1. This is an application in revision by the plaintiff against an order refusing amendment of the plaint on the ground that the proposed amendment, if allowed, would basically change the nature of the case.
2. The short facts are that on 30-3-1967, the petitioner despatched from Tatanagar 200 metres of cable in two cable drums to the Chief Engineer, Madras Port Trust, Madras. According to the original case in the plaint, on 7-1-1967, delivery of only one drum was given by the Railways to the consignee in highly damaged condition. the entire lot of cables being completely unfit for any use. The case regarding another drum was that it was not delivered at all. The case of the defendant railway in the written statement was that the first drum was delivered in sound condition and the cables had been fully utilised by the consignee and the second drum was also offered for delivery but delivery was refused. On 31st May, 1973, the amendment petition in question was filed by the plaintiff. By this amendment the plaintiff wants to make out a case that the first drum was simply offered to the defendant (sic) and it refused to take the delivery as it was in a state of highly damaged and injured condition, and that the other drum was not at all offered. In other words, in place of the original statement in the plaint “That ultimately on 7-11-1967 delivery of only one drum was given by the Railways to the consignee in a highly damaged condition. ……… The other drum was not delivered at all”, the plaintiff now wants to change by this amendment the word “given” by the word “offered” and the words “not delivered at all” by the words “not even offered for delivery” and mutatis mutandis amendment in other paragraphs of the plaint. As already said above, the petition for amendment has been rejected by the learned Subordinate Judge on the ground that it will make altogether a new case and that it was also at a belated stage in the case.
3. So far as the stage of the case is concerned, hearing has not yet commenced. So the prayer for amendment of the plaint cannot be rejected on the ground that it has been made at a belated stage.
4. I shall now take up the main ground of rejection of the prayer for amendment of the plaint, namely, as to whether by this amendment a new case was made out, and if that be so, whether on the facts of this case, it should be refused.
5. Under Section 73 of the Indian Railways Act, which deals with the general responsibility of the Railway Administration as a carrier of animals and goods, the Railway Administration has been made responsible for the loss, destruction, damage, deterioration or non-delivery in transit of the goods delivered for carriage, except in some exceptional circumstances mentioned thereunder, none of which has got any application in this case.
6. Section 78-B also enjoins upon a person entitled to refund of an overcharge or to compensation for the loss, destruction, damage, deterioration or non-delivery of the animals or goods in question, to prefer in writing his claim for the refund or compensation to the prescribed authority within six months from the date of the delivery of the goods for carriage. According to the proviso to this section, any information demanded or inquiry made in writing within the said period of six months regarding the non-delivery or delayed delivery of the goods be deemed to be sufficient compliance of the notification of claim. According to the contention of the petitioner, the notice in question was given to the prescribed authority in this case much before the consignment had reached the destination for non-delivery of the consignment, but by inadvertence, as the suit has been filed by the consignor, and not by the consignee; an inaccurate statement was made due to an apparent mistake.
7. Having examined the plaint as originally filed and the proposed amendment, it is apparent that what the plaintiff has claimed is the sum of Rs. 27,417.17 on account of the price of 200 metres of cables consigned in the two drums in question. In other words, although the purported statement with respect to the one drum of course was that it was delivered, the value of the entire contents has still been claimed in the plaint. A question arises as to whether by altering the case with respect to one drum from that of “damage or deterioration” to one of “non-delivery” within the meaning of Section 73 of the Railways Act, however maintaining the total claim for compensation to be the same, the plaintiff can be said to be making a fundamental and basic change in the original case.
8. In the case of A.K Gupta and Sons Ltd. v. Damodar Valley Corporation, (AIR 1967 SC 96), the Supreme Court on a consideration of the various authorities, including some English cases, has laid down the principle in a nut-shell as follows:
“………. where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same fasts, the amendment will be allowed even after the expiry of the statutory period of limitation …………. the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes. ………….”
9. The very fact of the right of a party to pray for amendment of his pleadings which may be necessary for the purpose of determining the real questions in controversy between the parties under Rule 17 of Order VI of the of the CPC contemplates amendment of some material facts in the original pleading as no one would want to change or add an immaterial allegation by amendment. The only restriction that has been contemplated under the rule and indicated by the long line of cases is that it should not place the other party in a position which cannot be compensated by costs. In the above mentioned case before their Lordships of the Supreme Court, the original suit filed by the plaintiff was for a mere declaration that on a proper interpretation of the terms of the agreement of the contract in question, he was entitled to an enhancement of 20 per cent, over the tendered rates and only a declaratory court-fee was paid. On an issue being raised in the written statement regarding the maintainability of the suit, the High Court held that it was not maintainable in view of Section 42 of the Specific Relief Act. The plaintiff then made an application for amendment of the plaint by adding an extra relief for a money decree on payment of ad valorem court-fee. This prayer was refused by the Patna High Court in the First Appeal on the ground that the claim for money on the date of the application was barred by time. The Supreme Court allowed the amendment on taking a view that the amendment sought was necessary for a decision of the real dispute between the parties which was clearly involved in the plaint as originally framed and all the necessary basic facts had been stated.
10. Examining the facts of the case in hand, it is apparent that the plaintiff has made a claim for Rs. 27,417.17 on account of the loss suffered by him due to the misconduct and/or negligence of the Railway Administration in carrying the consignment in question. The defendant can very well prove their plea that the consignment in question was delivered to the plaintiff and they were not liable to any loss suffered by it on account of any act of negligence or misconduct on their part. In my opinion, therefore, the amendment does not alter the fundamental character of the suit and the foundation of the plaintiff's claim remains still intact. According to decision of the Judicial Committee in the case of Charan Das v. Amir Khan, (AIR 1921 PC 50), quoted with approval in the case of A.K Gupta and Sons Ltd., AIR 1967 SC 96 (Supra) by their Lordships of the Supreme Court it amounts to no more than a different or additional approach to the same facts. The other celebrated case of the Judicial Committee in the case of Ma Shwe Mya v. Maung Mo Hnaung, (AIR 1922 PC 249), which has again been followed by various High Courts, including the Supreme Court, has said that all rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose. The amendment, therefore must be allowed liberally except in cases where one distinct cause of action or the subject-matter of the suit was substituted by another. While examining the application for amendment, the Court has to look to the substantial nature of the question, and not to the formal manner in which it is inserted.
11. In the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, (AIR 1957 SC 363), the Supreme Court while considering the question of amendment said that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. As already said above, the plaintiff by the proposed amendment in this case does not purport to set up a fresh claim against the defendant. The basis of the claim being the same, namely, the loss suffered by it on account of misconduct or negligence of the defendant in carrying its consignment, the case with respect to one drum as originally made on the assumption that it had taken the delivery thereof to one of non-delivery does not make any material change in its case. In any view of the matter, it does not place the defendant to any such disadvantageous position or cause them any such injury which could not be compensated by costs as under the rules of procedure, the defendant has got to establish that they have performed their duties as a carrier, properly.
12. Mr. P.K Bose appearing for the Railways, however, vehemently opposed this amendment. His line of attack was that this amendment should not be permitted as no amendment should not be permitted which would alter the cause of action as mentioned in the plaint from that given in the notice under Section 80 of the CPC as it would offend the provision of Section 80. In support of this proposition Mr. Bose placed reliance upon A. Ramachandra Naidu v. Kandaswami Mudaliar, (AIR 1949 Mad 416), New Churulia Coal Co. Ltd. v. Union of India. (AIR 1959 Cal 585) and U.P Government through the Collector. Kanpur v. Lala Nanhoo Mal Gupta. (AIR 1960 All 420) and a few other decisions, including the case of McInerny v. Secretary of State for India. (1911) ILR 38 Cal 797.
13. I have examined the facts of the above authorities. The Madras and the Allahabad cases, however, do not appear to be the authorities on the proposition that amendment of a plaint is not permissible if it results in any material change of the case from that made out in the notice. But the two Calcutta cases have taken this view, namely, that if the provision of Section 80 stood in the way of a plaintiff, he could not be allowed to amend the plaint. That might be so, but as I have already stated above, in the instant case, by the proposed amendment, the plaintiff is not purporting to introduce a case in conflict with the case made out in the notice under Section 80, but rather to bring it in conformity with the case as made out in the notice. Pushing the matter further, it might well be possible to take a view that by this amendment even if the position in the notice under Section 80 would have been different, the amendment of the plaint would not be in conflict thereof, as it did not alter either the cause of action or bar the same on the question of limitation or otherwise.
14. It is, however, not necessary to go so far in this case. I would, accordingly overrule the objections of Mr. Bose to the grant of the prayer for amendment of the plaint.
15. For the reasons stated above, I would allow this application, set aside the order of the trial Court and direct it to amend the plaint in question in terms of the petition for amendment of the plaint dated 31-5-1973. This order, however, will be subject to the condition that the petitioner must compensate the defendant for their mistake by payment of Rs. 500/- as costs within a time to be fixed by the trial Court. The defendant will also be at liberty to file additional written statement, if any, after the amendment of the plaint is made. There will be no order as to costs.
16. Application allowed.