Sudhamay Basu, J. - (1.) This is a petition it appears for lie fourth time, for leave to amend the written statement filed in this suit. The suit itself was instituted as far back as 14th of June, 1962. The original written statement was filed on the 27th of August, 1962. More than tight weeks thereafter when the suit appeared in the list for hearing the defendant sought to amend the written statement. Two applications for such amendment -- one dated 22nd January, 1973, and the other dated 23rd February, 1973, were withdrawn with leave of the Court to file fresh applications. On the 22nd March, 1973 the third application was filed for amendment to incorporate as paragraphs 10 (a) & 10 (b) of the written statement the following :-- "10 (a). The said transactions relating to the said 8 letters of credit are unlawful and smenforceable in that the transactions as aforesaid were contrary to and in violation of, inter alia, Sections 3, 4, 5, 6, 21 and 22 of the Foreign Exchange Regulation Act. 1947 of India. 10 (b). The said transactions were contrary to the laws relating to Foreign Exchange Regulation of Pakistan, namely, I. R. P. X. 4." The said application for amendment was partially granted by S. K. Mukherjea, J. The amendment in the manner mentioned in paragraph 10 (a) was allowed but that mentioned in paragraph 10 (b) was disallowed. It is stated in the present petition for amendment that the necessary details about the Foreign Exchange Regulation Act of Pakistan could not be availed of. The present application again seeks to incorporate different provisions and details of the Foreign Exchange Regulation Act, 1947 of Pakistan after an averment which is similar to what was rejected in paragraph 10 (b) mentioned above. It is stated in the petition that the amendment is necessary for the purpose of determining the real question in controversy between the parties.
(2.) In an affidavit-in-opposition affirmed by one Narendjra Nath Kundu on the 20th of July, 1973, it is submitted that the present application is a mala fide one calculated to delay the hearing of the suit and that it is barred by the principles of res judicata. It is further stated that the application for the previous amendment of the written statement wss made with more or less the same kind of averment. It is further disputed that the amendment was refused earlier solely due to insufficient details being furnished about the Pakisran Foreign Exchange Regulation law. Tt is further submitted that the attempt to incorporate almost the entire Foreign Exchange Regulation Act of 1947 of Pakistan is in violation of all principles and standards of drafting.
(3.) Mr. A. K. Das, learned Counsel appearing in support of the petition submitted that the Foreign Law was to be pleaded u a fact. Therefore he has sought to incorporate the different provisions of the Pakistan Foreign Exchange Regulation Act of 1947. Referring to Order 8, Rule 2 and Order 6, Rule 2 of the Code of Civil Procedure, he submitted that although material facts were to be stated in the pleadings and law was not to be pleaded. Foreign Law, however, was an exception to the latter. Mr. Das submitted that he was required to mention the sections of the Foreign Law specifically. In support of his proposition he referred to the Annual Practice, 1966, in which undei the note under Order 18, Rule 8 of the Supreme Court Rules at page 375 on Foreign Law it is stated that "Where Foreign Law is pleaded in support of, or as defence to an action, cetain particulars should be given. Orders have been made for particulars of any Code or Statute, if any relied on, but identifying the material clauses thereof." Mr. Das next referred to Bullen and Leake Precedents of Pleadings, 10th Edition at page 9 where it is stated that any of these matters (such as laws of the foreign country) relied upon must be alleged like other facts. Mr. Das also cited in this connection The Duke of Brunswick v. King of Hanover, reported in (1844) 6 Beavan's Report p. 1 at p. 59 where it is alleged that the allegation that an instrument depending upon Foreign Law is null and void was too vague.;