1. I have no hesitation in dismissing, this application for amendment of the written statement.
2. In this application the defendant asks for amendment of its written statement after about five years. The suit was filed in 1946 and so was the written statement. I am satisfied that this application is not bona fide and the unusual delay is not explained by the affidavits. An attempt to explain the long period of five years is made in paras. 3 and 4 of the petition of the defendant company. The substance of that explanation is that some of the officers of the defendant company were alleged to have committed certain offences under the Defence of India Act and the Iron and Steel Control Order and in connection with the investigation of the case all books, papers and documents including the files relating to the disputes in the suit were taken over by the police. But even then these cases ended in the acquittal of the officers in July 1950. For the period from July 1950 until 11-7-1951 just about a year, no explanation is offered.
3. In para. 4 of the petition it is alleged that while the cases were pending the papers remained in the custody of the police. But surely the causes cannot be said to be pending when the defendant company's officers were acquitted and as stated in para. 3 of the petition the officers were acquitted in July 1950. In para. 4 of the petition it is alleged that the papers were made available to the defendant in the early part of 1951. No fact is stated in the petition or affidavit-in-reply to explain why all this time from July 1950 to early part of 1951 was taken for the defendant company to get the papers and nothing is shown what attempts or steps in that time were taken and on what dates for the recovery of such papers. What that early part of 1951 means is not stated but in any event this present application was not made until 11-7-1951, which is a very significant date.
4. This suit was once decreed on 29-3-1950 against the defendant. The decree was set aside on 15-5-1950 and the suit was restored. On 5-6-1951 the plaintiff's counsel mentioned the matter before my learned brother Sarkar J. for an early date of hearing and one month's time was given for the suit to appear in the peremptory list on 9-7-1951. Nothing was done even during this period of one month when the suit was under special order directed to be put on the list on 9-7-1951. The suit ultimately appeared on 10-7-1951 in the daily list. It was then, after the suit had appeared on the daily list for disposal that the defendant company thought of taking out the present summons. This summons was taken out on the very following day after the suit had appeared in the list on 10-7-1951. These dates do not support the defendant's rather laboured explanations for the delay offered in paras. 3 and 4 of the petition on the basis of cases with the Government and the acquittal of the officers of the defendant company in July 1950 and papers being made available in the early part of 1951. I am unable to believe that these assertions made in paras. 3 and 4 of the petition are at all bona fide. To me it appears that the only purpose of this application is to harass the plaintiff and delay the final hearing of this five year old commercial suit.
5. On the merits of the amendments proposed the case of the defendant company should in my opinion also fail. The proposed amendments are shown in red ink in the schedule to the petition.
6. The proposed amendments require to be analysed in order to show their nature and character.
7. They plead in great details certain contracts which the defendant company had with the Governor-General-in-Council for supplying diverse quantity of Block Tackle and Pulley Blocks. The terms are set out in detail. Paragraphs 1, 2 and 3 are all new amendments which do not find a place in the original written statement. The next amendment that has been proposed is in para. 6 where the defendant company states that the plaintiff failed and neglected to fabricate and/or manufacture the said goods as a result whereof the defendants contract with the Governor-General-in-Council was abruptly terminated inflicting huge loss to the defendant. There was not a word of pleading to this effect in the original written statement. The proposed amendment claims to reserve the right to proceed against the plaintiff for the recovery of such loss after final adjustment of account with the Union of India which adjustment is still said to be pending. Thereafter in the new para. 7 one of the vital admissions made in the original written statement is completely deleted. That part of the original written statement which pleads that the defendant has already paid a portion of the price of the goods retained by the defendant, and that at all material times the defendant was and still is ready and willing to pay the price of the balance of the goods so retained and to return to the plaintiff the rejected goods is now proposed to be deleted by the amendment sought. The whole of that pleading is now struck off and in its place something new is substituted to the effect that the plaintiff failed and neglected to fabricate and supply the goods in time and therefore committed breach of the agreement. Here again it is pleaded that on proper accounts being taken a large sum of money would be due to the defendant for which the defendant reserves the right to file a separate suit. Such right of suit even if such claim could be made is of course now barred by limitation.
8. The plaint in this suit has claimed the balance of price on the basis of goods sold and delivered by the plaintiff to the defendant. In that context either the proposed amendment in the written statement is relevant or it is not. If it is irrelevant then the amendment is unnecessary and cannot be allowed because that is not necessary to determine “the real controversy” between the parties under O. 6, R. 17 of the CPC. If it is relevant, it has only attempted to introduce entirely a new term in the contract by suggesting that its contract with the Government and the specification mentioned therein was the controlling factor in the contract between the plaintiff and the defendant. That is taking and pleading an entirely new defence. Even then I would have been prepared for reasons, I will presently state, to allow that amendment. But to suggest that such a defence could not have been taken by the defendant because of cases pending with the Government and because of the papers which are said to have been taken charge of by the police is an attempt to overreach the Court. I therefore disallow such amendment.
9. The second amendment proposing to delete the admission that the defendant had been willing to pay the price of the balance of the goods returned and to return the rejected goods to the plaintiff is again a signal departure from the original defence. I cannot imagine how such withdrawal of defence can be said to depend on the papers taken charge of by the police. That again goes to show in my opinion that the application is not bona fide and the explanation for the delay is a mere excuse.
10. Some authorities on amendment of plaint have been placed before me. The general principles are sufficiently clear and repetition of well-known authorities is not called for.
11. It is necessary, however, to observe that amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principles. Some important general principles are certainly common to both, such as the application for amendment whether of a plaint or a written statement must be bona fide and must also be for the purpose of determining “the real controversy” between the parties and where it is just under O. 6, R. 17 of the CPC. But the rule that the plaintiff cannot be allowed to amend his plaint so as to after materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the defence or the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Hence the Courts are inclined to be more liberal in allowing amendment of defence than of plaint and questions of prejudice are less likely to operate with same rigour in the former than in the latter case.
12. But nevertheless no amendment of a defence or written statement should be allowed which is no answer to the plaint and the cause of action pleaded therein. An immaterial and useless, amendment should not be permitted by the Court. Nor does the Court allow amendment by introduction in the written statement of a state and untenable set off as attempted in this application. These conclusions follow naturally from the “real controversy” rule in O. 6, R. 17 of the Code and no authority is needed in support thereof. But if any authorities are needed, they are collected at p. 481 of the Annual Practice (1944 Edn.) under the heading “Immaterial and useless amendments” to which reference may be made.
13. The governing consideration in an application to amend the written statement should be how far, if at all the proposed amendment of the defence is necessary to determine the “real controversy” between the parties. If that test is not satisfied, then the amendment should not be allowed, even on the ground that there can be no real prejudice by the amendment and that the costs awarded against the amending party will act as the panacea for any possible inconvenience occasioned by the amendment. There is always legal prejudice when irrelevant matters are allowed to be introduced by amendment.
14. Bowen L.J's famous dictum in Cropper v. Smith, (1884) 26 Ch. D. 700 at p. 711 “there is one panacea which heals every sore in litigation and that is costs” has all the lure of a dogma and therefore carries the usual defect of an ever-emphasised statement. It has been not a little responsible for the prevailing casual treatment by Courts of applications for amendment under the false comfort of costs being the universal remedy. The primary duty of a Court in deciding an application for amendment is not discharged by laying unction to its conscience with the thought that the order will not prejudice any party. The Court has the more positive duty to decide whether the proposed amendment is necessary to determine the real controversy between the parties.
15. Nor is the primary consideration in such an application, to award costs against the amending party. The Courts do not exist for so commercial a purpose as to be mere institutions for dispensing costs without deciding the merits. They exist primarily for the justice of determining the genuine and real disputes between the parties and incidentally for awarding costs. The “real controversy” test is the basic test which governs the Courts' unchartered powers of amendment of pleadings. No amendment in my judgment should be allowed when the amendment does not satisfy this cardinal test.
16. I am, therefore, unable to accede to the final argument of the learned counsel for the applicant, that whatever the merits may be of the proposed amendments, I should allow the amendment irrespective of their relevance on the real controversy between the parties herein and satisfy myself by awarding costs against his client the applicant.
17. I am not satisfied at all either on the merits or the bona fides of this application. For the reasons I have stated I dismiss this application with costs. I certify this Chamber Summons to be a fit one for the employment of counsel.
B/R.G.D
18. Application dismissed.