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Judgment
D.B. Lal, J.—These are two petitions, O.M.P. 135 of 1973 and O.M.P. 27 of 1974. The two petitions arise in the following circumstances:
A fire insurance policy was obtained by T.C. Butail for his building known as Dilkusha situate in Lower Bazar, Simla. The said policy was obtained on 7-11-1971 and it so happened that the fire broke out on 8-11-1971. The risk covered was for Rs. 71,954/- and T.C. Butail made a claim upon the United India Fire and General Insurance Co. Ltd. Clause 18 of the insurance policy, according to T.C. Butail, provided for the appointment of an arbitrator. Accordingly Shri Kailash Chand, Advocate was appointed by Butail as the sole arbitrator and the Respondent insurance company was informed by a notice. However, the said insurance company objected that Shri Kailash Chand, Advocate could not be appointed the arbitrator. Thereafter the proceedings started ex-parte before the arbitrator and the award was given which is dated 13th March, 1973. The arbitrator has awarded Rs. 51,000/- to Butail and has further made an application to this Court u/s 14 of the Arbitration Act whereby he contended that the claimant Butail had asked him to file the award in court which he was doing, as Butail naturally wanted a decree to be passed in terms of the award. Along with the filing of the award, Butail came with his objection O.M.P. 47 of 1973 to the effect that he should have been awarded the entire amount of Rs. 71,954/-instead of Rs. 51,000/-and to that extent the award should be set aside. Against that objection, the Respondent insurance company filed a reply and also a petition O.M.P. 133 of 1973 seeking amendment in their reply. Butail has now withdrawn O.M.P. 47 of 1973 and the objection of Butail along with its reply and subsequent amendment application of the company to '' that reply have all become infructuous and need not be decided.
However, after the award was filed in Court the insurance company filed their objections under Sections 30 and 33 of the Arbitration Act. They wanted the award to be set aside for misconduct of the arbitrator. It was inter alia stated in paragraph 7(e) of their objection O.M.P. 60 of 1973 that the Petitioner Butail did not disclose material facts and for this reason no valid contract of insurance was arrived at between the parties. While giving particulars of these material facts, the insurance company recited that the Petitioner did not disclose in the proposal form that there was an oil mill contiguous to the insured building which was necessary and incumbent upon the Petitioner to disclose. As such the contract of insurance, according to the company, was void ab initio. A reply to these objections was filed by the Petitioner on 20-6-1973. O.M.P. 135 of 1973 is an application sought for by the insurance company for amendment of paragraph 7(e) of O.M.P. 60 of 1973 and for addition of an additional paragraph 7(j) in O.M.P. 60 of 19 73. The amendments sought for are in the following terms. It is stated that in the particulars of "material facts" not disclosed by the Petitioner in addition to the oil mill which existed contiguous to the building, the Petitioner did not further disclose that in the building itself there was an arms and ammunition store as well as a flour mill. According to the company, these particulars are essential to be incorporated as details to material facts not disclosed, so as to render invalid the proposal for insurance. That was the amendment sought for in paragraph 7(e) of O M.P. 60 of 1973. That apart the insurance company also wants paragraph 7(j) to be incorporated in O.M.P. 60 of 1973 which is to the effect that due to all this non-disclosure a fraud was committed by Butail and the matter could not be adjudicated upon by an arbitrator and must be referred to a court of competent jurisdiction.
The Petitioner Butail has serious objections to these amendments. It is stated that the amendments are being sought for after expiry of 30 days period prescribed under Article 119 of the Limitation Act, 1973. As such, these amendments cannot be incorporated in O.M.P. 60 of 1973. It is further submitted that these amendments have been delayed and could be taken up initially in their objection. At any rate, it is stated that the Petitioner should be given an opportunity to file an amended reply to the objections O.M.P. 60 of 1973.
O.M.P. 27 of 1974 is an application u/s 5 of the Indian Limitation Act, which is moved by the insurance company by way of abundant caution. It is stressed that the amendment sought for being mere details of omissions committed by the Petitioner must be incorporated in the objections submitted by them. If that is permitted, the pleas would take effect from the date of the filing of the objections and no question of limitation would arise. However, if these pleas are taken to be new pleas by the Court, the assistance of Section 5 of the Limitation Act is sought for and it is prayed that there was a sufficient cause for the insurance company not to have taken up these objections at the earlier stage. As such, at any rate, the amendments are stated to be necessary and it is prayed that the same be allowed. The Petitioner Butail has filed objection to O.M.P. 27 of 1974 and according to him no case is made out for extension of time u/s 5 of the Limitation Act.
The law as to amendment in pleadings appears to be fairly well settled by the Supreme Court. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, the following rule has been laid down:
All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in cost. It is merely a particular case of this general rule that where-a Plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the Defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same; can the amendment be allowed without injustice to the other side, or can it not
For the reasons to be stated, in my opinion he amendment sought for will not result in injustice to the Petitioner. The particulars of non-disclosure of material facts are being elaborated. The plea is already there that Butail did not disclose material facts and particulars, so that a valid contract of insurance did not come into existence. Now that those material facts were, is sought to be explained by these amendments. As regards the plea of fraud, it is a consequential plea to the nondisclosure of material facts. That being so, the plea of fraud cannot be considered to be a new plea. Rather it arises from the fact of non-disclosure amounting to fraud in the opinion of the insurance company. Therefore, neither a vested right is created in favour of the Petitioner because of previous non-disclosure of these particulars, nor a question of limitation should arise. The particulars now sought to be added are no doubt necessary for the purpose of determining the real questions in controversy between the parties. No injustice is caused to the other side and hence the requirement of law is satisfied.
In. A.K. Gupta and Sons Vs. Damodar Valley Corporation, it has been held that even a new case can be introduced by way of amendment of pleading provided the relief is not barred on account of its omission at the previous stage. Where, however, the amendment does not constitute the addition of new cause of action or does not raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation. In the instant case, the primary plea of non-disclosure of additional fact is already there and only particulars are being supplied. That would not be as if a new cause of action is set up. Rather additional facts are being supplied to the same cause of action. Similar will be the position regarding the plea of fraud. Therefore, the plea of limitation will not prevail in view of this decision of the Hon''ble Supreme Court.
In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, their Lordships observed that the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any narrow of technical limitations. In the language of their Lordships:
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side
. Again, it can be stated that these amendments will not cause injustice to the other side. The plea is already there and a mere amplification of that plea is being sought for.
I am, therefore, of opinion that these amendments are not only necessary for determining the real controversy between the parties but these are being sought for by way of amplification of a plea which is already there. A new cause of action is not being set up and in fact more particulars are being supplied which were left out before, as these were not known to the insurance company.
In view of what I have stated above, the amendments are to be allowed and the amended reply is already filed by the insurance company. As to the application u/s 5 of the Limitation Act, the same does not appear to be necessary. When the amendments are allowed, they take effect from the date of the filing of the objections under Sections 30 and 33 of the Arbitration Act, and all the objections are to be taken as filed within the prescribed limitation. As these amendments cannot be considered new pleas, there is no question of these pleas having become time barred so that the assistance of Section 5 of the Limitation Act is required.
O.M.P. 135 of 1973 is, therefore, allowed and the amendments sought for are deemed incorporated in the objection O.M.P. 60 of 1973. The Petitioner-claimant shall, of course, file a supplementary written statement against these amended objections which he must do within one month.