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Judgment
Manohar Pershad, J.—This is a petition in revision on behalf of the plaintiffs against the judgment and decree of the Court below dated 6-6-1951, dismissing the plaintiffs'' suit. The facts in brief are:
Goverdhan Bang and joint family business of Kani Ram Lakshminarayan, Plaintiffs, filed a suit for I. G. Rs. 1027/10/- against the Government (Union of India), owning the G. I. P. and the N. S. Railways. The allegation in the plaint is that on 28-12-1946 Messrs. Kirpa Shankar Gangaram or their representative made over to the first defendant Railway Administration at their Wadi Bandar, parcel Booking Office, two packages (one bag pista and the other of Qulai) bearing private marks of the sender for carriage and delivery to plaintiff No. 1 at Hyderabad - Deccan Railway Station Kirpa Shankar Gangaram sent the Railway Receipt to plaintiff No. 1 with the instructions that after taking delivery of the consignment, he should deliver one bag Pista to Plaintiff No. 2. The suit consignment has not been delivered to the plaintiff No. 1 in spite of repeated demands. Hence the plaintiffs are entitled to a compensation for nondelivery of the suit consignments. Defendant No. 1 in his written statement denied that any consignment containing one bag of Pista and other of qulai was booked by Kirpa Shanker Gangaram on 28-12-1946 and stated that from Wadi Bandar two bags one of Karak and the other bag of Alu Buqara were booked under PWB/3614/93. The bag containing Karak was offered to the consignee who refused to take delivery, and it was, therefore, sold by auction. Apart from this some legal objections were also raised regarding the maintainability of the suit and the jurisdiction of the Court.
A similar written statement was filed by plaintiff No. 2. On 19-3-1951, Plaintiff No. 1 put in a petition for amendment stating that due to oversight and by reason of a weak carbon being used by the staff while preparing the R. R. resulting in weak and faint impression of words, the plaintiffs have claimed one bag of Pista and one bag of Qulai instead of its actual contents of one bag of dry dates and the other bag of Alu Buqara; that for fair and just disposal of the suit, and for determining the real question in controversy, the following amendments are necessary;
(a) the words ''one bag dry dates'' and ''one bag of Alu Buqara'' be substituted at all places in the plaint instead of the words ''one bag of Pista and one bag of Qulai'' wherever they have been used;
(b) In para. 6 of the plaint the details of the amount of I. G. Rs. 1027/10/- may be struck off and the following details may be substituted instead of the said details in the said para.;
(i) the value of one bag of dry dates weighing 2 mds. at Rs. 71/- per md. the same being prevalent in the Hyderabad market in the first week of May 1948: total Rs. 142/-;
(ii) the value of one bag of alu buqara weighing 2 mds. at O. S. Rs. 130/- per md- total Rs. 260/- less railway freight and customs duties not paid - balance Rs. 340/-;
(c) The words ''O. S. Rs. 340/-'' may be substituted in all places instead of the words '' I. G. Rs. 1027/10/- in the plaint, and
(d) That the following para may be added as per para 6(a) of the plaint.
The second defendant-railways offered one bag of dry dates on 13-12-1949, which was in a damaged and deteriorated condition and did not bear the proper marks, to the plaintiff who denied to accept the same.
This petition was opposed by the defendants and a reply was filed on their behalf to the effect that the plaintiffs are not entitled to an amendment as this would not only alter the cause of action and the nature of the suit, but that the plaintiffs'' suit will be barred by limitation if the amendment is allowed: that it will affect the jurisdiction and that finally, it will seriously hamper the defendants Who cannot be compensated by costs.
The Court below after hearing the arguments of the parties regarding the amendment, accepted the plea of the defendants and rejected the petition for amendment. In the result, the suit was dismissed. Hence this petition in revision.
In this petition in Revision it is argued on behalf of the petitioner that the court below has erred in rejecting the petition for the amendment holding that the amendment would not only change the nature of the suit but deprive the defendants of the vested right and would also affect the jurisdiction of the Court. It is contended that the suit is for compensation of non-delivery of the goods. Originally in the plaint it was stated that the consignment was for one bag of Pista and one bag of Qulai, and through the amendment, the plaintiffs only wanted to state that the consignment was not for one bag of Pista and one bag of Qulai but for one bag of Alu Buqara and one bag of dry dates. By these amendments neither the cause of action nor the nature of the suit is altered. It is only when the cause of action and the nature of the suit is altered that the Court is justified in rejecting the petition for amendment. Reliance is placed on the cases of - Muhammad Raza Vs. Zamiruddin, and - ''Jamini Bala Biswas v. Bank of Chettinad Ltd., AIR 1935 Rang 522 (B).
On behalf of the other side Shri Srivastav, Advocate, very strongly urged before me that the amendment would not only alter the cause of action and the nature of the suit but would deprive the defendants of the vested right and would also affect the jurisdiction of the trial court. In view of this, he contends that the amendment should not be allowed. Reliance is placed on the cases of - ''Kokamal Madho Ram v. Gulab Singh Gurudat Singh'', AIR 1925 Bern 248 (C); - AIR 1928 933 (Lahore) and - "Gulam Mohd. v Mehta Chandras'', AIR 1927 Lah 771 (E>. It is also contended that when the Court below has rejected the petition for amendment, this Court ought to be very reluctant in interfering in the discretion of the court below. I find that similar contention was raised on behalf of the defendants before the trial court also.
In order to appreciate the view points of the learned advocates, a reference to O. 6, R. 17 is necessary which runs thus:
The Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just arid all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.
Thus, it is clear from this that amendment of the pleadings is in the discretion of the Court, but that discretion has to be exercised according to judicial principles. The main consideration to be borne in mind in exercising the discretion is that the rules of procedure have no other aim than to facilitate the task of administering justice, that multiplicity of suits should be avoided and that the interests of substantial justice should be advanced. While considering whether the amendment should be allowed, the court need not or ought not to go into the alleged falsity of the case in the amendment. So also, the court ought not to give its finding on the merits of the amendment sought for without first allowing the amendment, framing an issue thereon and allowing both the sides to adduce evidence. But there is a limitation on the wide powers of the Court to amend the pleadings viz., that the court cannot by way of amendment substitute one distinct cause of action for another, or change the subject-matter of the suit.
In - AIR 1922 249 (Privy Council) their Lordships of the Privy Council observed as follows:
All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit.
The reason of the above rule is that substitution of a totally new case in place of the original one cannot be said in any sense to be an amendment of the original claim. Nor can it be said that a totally new "case is necessary for the purpose of determining the real question in controversy between the parties", that is, the controversy disclosed in the suit as originally framed. It follows from this principle that under the present Code:
(i) An amendment will generally be allowed where the nature of the suit is not altered provided it does not cause prejudice or surprise to the opposite party, vide - AIR 1949 5 (Nagpur) - -Rohini Kumar v. Niaz Mohd. Khan'', AIR 1944 Cal 4 (H) "Eusoof Karva v. Mrs. Niemeyer & Co.'', AIR 1941 Rang 37 (I) and - AIR 1940 256 (Lahore) and
(ii) An amendment may be allowed even if it introduces a new ground of claim or allegation of fact inconsistent with the original pleadings where the court thinks just and necessary, vide - AIR 1941 289 (Nagpur) Mangammal Vs. Rengappa Naicker and Others, Pinnamaneni Gopalakrishnayya and Others Vs. Veeramachunemi Ramaswami, and - '' AIR 1938 244 (Lahore)
Similar is the gist of the authorities cited by the learned advocate on behalf of the respondents. In view of this, I do not wish to discuss them in detail. To my mind, therefore, the question to be considered is whether by the proposed amendment the nature of the suit or the cause of action is altered. In the present case, plaintiff has claimed damages for non-delivery of the goods. In para 1 of the plaint, he has mentioned the goods as one bag of Pista and one bag of Qulai: by the amendment, the plaintiff wants to insert one bag of dry dates and one bag of Alu Buqara, This is the amendment which the plaintiff wants to make in the plaint. The cause of action was and is the non-delivery of the goods which would'' remain in either case. It is, therefore, difficult to hold how it can alter the cause of action or the nature of the suit itself. It is urged that it would deprive the defendants of the vested right, as for instance, the right of limitations
It is true that as a rule, plaintiff will not be allowed to amend his plaint by introducing a new cause of action which since the date of the suit has become barred by the statute of limitation. In other words, no such amendment should be allowed as will take away the valid defence under the law of limitation. Thus, where a plaintiff, though entitled to various alternative relief''s sued only for one of the relief''s within the period of limitation, he should not be allowed to amend the plaint in such a way as to enforce his other relief''s which have become time-barred at the date of the amendment.
The rule prohibiting the amendment which takes away an existing right from the defendant, in my opinion, "refers to a legal right which has accrued to the defendant and not a bare right to plead limitation. Hence where there is no attempt by the proposed amendment to introduce a new cause of action or to claim a new relief, the rule, in my opinion does not apply. I am supported in this view by the case of - AIR 1942 161 (Oudh) - Srirangan Chettiar Vs. M. Sornam Pillai and Others, and -Ramnath Hajarimal v. Mohanlal Radhakisan'', AIR 1939 Nag 23 (Q).
It, is true that if the defendant is deprived of any vested right, then in that case the court would be reluctant to allow as amendment. In this case no question of depriving the right of the defendant arises at all. The defendant claims that period of limitation would start from the date of the non-delivery of the goods; that would hold good and would not be affected by the amendment. It is further contended that the amendment should not be allowed as the application is not in good faith.
It is true that it is one of the necessary conditions for the exercise of the Court''s discretion in allowing an amendment that the applicant has acted in good faith. But as a general rule, leave to amend ought not to be refused merely because the applicant has not acted bona fide, but would be refused if he has been acting mala fide. To my mind, this contention of the learned Advocate also does not hold good. Originally, the plaintiff had claimed I. G. Rs. 1027/10/- and by the amendment he claims only O S. Rs. 340/- which cannot be said to be mala fide. It is "urged that the plaintiff''s claim is more in the nature of a gamble. I fail to appreciate this argument either. Plaintiffs have paid a higher court fee and are claiming only O. S. Rs. 340/-. The learned District and Sessions Judge also has held that the plaintiffs have not acted bona fide. He has based his conclusion on two facts:
(i) That the plaintiffs in para 2 of the plaint have stated that Kirpa Shanker Gangaram sent the receipt with the instructions that one bag of Pista should be delivered to plaintiff No. 2 after taking delivery which clearly rules out the possibility of any mistake occasioned by the faint-writings, and
(ii) When the Railway authorities offered to deliver the consignment to the plaintiff, he refused to accept.
To my mind, these facts do not constitute mala fide of the plaintiff nor do they as a matter of fact go to prove that the plaintiff has not acted bona fide.
The next question that remains to be considered is whether an amendment could be refused on the ground that it affects the jurisdiction of the Court. The lower Court has held that as it affects the jurisdiction of the Court, the amendment cannot be allowed. I am afraid. I cannot agree with this opinion. I may only point out that while considering whether an amendment should be allowed or not, the court ought not to go on the merits of the case. If, after allowing the amendment, the court comes to the conclusion that the court has no jurisdiction, the court could return the plaint to the plaintiff to be presented in the proper court.
The last point that has to be considered is whether this Court can interfere in revision. I may point out at this stage that the present suit is filed under the Hyderabad Small Cause Courts Act (VI of 1330 P.). Section 12 of the Act makes provisions for revisions and S. 14 lays down the powers of superintendence of the High Court. Section 12 corresponds to S. 115, Civil P. C. The power of revision under S. 12 of the Hyderabad Small Cause Courts Act is wider than that under Civil P. C. It is true that the powers conferred are discretionary and should, therefore, be exercised for the purpose of doing material justice. Under S. 115, Civil P. C, the High Court cannot interfere when the lower court having jurisdiction has, arrived at a wrong decision on a question of fact or even on a point of law. But the bowers conferred under S. 12 of the Hyderabad Small Cause Courts Act are wide enough to justify an interference in some cases on a question of fact and law also.
Thus, after giving a careful consideration, I feel that the court below has erred in rejecting the petition for amendment and this is a fit case where interference is called for in revision. The plaintiff will have, however, to pay to the defendant Rs. 25/- by way of costs. The petition in revision is, therefore, allowed, judgment of the court below is set aside and the case is remanded to the trial court with the direction that the court should proceed with the case on the merits after allowing the amendment to be incorporated. Costs of this Court to abide the result of the suit.