2006 (9) TMI 534 - SC - Indian Laws

Whether or not the suit filed by the contractor was maintainable because of the alleged non-compliance with the provisions of Section 80 C.P.C.? Whether or not leave to amend the petition/plaint was granted by the subordinate Judge in accordance with the principles regulating amendments of pleadings?

Summary

Issues Involved:
1. Maintainability of the amendment application filed under Order VI Rule 17 C.P.C.
2. Maintainability of the suit for want of notice under Section 80 C.P.C.

Detailed Analysis:

1. Maintainability of the Amendment Application Filed Under Order VI Rule 17 C.P.C.:

The contractor initially filed a petition under Sections 8 and 20 of the Indian Arbitration Act, 1940, which was later sought to be amended into a civil suit by filing an application under Order VI Rule 17 C.P.C. The State argued that this amendment changed the nature and character of the suit, which should not be allowed. The High Court did not address this aspect but proceeded to decide the claims on merits. The Supreme Court noted that the principles governing amendment of pleadings are well-settled and that amendments should be allowed liberally to avoid multiplicity of proceedings unless it causes serious injustice or irreparable loss to the other side. However, one distinct cause of action cannot be substituted for another, nor can the subject-matter of the suit be changed by means of an amendment. The Supreme Court remanded the matter back to the High Court for consideration of the issue with regard to the maintainability and merits of the application filed under Order VI Rule 17 C.P.C.

2. Maintainability of the Suit for Want of Notice Under Section 80 C.P.C.:

Section 80 C.P.C. mandates that no suit can be filed against the Government or a public officer unless a two-month notice has been served, except in cases where urgent and immediate relief is sought, in which case the court can dispense with the notice requirement under sub-section (2). The subordinate Judge allowed the contractor's application seeking dispensation of the notice requirement, stating that there was no tenable ground to refuse the relief asked for. The State argued that the order was cryptic and that the provisions of sub-section (2) were not attracted on the pleaded facts. The Supreme Court noted that the legislative intent of Section 80 is to give the Government sufficient notice to reconsider its decision and avoid unnecessary litigation. However, in this case, the subordinate Judge had allowed the application after hearing the State, indicating that the suit was for obtaining an urgent and immediate order. The Supreme Court found it difficult to hold that the order was beyond the subordinate Judge's jurisdiction and declined to interfere with the High Court's finding that the State had waived the objection by participating in the proceedings without raising the issue of maintainability at the earliest point of time.

Conclusion:

The Supreme Court allowed the appeals filed by the State to the extent indicated and remanded the matter back to the High Court for consideration of the issue with regard to the maintainability and merits of the application filed under Order VI Rule 17 C.P.C. The Supreme Court did not express any opinion on the merits of the decree passed by the subordinate Judge and upheld by the High Court, leaving the issue open for appropriate proceedings, including revival of the present appeals, after the High Court's decision on the afore-noted issue. The parties were left to bear their respective costs.