9911796707
TMI Blog2006 (9) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the factual matrix and the questions of law involved in all the appeals are common, these are being disposed of by this judgment. However, we shall refer to the facts of Civil Appeal No.6115/1999 as illustrative. 2. Sometime in the year 1988, the Superintending Engineer, Srisailam Right Branch Canal (for short SRBC ), defendant No.2 in the Suit, issued notice inviting tenders from pre-qualified bidders of eligible source countries, which included India, for the work of excavation, lining and construction of structures of SRBC. It was a time bound project supported by credit loans from the International Development Association and International Bank for Reconstruction and Development. 3. The tender of the contractor being the lowest, he was awarded the work valued at ₹ 8,42,93,617/-. A formal agreement was executed. Time for completion of the work was thirty six months from the date of handing over of the site. Clause 57 of General Conditions of Contract laid down the procedure for resolution of disputes. It reads thus: 57. RESOLUTION OF DISPUTES: 1) Settlement of claims for ₹ 50,000/- and below by Arbitration. All disputes or differences in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendants mainly on merits though it was averred that the plaintiff suit is not maintainable either in law or on facts . No separate reply to the application appears to have been filed. However, the application was dismissed by the subordinate Judge. Aggrieved, the contractor preferred appeal to the High Court, which was dismissed vide order dated 13.11.1992. While dismissing the appeal, the High Court observed that having regard to the language of the arbitration agreement between the parties and the fact that there was no claim for any specified amount in the petition, the suit as filed by the contractor was not maintainable. The Court, however, clarified that it would be open to the contractor to amend the plaint in accordance with law, if so advised. 6. In the light of the said order, on 17.1.1993, the contractor filed three applications in the pending suit: (i) I.A. No.1/1993 \026 under Order VI Rule 17 C.P.C. for amendment of the plaint; (ii) I.A. No. 2/1993 - for production of documents by the defendants; (iii) I.A. No.3/1993 - for dispensing with notice under Section 80 of C.P.C. All the applications were opposed by the defendants on merits of the claims made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act could not be converted into civil suits by way of amendment applications under Order VI Rule 17 C.P.C. In support reliance is placed on the decisions of this Court in P.A. Ahammed Ibrahim Vs. Food Corporation of India and Bharat Coking Coal Ltd. Vs. Raj Kishore Singh and Another , wherein it has been held that converting an application under Section 20 of the Arbitration Act into a suit for recovery by permitting it to be amended under Order VI Rule 17 C.P.C. would amount to introducing a totally new cause of action and change the nature of the action. It is, thus, pleaded that the High Court has failed to take into consideration the settled principles of law on both the issues. 11. Per contra, Mr. Reddy has contended that though the suit filed initially was styled as a petition under Sections 8 and 20 of the Arbitration Act on account of vague language of the arbitration agreement but in fact it was a civil suit. Learned counsel has also submitted that having failed to take any objection with regard to the maintainability of the suit for want of notice under Section 80 C.P.C. and further having failed to challenge the orders passed by the Trial Court, allowing the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any public officer in respect of any purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice \026 (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not agree with the Law Commission and recommended retention of Section 80 with necessary modifications/relaxations. 15. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment Act, 1976) the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1.2.1977. Subsection (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the Court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the Court cannot grant relief under the subsection unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. Proviso to the said sub-section enjoins that in case the Court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance in the submission of Mr. Choudhary, learned senior counsel appearing for the State, that the order allowing the application, seeking dispensation of the requirement of notice, is cryptic but the fact remains that by allowing the application, after hearing the defendant State, the Judge has opined that the suit is for the purpose of obtaining an urgent and immediate order. Had the satisfaction been against the contractor, the Court was bound to return the plaint to the contractor for re-presentation after curing the defect in terms of subsection (1) of Section 80. Although we do not approve of the manner in which the afore-extracted order has been made and the leave has been granted by the subordinate Judge but bearing in mind the fact that in its reply to the application, the State had not raised any specific objection about the maintainability of the application on the ground that no urgent and immediate relief had either been prayed for or could be granted, as has now been canvassed before us, we are of the opinion that having regard to the peculiar facts and the conduct of both the parties it is not a fit case where the matter should be remanded back to the subordinate Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pillai Vs. Parmeswaran Pillai Anr. Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya Vs. Maung Mo Hnaung , succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: 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, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. 21. Having briefly noted the principles governing amendment of pleadings, we may advert to the facts of the present case. 22. Incidentally, the order passed by the subordinate Judge allowing the amendment application has not been filed but learned counsel appearing for both the parties have stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
