9911796707
TMI Blog1995 (11) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... in the interregnum had the insurance renewed on April 19, 1984 operative upto April 18, 1985. On July 9, 1984, the appellant demanded payment of insured amount due to loss of the truck which liability was disclaimed by the respondents through their letter dated December 31, 1984. After exchange of legal notice and reiteration of denial thereof, case No. 34 of 1986 was instituted in the Court of the Chief Judicial Magistrate, Solan, District Solan, Himachal Pradesh, seeking a declaration that the appellant is entitled to the total loss of the truck from the Insurance Company. The Trial Court by its judgment and decree dated July 23, 1988 dismissed the suit holding that the suit for mere declaration without consequential relief for payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perly framed the suit and whether the claim is barred by limitation. It is true, as rightly pointed out by Sri Rakesh Khanna, that Section 28 of the Contract Act prohibits prescription of shorter limitation than the one prescribed in the Limitation Act. An agreement which provides that a suit should be brought for the breach of any terms of the agreement within a time shorter than the period of limitation prescribed law is void to that extent. The reason being that such an agreement is absolutely to restrict the parties from enforcing their rights after the expiration of the stipulated period, although it may be within the period of general limitation. But acceptance of that contention does not per force solve the controversy in this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a power for the court to condone the delay, as provided under Sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as the defence. Order 6 Rule 17 C.P.C. envisages amendment of the pleadings. The court may at any stage of the proceedings allow either parties to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. Therefore, granting of amendment on such terms is also a condition for the purpose of determining the real question in controversy between the parties. The amendment to gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not really stand in the way of the tenant to grant relief. As stated earlier, the suit was not initially instituted as one for recovery of damages nor was it founded on the relief which might have been asked for but was not claimed. In Pusupuleti Venkateswarlu v. The Motor General Traders [(1975) 3 SCR 958) this Court dealing with the basis of cause of action and character of the right had held that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the is has come to Court and has a fundamental impact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressly gives power to the Court to grant amendment of the pleadings at any stage of the proceeding, permitted amendment of the plaint seeking alternate relief. The ratio therein is clearly distinguishable and does not apply to the facts of this case. On a consideration of this case in its proper perspective, we of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court. Consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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