Bamdeo Upadhya vs Kshetriya Shri Gandhi Ashram and Another

R.B. Mehrotra, J.—The substantial question of law involved for consideration in the present second appeal is as to whether the order of the lower appellate Court rejecting the plaintiff''s application for amending the plaint at the lower appellate stage by its order dated 10.2.1988 is sustainable in law.

For determination of the aforesaid substantial question of law the facts necessary to be stated for the decision of the second appeal, are as under.

Bamdeo Upadhya, the plaintiff filed a suit No. 406 o 1976 in the Court of 5th Munsif Magistrate, Ballia against Kshetriya Sri Gandhi Ashram, Phephna (Ballia) and one Sri Ram Yagya Singh, Secretary, Kshetriya Sri Gandhi Ashram, Phephna. In he aforesaid suit, the plaintiff prayed for a relief of mandatory injunction against the defendants restraining them from interfering in the functioning of the plaintiff as an employee of Kshetriya Sri Gandhi Ashram, Phephna. The trial Court decreed the suit of the plaintiff holding that the termination of the plaintiffs services was patently illegal. The trial Court recorded a categorical finding that the services of the plaintiff including all the employees of Gandhi Ashram are governed by Ashram Sewa Niyam, 1972 and there is a clear provision in Rule 16 of the aforesaid Rules that if any complaint is made against an employee, the employer will serve a show cause notice along with charge-sheet asking the employee to give his reply and in case the charges are denied by the employee, then an Enquiry Officer will be appointed and on his report, the matter will be considered. The trial Court further held that the provisions of the Rules have not been complied with and the services of the plaintiff have been arbitrarily terminated by the respondents which is in violation of the Rules framed by Gandhi Ashram for governance of its employees, as such held that the service of the employee was illegally terminated by the defendants. The trial Court also rejected the defendants'' objection that the suit was not maintainable, as it was for enforcement of a personal contract. The trial Court took a view that since the Institution was registered under Societies Registration Act and was established for promoting public cause of organising sale of Khadi which will symbolise freedom movement, are public Institutions are not private bodies.

Aggrieved by the aforesaid judgment, the defendants filed Civil Appeal No. 389 of 1980, Kshetriya Sri Gandhi Ashram v. Bamdo Upadhya. Some of the grounds raised in the aforesaid appeal by the defendants were regarding maintainability of the suit on the ground that the defendants were not statutory bodies and the suit of the plaintiff for enforcement of the personal contract, was not maintainable. In the light of the grounds raised by the defendant sin Appeal, the plaintiff filed an application seeking only amendment in the relief of the plaint which was as wider:

(c) In the alternative of relief (a) and (b) the plaintiff may kindly be allowed such damages for compensation as this Hon''ble Court may deem fit and proper in the circumstances of the case.

The 1st Additional District Judge, Ballia vide his order dated 10.2.1982 has allowed the defendants appeal and has set aside the judgment of the trial Court only on the ground that the suit, as framed by the plaintiff, was not maintainable, as relief sought in the plaint was essentially for enforcement of a contractual obligation. The lower appellate Court has placed reliance on a decision of the Supreme Court in the matter of Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, .

The lower appellate Court while deciding the aforesaid appeal, first considered the amendment application moved by the plaintiff in the appeal. The lower appellate Court rejected the amendment application mainly on the ground that the reliefs sought by the amendment at the appellate stage by the plaintiff claiming damages as an alternative, are barred by time and on the aforesaid basis held that the relief sought to be added is already tune- barred. The appellate Court since rejected the amendment application, it did not advert itself to the legality of the termination of the services of the plaintiff or on the claim of damages as a consequence thereof. The only ground raised in the appeal is that the lower appellate Court has erred in law in rejecting the plaintiff''s application on the ground that the claim of the plaintiff is barred by time on the date the application has been made.

I have heard Sri A.N. Bhargava, Learned Counsel for the appellant and Sri Sidheshwari Prasad, Learned Counsel for the respondents.

In Gauri Bala Dutta Vs. IIIrd Addl. Civil Judge, Varanasi and another, , I have held that the amendment in the writ petition seeking to raise a new plea at the appellate stage should be allowed if its vital for adjudication of the controversy between the parties. In the aforesaid judgment, f have placed reliance on the following judgments:

In Pandit Ishwardas Vs. State of Madhya Pradesh and Others, at page 552, it has been held that there is no impediment or bar against the appellate Court permitting amendment of pleadings, so as to enable a party to raise a new plea.

In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, , the Court observed that the rules of procedure intend to have been made for administration of justice.

In U.P. State Electricity Board, Lucknow v. M/s Searsole Chemicals Limited, 1994 (2) UP CCR 1071, the learned single Judge of this Court refused to interfere in the discretion of the lower, appellate Court allowing amendment of a plaint. The contention of the counsel for the revisionist was that allowing such a claim will be permitting a time-barred claim to be brought within the purview of the suit. The Court held that the amendment relates back to the ate of the presentation of the plaint is only notional. Such notional conception will come into play only if the plaint is amended.

In Raj Kumar Mohan Singh v. Saran Singh, reported in AIR 1970 SC 42, the Hon''ble Supreme Court held that in appropriate cases even a time-barred claim can be allowed.

In Jagdish Singh Vs. Natthu Singh, , the Supreme Court was considering a situation where permissibility of the amendment of a plaint relating to the relief of compensation in addition to or in lieu of specific performance, the Court held that if the amendment relates to the relief of compensation in lieu or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance, the Court will allow the amendment at any stage.

Keeping in mind the aforesaid decisions, it is to be examined as to whether any prejudice would have been caused to the defendants, had the appellate Court permitted the amendment application of the plaintiff at the stage of the first appeal;

In the amendment application, only amendment was sought for adding a relief. The plaintiff did not ask for any permission of evidence. The plaintiff was not interested in delaying the matter. The question as to whether the claim was barred by time or the plaintiff was entitled to damages, if any, would have been gone into only after permitting the amendment. Rejecting the application on the ground that permitting a plaint claiming for a relief of damages will be permitting a time barred claim to be entertained is wholly untenable in law. In the circumstances of the case there was no legal justification for refusing the amendment application, as consistently it has been held that the Court should be liberal in allowing the amendment application. No prejudice would have been caused to the defendants, if the amendment application would have been allowed at the appellate stage.

I am clearly of the view that the lower appellate Court was not justified in rejecting the plaintiffs amendment application.

I accordingly allow the appeal, set aside the judgment of he first Additional District Judge passed in Civil Appeal No. 389 of 1980, dated 10.2.1982 and allow the amendment application moved by the plaintiff being paper No. 12 Ka-1 filed in the Court of 1st Additional District Judge, Ballia. The plaintiff may be permitted to amend his plaint by adding relief (c) in his plaint and the lower appellate Court should decide the defendant''s appeal in the light of the amendment plaint.

The appeal may be heard thereafter afresh and may. be decided in accordance with law in view of amended plaint. Since the matter is old one the lower appellate Court will decide appeal within six months from the receipt of record.

The office is directed to forthwith dispatch with the record of Courts below.