Decided on December 20,1968



- (1.) Amendments of pleadings should be allowed liberally since permission to amend is the rule and refusal the exception, the guiding principle being promotion of Justice. Even so, is there no limit to this liberality This question is highlighted in the present revision petition where the counsel for the petitioner - and, of course, for the respondent too - have pressed before me arguments of learned length, relying on rulings large in number and weighty in authority; at the end of all of which, I am persuaded neither to reverse the discretionary order rejecting the amendment nor to agree that the discretion has been erroneously exercised by the lower Court.
(2.) A suit was filed as early as 1962 by the State Trading Corporation of India (Plaintiff) against the South India Corporation (Agencies) Private Ltd., (2nd defendant) and another, a Shipping Company incorporated in Liberia - West Africa - for compensation for short landed reels of newsprint. The 2nd defendant entered appearance on 17-10-1962 but filed its written statement somewhere about August 1963. In keeping with this snail's pace issues were settled in July 1965 or thereabout. There were the usual dilatory vicissitudes of litigation, such as framing of further issues, trial of a preliminary issue, an occasional excursion to the High Court on interlocutory matters, decreeing of the suit ex parte, setting it aside and adjournments galore from one side or the other, or on account of the absence of the Judge; with result that the oral evidence was begun in the suit only in the first quarter of 1968. It does not very much serve the purpose of the case to investigate who was responsible for the delay of several years in the career of this litigation since the Court itself cannot be completely free from blame in such cases. The more relevant fact is that the application for amendment of the written statement has been made 5 years after the original written statement, when the suit has reached the last lap of its journey, even the evidence has been closed and arguments alone remain to be heard. Anyway, at a very late stage i.e. on 25-3-1968, following the examination of the plaintiff's only witness, the 2nd defendant applied to amend his written statement to insert the following: "The defendant does not admit Mr. B.M. Sundra's competency to sue on behalf of the plaintiff and puts the plaintiff to strict proof of his authority to sign and file the plaint." Of course, the 2nd defendant has contended in his written statement that the suit is not maintainable in law and on the facts, so far as he is concerned, his case being that he has acted with due diligence that there has been excess landing of news reel elsewhere and that, on the merits, the claim cannot be sustained against him. The present amendment has been moved, largely encouraged by a windfall in the cross examination of P.W. 1 who is said to have admitted on oath that he had no power to institute the suit and omitted to swear that he has a principle officer of the plaintiff - Company. O.29 R.1 of the Civil Procedure Code requires a pleading in suits by or against a Corporation to be signed and verified on behalf of the Corporation either by the Secretary or by any Director or other principal officer of the Corporation who is able to depose to the facts of the case. By making this amendment in the written statement the 2nd defendant wants to urge the contention that the suit has not been properly instituted in that the plaint has not been signed and verified in compliance with O.29 R.1 C.P.C. The learned Subordinate Judge dismissed the application for amendment on several grounds, although it must be frankly stated that he was obsessed by the delay in bringing the application for amendment. Of course, the lower court also observed: "...... The additional plea now sought to be raised by the defendant by the amendment of the written statement, I am constrained to observe, is not supported by bona fides. The Court did not stop with this either, for it went on to state, "By the amendment now sought for, no clarification is intended to express in respect of the issues raised in the suit and therefore it cannot be said that the purpose to be served - the purpose of determining the real question in controversy between the parties - will in any way be advanced by allowing the amendment now sought for by the defendant." The learned Subordinate Judge fortified his decision to reject the application on the ground of mala fides by the following argument: "Here in this case, apart from the fact that no question of law arises, it is also to be noted that when it is specifically alleged in the plaint that Sri B.M. Sundra has been residing at Ernakulam at the time when the suit has been instituted and has been the principal officer of the plaintiff company at Willingdon Island since 1958 for the relevant period and that he will be able to depose the facts of the case, which averments are not disputed in the written statement, there is no bona fides on the part of the defendant to urge this contention that Sri. B.M. Sundra is not competent to sue on behalf of the plaintiff, when it is deposed by him in the box as P.W.1. and averred by him in the plaint to the effect that he is the principal officer of the plaintiff company at the relevant period, particularly when nearly 7 years have lapsed since the filling of the plaint in the suit."
(3.) I agree with the petitioner's counsel that delay as such is not destructive of the right of a party to seek permission for amendment of his pleading. It is trite law that ordinarily "mere delay is not a ground for refusing an amendment. As a general rule, however late the amendment is sought to be made, it should be allowed" except in cases such as where the amendment is not sought in good faith or is not necessary for the purpose of determining the real question in controversy between the parties, or the objection sought to be raised thereby is purely technical or useless and of no substance or where the amendment would introduce a totally different, new and inconsistent case, or would otherwise inflict serious prejudice to the opposite party which cannot be compensated for by costs (I am not attempting to be exhaustive). Even where a fresh suit on the amended cause of action would be barred by limitation, an application for introducing that amendment would not be necessarily disallowed although it may be a factor to be taken into account in exercise of the discretion as to whether the amendment should be ordered or not. I do not propose to rest my decision on mere delay. Nor am I impressed with any possible prejudice to the plaintiff on account of the allowance of this amendment; for, after ail, if Mr. Sundra had really been the principal officer of the plaintiff Corporation in Willingdon Island, there must be some document to prove it and indeed such evidence could easily have been placed before the Court long ago, when this matter was mooted. The plaintiff, instead of resisting the amendment application, could easily have taken the wind out of the sails of the defendant's plea by producing the necessary documentary material; but inscrutable is the reason for the plaintiff not adopting this simple course, That is by the say.;

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