Jaspal Singh J.:— Is Order 6 rule 17 of the Code of Civil procedure restricted or controlled by Order 7 rule 11? This is the question which has given birth to this order.
2. The facts need not detain me for long A bon sai view would do. The plaintiff has sought recovery of licence fee for a period subsequent to the service of notice or revocation of the license. The defendant states that the plaintiff can lay no claim for license after the revocation of the license and that consequently the plaint discloses no cause of action. The plaintiff, instead of lacing the challenge, is seeking permission to amend the plaint. And, it is this prayer which has generated the heat, for, as per the defendant, the plaint has necessarily to be rejected, and Order 7 rule 11 can-not be defeated by taking recourse to Order 6 rule 17 and by amending the plaint. Two judgments of this court namely Edwin Bhave v. Hari Chand, 1982 ILR (Delhi) Vol. 1 p. 697, and N.D Khannu v. Hindustan Industrial Corporation, AIR 1981. Delhi 305 have provided the required ammunition, for, admittedly, they do per se lend supports to what has been contended by the defendant.
3. Exploiting the judgments to the fullest, it is argued that when a plaint does not disclose a cause of action, it is mandatory upon the court to reject it under Order 7 rule 11 and that, in such a situation, the court has no power to permit the plaint to the amended. In short, the contention is that Order 7 rule 11, cannot be allowed to be defeated and destroyed by resort to Order 6 rule 17 since Order 6 rule 17 is controlled by and is sub-servient to Order 7 rule 11. 1 regret my inability to agree.
4. There is need to be remineded, lest we forget, that courts allow amendments not really as a matter of power but in performence of its loftier duty to deliver substantial justice. To quota Bowmen, L.J in Cropper v. Smith, (1884) 26 Ch. D. 700 at pp. 710-11:
“Now I think it is a well established principle that the object of Courts is decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself and in conformity with what I have heard laid down by the other divisions of the Courts of appeal and by myself as a member of it. I know of no kind of error or mistake which if not fraudulent or intended to overreach the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding mistakes in controversy and I do not regard such amendment as a matter of favour or of grace. Order 28. R. 1 of the Rules of 1883, which follows previous Legislature on the Subject says that All such amendments shall be made as may be necessary for the purpose of detemining the real question in controversy between the parties It seems to me that as soon as it appears that the may in which a party has framed his case will not lead to a decision of the real matter in controversy it is as much a matter of right on his part to have it conected, if it can be done without injustice as anything else in the case is a matter of right.”
5. This is the righteous path And, if this be so is it not necessary, in the ends of justice, to extend the beneficial legal principles ensconced in Order 6 rule 17 More so, when one hardly discerns any-thing in Order 7 rule 11 which may lead one to take the view that it takes away the power of the court to allow amendment or places hurdles in performance of its duty? After all what is the effect of Order 7 rule 11? It is, if I understend correctly, that the plaintiff would not be precluded from filing a fresh suit in respect of the same cause of action. If he so desires see Order 7 rule 13. If such be the effect, why not permit the amendment of the plaint so as to remove the defect and prevent the operation of the Rule? Why make him first invite the rejection of the plaint, then allow him to file a fresh suit at the expense of delay and heavy costs? Why not straightaway allow him to amend the plaint, remove the defect and permit him, thereby, to proceed with the same suit? Why this rigmarole? After all, procedural law is intended to facilitate and not to obstruct the course of justice. With respect, it has rightly been held in Baganmal v. Hong-Kong and Shanghai Banking Corp, AIR 1950 Bombay 345:
“It is perfectly true that it is incumbent upon the Court to reject a plaint that does not disclose a c? use of action, but it does not follow that it is not open to the Court to allow a plaint to be amended so that it should disclose a cause of action It is only when a plaint does not disclose a cause of action that the Court is called upon to exercise its power under O 7 R. 11 But the Court may prevent the operation of Order 7, Rule 11, and may save the plaint being rejected by exercising its power under 6, Rule 17, and allowing the plaint to be amended.”
6. I find myself further fortified by a judgment coming from the Jammu and Kashmir High Court and reported as Amarnath v. Union of India, AIR 1979 J & K 87. Even the Supreme Court in M/S Ganesh Trading Co. v. Moji Ram , AIR 1978 SC 484 seems to support the view that order 6, rule 17 would/act as panacea where “entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there” is not sought and that even “very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are coupled with.” (emphasis supplied).
7. The ouster of Order 6 rule 17 will throttle the very life line of Order 7 rule 11. Instead of promoting, it would defeat the ends of justice. I [refuse to be a paty to such an approach.
8. Before dropping the curtain, a word or two on the two judgments from this court. Both of them must be taken to be confined to their own facts and in any case, in both, applications for amendment were disallowed by the court in exercise of its discretion. They must, with respect, be taken to say no more.
9. Order 6 rule 17 is thus held to be neither restricted nor controlled by Order 7 rule 11.