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Judgment
P.S. Dinesh Kumar, J. - The petitioner/plaintiff is assailing the order dated 7-1-2016 passed in O.S. No. 196 of 2014 on the file of the Principal Senior Civil judge, Mangalore, rejecting the application filed under Order 14, Rule 5 of Civil Procedure Code, 1908 to amend/re-frame Issue 1 and delete Issue 4.
Heard Sri Rayappa Y. Hadagali, learned Counsel appearing for the petitioner.
The petitioner is a Port Trust. The suit is for recovery of money. The first respondent is the owner of a vessel. The case of the petitioner is that the vessel was berthed on 9-5-2008 for blinkering. Though, it was allowed to sail on 10-5-2008, the vessel did not sail because of the internal disputes between the owner and agent. The ship was inspected on 16-5-2008 by the Mercantile Marine Department (hereafter referred to as "MMD") of the Government of India. Since it was found not seaworthy, MMD issued an order of detention and asked the petitioner not to permit its sail. Hence, vessel remained in the berth of the Port. The respondents/defendants failed to carry out rectification as directed by the MMD. Plaintiffs instructed the defendants to take steps for immediate rectification. However, the crew abandoned the vessel and left it in an unmanned position, causing risk to navigation. Thus, the vessel remained idle without any repairs for nearly 2 years and 8 months. Notices were issued by the petitioner to pay port dues. ''The demanded payment was not made. Tire matter was under consideration by this Court in Writ Petition No. 2338 of 2012. After disposal of the said writ petition, the said vessel was sold and a sum of Rs. 55,12,345/- was realised. The first respondent was still due in a sum of Rs. 1,99,26,329/-. Hence, the petitioner filed the instant suit for recovery of money with interest.
Respondents/defendants have contested the suit by filing written statement.
Based on the pleadings, the following issues were framed:
Whether the plaintiff prove that, defendants not carried out rectification of their ship which is remained in the berth of plaintiff port from 10-5-2008 despite of direction of Mercantile Marine Department?
Whether the plaintiff proves that, despite of instruction of plaintiff, defendants have not removed vessel (ship) from plaintiff-port?
Whether the plaintiff proves that, they are entitled to levy Penal Berth Hire charges with effect from 12-6-2008 against the defendants?
Whether the plaintiff proves that, defendants have abandoned the ship in plaintiffs port from past 2 years 8 months and subsequently all the crew members left the ship?
Whether the plaintiff proves that, they are entitled to recover a sum of Rs. 3,12,69,951/- along with interest at 15% per annum from the defendants?
Whether the plaintiff is entitled for the relief as claimed in the suit?
What order or decree?
After framing of issues, the petitioner filed the instant application to amend/re-frame Issue 1 and to delete Issue 4.
The Issue 1 reads as follows:
"Whether the defendants prove that they had carried out all the rectifications and obtained the clearance from MMD for the ship Seagull to sail?"
The Trial Court has rejected the said application by the impugned order.
Assailing the correctness of the impugned order, Sri Rayappa, learned Counsel for the petitioner submits that Issue 1 casts burden on the petitioner to prove the fact which is within the knowledge of the defendants. Drawing the attention of this Court to Section 106 of the Indian Evidence Act, 1872 he submits that right to correct the issue before the Trial Court ought to have been permitted as sought in the I.A. Adverting to para 3 of the written statement, he submits that Issue 4 is superfluous, because the respondent 1 has admitted that the crew of the vessel had to leave due to unavoidable circumstances. He further submits that the first defendant has admitted in para 11 that the crew had visa problem. Thus, the admission on the part of defendant 1 renders Issue 4 as superfluous and the Trial Court ought to have considered its deletion. Accordingly he prays for setting aside the impugned order and to allow the I.A. filed by the petitioner.
I have given my careful consideration to the submission made by the learned Counsel for the petitioner and perused the material papers.
Issue No. 1 is based on the pleadings contained in the plaint. It is the specific case of the petitioner that the vessel had remained in the port and the respondent had failed to carry out rectification as directed by the MMD, Surveyor. The petitioner has precisely stated thus:
"The said ship was allowed to sail on 10-5-2008 after taking clearance from the plaintiff. However, it was not sailed because of some internal dispute between owner and its agent. Subsequently, the said ship was inspected by Mercantile Marine Dept. (MMD) of Government of India on 16-5-2008 for its seaworthiness and then it was found that the ship was not seaworthy and it required rectification to make it seaworthy. Therefore, MMD issued order on 6-5-2008 for detention of the said vessel and asked the plaintiff not to permit its sailing. Thus the said vessel remained in the berth of the plaintiff-Port. The defendants failed to carry out the rectifications as directed by MMD, Surveyor since there was no visible corrective action by the owner. Plaintiff instructed the defendants to take immediate action for rectification within 15 days failing which penal berth hire charges shall be levied with effect from 12-6-2008. The crew members belonging to Bangladesh were suffering due to non-payment of their salary and facilities in the vessel. The plaintiff has sent several letters to the defendants for removal of the said ship from port but the defendants have not taken any action for rectification of the defects or removal of the vessel from the port. The condition of the vessel was deteriorating and it would have sunk at any time in the berth which may cause environmental problems like oil pollution etc. The crews of the said vessel also had left and abandoned leaving the vessel unmanned posting a heavy risk to the navigation in the port waters. The certificate of the vessel had expired and such vessel could not move from the port unless the owner revalidates all the statutory certificates. Repeated requests by the port to get the record cleared from MMD did not give any result. The owner of the vessel (defendant 1) has accepted that overstay but stated that it was due to internal disputes between the defendants vide their letter dated 25-11-2008 and there is no role of plaintiff."
The petitioner has reiterated in para 5 that the respondents failed to carry out repairs and rectification even after passage of 2 years 8 months and abandoned the ship by signing of all crew members. Thus, it can be safely inferred that it is the specific claim of the petitioner that the respondents failed to carry out the rectifications. Thus, Issue 1 is in consonance with the assertions made by the plaintiff contained in paras 3 and 5 of the plaint. Therefore, the instant application, wherein the petitioner has sought to amend Issue 1 and to recast it in the manner noted supra is untenable.
Insofar as deletion of issue 4 is concerned, it is the case of the petitioner herein that despite there being admission in the written statement, a superfluous issue has been framed by the Trial Court, which is not required. In any event, it is for the plaintiff to prove the assertions made in the plaint. If any admissions are made as claimed before this Court, the petitioner can make use of the same in an appropriate manner as and when required.
In view of the aforesaid discussions, the writ petition does not merit any consideration. Accordingly, the same is dismissed.
No costs.