. 559/78, namely Air India, has preferred these two

appeals. Originally the respective plaintiffs in those two suits based their claims under the Carriage by Air Act 1972. But, subsequently, the

amendment sought for wanted to make one more grounds of attach namely on the basis of the negligence by the defendants, though no additional

relief was asked for by way of additional damages or fresh relief. This additional ground of attack is said to be based on the report of the court of

enquiry appointed to inquire into the above said air accident. The said report dated 22-9-1978 was no doubt published on 26-12-1978 itself.

In the above circumstances, the learned Trial Judge has allowed the amendment sought for negativing the contention of the defendants that the

amendment would amount to introduction of a new cause of action and that the proposed amendment would be hit by the law of limitation. The

learned Judge also observed that, because the report of the court of enquiry has been published in the newspapers on 26-12-78, it could not be

possibly stated that the plaintiffs had knowledge or the report even on that date, that they themselves alleged that they come to know of the findings

of the said report only later and that mere delay in seeking the amendment was not sufficient to reject the claim of the plaintiffs. The learned Judge

also observed that in the suit C.S. 516/78 filed by the heirs of another victim of the same air crash, the findings of the court of enquiry had been

mentioned in the original plaint itself.

The learned counsel for the appellant argued before us that the amendment should not have been allowed since the claim based on the above

said negligence would be barred by the Law of Limitation and in support of his contention he relied on the decisions reported in L.J. Leach and

Company Ltd. Vs. Jardine Skinner and Co., and Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, .

We are unable to accept this contention. First of all, in this case no fresh or additional relief is ought for, but only one more ground of attack is

sought to be added to substantiate the original relief itself, and no new cause of action is sought to be introduced by the amendment. In this

connection, the following observation in Vineet Kumar Vs. Mangal Sain Wadhera, is significant.

Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an

addition of a new cause of action, or raise anew case, but amounts to no more than adding to the facts already on the record, the amendment

would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking the benefit of S. 39 of the

new Act there is a change in the cause of action. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, , this Court dealing with the cause of

action observed as follows (at p. 98 of AIR).

The expression ""cause of action"" in the present context does not mean ""every fact which it is material to be proved to entitle the plaintiff to

succeed"" as was said in Cooke v. Gill (1873) 8 CP 107 in a different context, for if it were so, no material fact could ever be amended or added

and, of course no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a

new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unices Property Corporation Ltd. (1962) 2 All

ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile.

Even in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , it was only observed as follows (at page 362 (of AIR) :

It is no doubt true that courts would, as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on

the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered,

and does not affect the power of the court to order it, if that is required in the interests of justice. In Charan Das v. Amir Khan, AIR 1921 PC 50

the Privy Council observed ;

That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the

effect is to lake away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are

out weighed by the special circumstances of the case."" Vide also Kisan Das v. Rachappa, 1909 1LR 33 Bom 644.

So, even where a fresh suit on the amended claim is barred by limitation on the date of the application, it will not be an absolute bar for the

amendment to be allowed. The Supreme Court has only observed that it is a factor to be taken into account in exercise of the discretion as to

whether amendment should be ordered. Even in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , the following observation in

(1909) 33 Bom 644 was approved :

The ultimate test therefore still remains : Can amendment be allowed without injustice to the other side, or can it not?

In the above said ILR (1909) Bom 644 the suit was for dissolution of partnership and accounts and the plaintiffs alleging that in pursuance of a

partnership agreement they had delivered Rs. 4001/- worth of cloth to the defendants and the Subordinate Judge found that the plaintiffs did not

deliver the cloth, but came to the concousion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of

partnership and prayed for leave to amend by adding a prayer for recovery of Rs.4,001/- At that date, the claim for the money was barred by

limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim. This decision in ILR (1909) Bom 644 which has

been approved by the Supreme Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , squarely applies to the present

case.

We also do not think that any injustice would be caused to the appellants if the above said amendment is allowed particularly in view of the

other factor that in the above referred to other suit C.S. 516/78 filed by the heirs of another victim of the same air crash, the finding of the court of

enquiry have been mentioned in the original plaint itself. In the circumstances, the discretion exercised by the learned trial Judge cannot be said to

be erroneous. Hence these appeals are not admitted but dismissed. No costs.

Appeals dismissed.