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Chimanlal Ambalal v. Hasmukhlal And Anr.
Factual and Procedural Background
The petitioner originally instituted Summary Civil Suit No. 1877 of 1969 in the City Civil Court, Ahmedabad on 28-8-1969 to recover Rs. 10,500/-. A preliminary objection on jurisdiction was decided against the petitioner and the plaint was ordered to be returned to the plaintiff for presentation to the proper court. The petitioner challenged that order by filing a Civil Revision Application in this Court, which was rejected on 25-10-1972. The petitioner thereupon presented the plaint to the Court of the Civil Judge, Senior Division, Mehsana on 26-10-1972, where it was numbered Special Civil Suit No. 50 of 1972.
In the Mehsana suit the petitioner filed application Ex. 13 seeking amendments to the plaint. One amendment — to incorporate facts explaining delay in presenting the suit to the Mehsana Court — was allowed by the trial court. A second amendment sought to add a claim for interest (calculated at 12% per annum on Rs. 10,000 for the period 28-8-1969 to 25-10-1973, amounting to Rs. 3,790) and consequential changes to the prayer. The trial court disallowed this second amendment on the basis that Order 2, Rule 2(2) of the Civil Procedure Code prohibited subsequently suing in respect of a portion omitted or relinquished and that the omission had resulted in a legal right accruing to the defendants.
The petitioner challenged the trial court's order dated 5-2-1974 under Section 115 of the Civil Procedure Code by filing the present revision petition. The revision court heard argument, considered relevant statutory language and authorities, and ultimately allowed the revision petition, set aside the trial court's order disallowing the amendment, permitted the amendment, awarded costs to the petitioner, and directed that the trial court give the opponents reasonable time to file a written statement in response to the amended plaint, noting that the opponents could raise a time-bar objection as to a portion of the claim.
Legal Issues Presented
- Whether, under Order 2, Rule 2(2) of the Civil Procedure Code, a plaintiff may be permitted to amend the plaint in the same suit to include a portion of the claim that was omitted inadvertently at the time of presentation of the plaint.
- Whether the omission to include a claim for interest when presenting the plaint to the proper court operates as a relinquishment or omission that bars the plaintiff from subsequently including that portion by way of amendment in the same suit, or whether Order 2, Rule 2(2) applies only to subsequent suits brought after a decree.
Arguments of the Parties
Appellant's (Petitioner) Arguments
- Mr. B. R. Shelat, appearing for the petitioner, contended that the trial judge misinterpreted Order 2, Rule 2 of the Code. The petitioner had omitted the interest claim inadvertently when presenting the plaint to the Mehsana Court; the omission was not a case of bringing a separate subsequent suit on that portion.
- He argued that sub-rule (2) of Rule 2 of Order 2 bars a plaintiff from suing afterwards in respect of a portion omitted or relinquished, but that prohibition applies to subsequent suits and not to seeking an amendment in the same suit. Because no separate suit had been filed in respect of the omitted portion, the bar in O.2.R.2(2) did not apply to the present application for amendment.
Opponents' / Trial Court's Position
- The trial Court disallowed the amendment on the ground that the claim of interest, having fallen due before presentation of the plaint to the Mehsana Court, ought to have been included at that stage. The trial Judge held that by omitting it the plaintiff had effectively relinquished that portion of the claim and that, under Order 2, Rule 2 and its sub-rule (2), the plaintiff could not thereafter sue in respect of the portion so omitted or relinquished. The trial Judge concluded that a legal right had accrued in favour of the opponents/defendants which would be adversely affected by permitting the amendment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Upendra Narain v. Janaki Nath, ILR 45 Cal 305 = (AIR 1919 Cal 904) | Establishes that Order 2, Rule 2 does not prohibit amendment in the same suit where a claim was omitted through inadvertence; the rule bars a subsequent suit in respect of omitted portions after a decree, not an amendment prior to decree. | The court relied on this authority to support the proposition that O.2.R.2(2) applies to subsequent suits and does not prevent allowing an amendment in the one and only suit where the omission was inadvertent. This precedent was used to conclude that amendment should be permitted. |
| Krishnaji Ramchandra v. Raghunath Shankar, AIR 1954 Born 125 | Discusses the point of time relevant under O.2.R.2 — whether it is the institution of the suit or the date of decree — and states that the language of O.2.R.2 indicates the point of time is the institution of the suit; a later suit in respect of omitted portion is barred. | The court noted this authority's observations about the temporal operation of O.2.R.2 but observed that the instant case did not raise the point of time issue because no subsequent suit had been filed; the decision was cited in delineating the scope of O.2.R.2. |
| Mahomed Khalil Khan v. Mahbub Ali Man, AIR 1949 PC 78 | Privy Council authority referenced in Krishnaji Ramchandra concerning circumstances when separate suits might be barred under Order 2 rules. | Cited in Krishnaji Ramchandra and noted by the court; the present opinion references it as part of the jurisprudential background but did not treat it as decisive for allowing the amendment in the instant matter. |
| Jagat Singh v. Sangat at Singh, AIR (as cited in the text) — Privy Council observations | Shows that while a suit is undisposed of the Court may give leave to amend to include additional claims and that such amendments can be permitted rather than treating O.2.R.2 as an absolute bar. | The court relied on the Privy Council's observations to reinforce the conclusion that amendment can be allowed while the original suit remains pending and that Order 2, Rule 2(2) does not automatically preclude such amendment. |
Court's Reasoning and Analysis
The court analyzed the text of Order 2, Rule 2 and specifically sub-rule (2). It identified the distinction between (a) an omission or intentional relinquishment of a portion of a claim which results in a bar to subsequently suing in respect of that portion (the situation contemplated by O.2.R.2(2)), and (b) the case where an omission is inadvertent and the plaintiff seeks to amend the plaint in the same suit prior to a decree.
The court reviewed the trial Judge's rationale that the interest claim became due before presentation to the Mehsana Court and therefore should have been included at that time; the trial Judge treated the omission as one that gave rise to rights in favour of the defendants under O.2.R.2. The revising court found that reasoning to be erroneous because it misapplied O.2.R.2(2).
In support of its conclusion the court relied on precedents. From Upendra Narain v. Janaki Nath the court took the clear proposition that O.2.R.2(2) relates to cases where there has been a suit carried to a decision and a subsequent suit is then barred; it does not touch cases where an amendment in the same pending suit is sought to correct an inadvertent omission. The court also considered Krishnaji Ramchandra v. Raghunath Shankar, which discusses the temporal operation of O.2.R.2 (the institution of the suit being the relevant point of time), but observed that the present matter did not require resolving the point of time because no subsequent suit had been filed. The Privy Council observations in Jagat Singh were noted to the effect that leave to amend can be given while a suit is pending.
Applying these principles to the facts, the court accepted the petitioner's submission that the interest claim had been omitted inadvertently when the plaint was presented to the Mehsana Court and that no separate suit had been instituted for that omitted portion. Consequently, the statutory bar in O.2.R.2(2) did not operate to prevent amendment in the same suit. The trial Judge's conclusion that a valuable right had accrued to the defendants such that an amendment should be refused was held to be an error of law.
The court therefore set aside the trial court's order disallowing the amendment, allowed the amendment to include the interest claim, and directed procedural steps to follow (costs awarded to the petitioner; the trial court to give reasonable time to the opponents to file a written statement to the amended plaint; opponents may contend that a portion of the included claim is time-barred).
Holding and Implications
Holding: The revision petition is allowed; the trial court's order disallowing the second amendment is set aside and the amendment to include the claim for interest is permitted.
Implications:
- The direct effect is that the petitioner is permitted to amend the plaint in Special Civil Suit No. 50 of 1972 to include the interest claim (Rs. 3,790 as calculated in the application) and to make consequential changes to the prayer clause.
- The opponents are ordered to pay the costs of the petitioner in the revision petition.
- The trial court is to allow the opponents reasonable time to file a written statement in relation to the amended plaint; the opponents are permitted to argue that a portion of the included claim may be time-barred.
- The court's ruling is grounded in the interpretation that Order 2, Rule 2(2) bars subsequent suits in respect of an omitted portion after a final decision, but does not prevent amendment in the same pending suit where the omission was inadvertent. The opinion does not state that it establishes a new legal principle beyond applying established authorities to these facts.
1. This revision petition is filed by the original plaintiff against the opponents-defendants under Section 115 of the Civil Procedure Code against the order passed by the learned Joint Civil Judge. Senior Division. dated 5-2-1974. in Special Civil Suit No. 50 of 1972 below application. Ex. 13.
2. The facts leading rise to this revision petition. briefly stated. are as under:
3. Petitioner filed Summary Civil Suit No. 1877 of 1969. in the City Civil Court. Ahmedabad. on 28-8-1969. to recover a sum of Rs. 10.500/- from the opponents. Preliminary issue regarding jurisdiction was raised and it was held that the City Civil Court. Ahmedabad had no jurisdiction to entertain and hear the suit. The plaint was. therefore. ordered to be returned to the plaintiff (petitioner) for its presentation to the proper Court on 25-9-1972. Against that order. the petitioner had filed Civil Revision Application on 23-10-1972 in this Court. and that was rejected by this Court on 25-1011972. The petitioner took the plaint from the City Civil Court on 25-10-1972 and presented it to the Court of the Civil Judge. Senior Division. Mehsana. on 26-10-1972 and it came to be numbered as Special Civil Suit No. 50 of 1972. In that Suit. petitioner filed application. Ex. 13. for permitting him to amend the plaint. One amendment sought for. was to incorporate the facts necessary for condoning the delay made in filing the matter before the Mehsana Court on the ground that he was bona fide prosecuting the suit on the same cause of action in the City Civil Court. Ahmedabad. but the said Court has returned the plaint to him for presenting it to the proper Court on the ground that that it had no jurisdiction to hear the suit. That amendment is allowed by the trial Court. We are. therefore. not concerned with that amendment.
4. The second amendment sought for. was for adding a claim for the interest amount that is alleged to have fallen due till the date of presentation of the suit before the Court. That amendment has been disallowed by the trial Court on the ground that it was necessary to in, elude this claim of interest which had become due till the date of the presentation of the plaint before the Court while presenting the plaint before the Court. But as the petitioner had not done so. it assumes the position of the relinquished claim in view of the provisions of Order 2. Rule 2 of the Civil P. C. (which will be hereinafter referred to as "the Code") and in view of sub-rule (2) of Rule 2 of Order 2 of the Code. plaintiff shall not afterwards sue in respect of the portion so omitted or relinquished. According to the learned trial Judge. it was the legal right that accrued in favour of the defendants and any such amendment taking away that right is not allowed. It is on this reasoning that he has disallowed this proper made by the petitioner.
5. The petitioner. by this amendment. sought for including his claim of interest of Rs. 3.790/- due for the period from 28-8-1969 to 25-10-1973. Interest was calculated on the principal amount of Rs. 10.000/- at the rate of 12 percent. per annum. He also praved for consequential changes in the praver clause on that basis.
6. Mr. B. R. Shelat. appearing for Mr. C. N. Desai for the petitioner. has contended that the reasoning of the learned trial Judge is not sound. The learned trial Judge. submitted Mr. Shelat. has not borne in mind the relevant provisions of Order 2. Rule 2 of the Code. and has misunderstood its real content.
7. Order 2. Rule 2 of the Code reads.
"(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of. or intentionally relinquishes. any portion of his claim. he shall not afterwards sue in respect of the portion so omitted or relinquished."
Mr. Shelat has submitted that it was true that at the time of representation of the plaint in the trial Court. this interest amount had become due. At the time of representation of the plaint. this claim could have been included and it had remained to be included. It was. therefore. evident that it was omitted to be included in the plaint that came to be presented in the Mehsana Court. But the important part of sub-rule (2) of Rule 2 of Order 2 of the Code in terms states that the plaintiff shall not afterwards sue in respect of the portion so omitted or relinquished. The petitioner has not filed any other suit in respect of the portion so omitted or relinquished. In this very suit. plaintiff wants to amend his plaint and include the claim. which. through mistake. came to be omitted. There could not. therefore. be any bar of O. 2. R. 2 of the Code. The learned trial Judge. submitted Mr. Shelat. has overlooked this latter part of sub-rule (2) of Rule 2 of Order 2 of the Code which creates a bar to sue in respect of the portion so omitted or relinquished subsequently. As there is no such suit filed. when the claim is made for such a portion of the claim omitted or relinquished and in this very suit only praver is made to include that claim. there cannot be any bar of the Provisions of Order 2. Rule 2 of of the Code. The language of this sub rule (2) of Rule 2 of Order 2 of the Code itself clearly indicates the soundness of the argument advanced by Mr. Shelat.
8. In Upendra Narain v. Janaki Nath. ILR 45 Cal 305 = (AIR 1919 Cal 904) a Division Bench of Calcutta High Court had an occasion to consider this question. (At pp. 315 and 316 of I. L. R. Cal.) = (at pp. 906-907 of A. I. R. Cal.). Woodroffe. J.. has observed:
".......... As regards the other point it has more ingenuity than substance. It proceeds on the erroneous assumption that the amendment was prohibited by O. 2. R. 2. This rule does not touch the matter before us. It refers to a case where there has been a suit in which there has been an omission to sue in respect of portion of a claim. and a decree has been made in that suit. In that case a second suit in respect of the portion so omitted is barred. That is not the case here. In the present case the quit has not been heard but a claim has been omitted by. it is said. inadvertence. To hold that in such case an amendment should not be allowed would be to hold something which. the rule does not say and which would be absurd. The rule says 'he shall not after wards sue.' that is. it assumes that there has been a suit carried to a decision. and a subsequent suit. It does not apply to amendment where there has been only one suit. As the plaintiff had in law a right to apply for an amendment for the conclusion of his suit. it cannot be said that any rights of the appellant in the Pabna suit are affected. Such a contention is based on the erroneous assumption that nothing could be done by way of amendment of the Calcutta suit to remove the objection that the claims on the previous mortgage or charge were not sustainable. A case would fall within O. 2. R. 2. only if a plaintiff fails to apply for amendment before decree. and then brings another suit. The plaintiffs are not doing that but asking for amendment in the one and only suit they have brought. This is. therefore. not a case in which the amendment either affects rights accrued to the other party. or otherwise prejudices him."
9. In Krishnaji Ramchandra v. Raghunath Shankar. AIR 1954 Born 125. at DD. 127 and 128. Dixit. J.. has observed.
"Now. Mr. Madbhavi argues that what we have to look to for the purpose of determining the bar of Order 2. Rule 2. is the point of time when the suit is instituted. In this connection the language of Order 2. Rule 2 (2). may be contrasted with the language of Order 2. Rule 2 (3). Order 2. Rule 2 (2) speaks of an omission to sue or intentional1y relinquishing a portion of the claim. while Order 2. Rule 2 (3). speaks of a person being entitled to more then one relief in respect of the cause of action and while considering Order 2. Rule 2 (3). one has to consider the question of the leave of the Court. No question of the leave of the Court arises under Order 2. Rule 2 (2). In a case where the leave of the Court is to be sought. it may be possible to argue that the point of time is not the point of time of the institution of the suit. but the point of time is the point of time of the passing of the decree. But here again it is unnecessary to express any final pinion upon the question because that question does not strictly arise. confining therefore. my observations to Order 2. Rule 2 (2). the question for consideration is. whether as Mr. Madbhavi contends. the point of time is not the date of the filing of the suit but the date of the passing of the decree. But if one closely looks at the language of Order 2. Rule 2 (2) it is clear that the point of time under O. 2. R. 2 M. is the point of time of the institution of the suit. This is clear from the language of the rule itself. because same meaning has to be given to the expression "afterwards" occurring in O. 2 R.2 (2). and the expression "afterwards" can be construed on1y with reference to what precedes it. viz.. "emits to sue". When. therefore. the two expressions "omits to sue" and "afterwards" are considered together. it must follow. I think. that the point of time is not the date of the coasting of the decree but the date of the institution of the suit. If that is so. then it is clear that when the plaintiff filed Suit No. 633 of 1942. he did not include in that suit the whole of his claim in respect of the cause of action and. therefore the plaintiff must be taken to have invited the operation of Order 2. Rule 2 (2). because the plaintiff must be taken to have either omitted to sue or intentionally relinquished a portion of his claim. Whether it is the result of an omission or the result of a relinquishment. it makes no difference-not any difference even when the plaintiff subsequently files a suit and that is the bar imposed by Order 2. Rule 2 (2). It was suggested that in this case the persons in possession were different to bring separate suits. But that. I think. cannot clearly be the case in view of the judgment of their Lordships of the privv Council in - "Mahomed Khalil Khan v. Mahbub Ali Man'. AIR 1949 PC 78".
It is significant to note that in the instant case we are not concerned with any such question of point of time. whether the point of time would be the institution of the suit or the passing of a decree. as the plaintiff has not filed any other suit. We are concerned with the very suit in which such claim, came to be omitted and the petitioner in that very suit now wants to include by the amendment of the plaint.
10. In Jagat Singh v. Sangat at Singh. AIR 190 PC 70. the Privv Council has. at page 73. made the follow instructive observations:
"The High Court would seem to have assumed that S. 19 (of the Civil P. C . 1882) was not merely permissive: also that the claim to recover possession of the Lvallpur lands and the claim to a declaration as regards the other lands were claims in respect of the same cause of action: cf. ( 1914) 41 Ind App 142 (PC). Their Lordships think that both assumptions are highly debatable. But. in any case, the claim of the present appellants as reversioners of Ishar Singh would not have been barred so far as regards the question whether Ishar Singh's will gave to his widow an absolute interest or an interest for her life. Moreover. So long as the suit of 1906 was indisposed of. it was always possible that the Court if it thought that there was anything in the point as to Order 2. Rule 2. would give leave to the plaintiff to amend by including a claim to recover possession of the ornaments and Lvallpur lands."
It is thus evident that such an amendment can be allowed and there cannot be any bar of the provisions of Order 2. Rule 2 (2) of the Code. The learned trial Judge has. in my opinion. clearly committed an error in holding that there would be such a bar and consequent1y a valuable right has accrued in favour of the opponents defendants and so such an amendment application should not be allowed.
11. Revision petition is allowed. The order passed by the trial Court. that this second amendment cannot be allowed. is set aside and that amendment is also allowed and the petitioner is permitted to include the said claim of interest in his amended plaint. Opponents to pay the costs of the petitioner in this revision petition. Rule is made absolute.
12. The learned trial Judge will give reasonable time to the opponents after the amendment is carried out by the plaintiff-petitioner. to file a written statement to the amended plaint. It is needless to say that it will be open to the opponents to contend. a portion of this claim included is time barred.
13. Petition allowed.
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