Promila Kumari & Ors. v. National Bank & Anr.

The plaintiff/petitioner had filed a suit for declaration to challenge the order of dismissal of the service of her husband namely Narinder Kumar. In the suit it was also claimed that the plaintiffs were entitled to retiral benefits on account of the fact that Narinder Kumar was CR No.974 of 2010 2 missing since 19.3.2001. An application for amendment of plaint was made on the plea that the plaintiffs have procured the instructions dated 9.10.1998 i,.e. NABARD Pension Regulations, 1993 under which the defendant- respondents were required to consider the case of the plaintiffs for compassionate appointment and retiral benefits. It was the case of the plaintiff/petitioners that as per Section 108 of the Evidence Act the husband of the plaintiff/petitioner No.1 was to be presumed to be dead for having not been heard for seven seven years from 1993 to 2007. It was asserted that the order dated 29.11.2003 was arbitrary, illegal and invalid. The application was contested on the plea that by way of amendment the plaintiff/petitioners wanted to change the very nature of the suit and substitute one cause of action with another. It was pleaded that the amendment would cause prejudice to the defendant/respondents and was otherwise not necessary for determining the question in controversy between the parties. Learned trial court held that in order to determine the claim of amendment the following principles have to be taken into consideration:- “(a) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should not be allowed to change the subject matter or the controversy in the suit; (b) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the CR No.974 of 2010 3 facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment; (c) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs; (d) The parties should not be allowed amendment of a claim or relief which is barred by law of limitation when amendment is sought to be made as it defeats a legal right which has accrued in favour of a party. However, this may be allowed only in very exceptional circumstances when the facts of the case so warrant.” Learned trial court also held that in addition, it is required to be seen that the amendment should not result in injustice to the other party and that the amendment sought is necessary to determine the real question in controversy between the parties. Learned trial court also took note of the fact that the suit was filed in the year 2004 seeking declaration to the effect that the order of dismissal from service of the husband of plaintiff No.1, Narinder Kumar and father of plaintiffs No.2 and 3 was arbitrary, illegal, invalid and that the petitioners were entitled to retiral benefits on account of he being missing. The learned trial court found that after expiry of seven years it was not permissible for the plaintiff/petitioners to change the whole nature and cause of action of the suit. The learned trial court further found that instructions on which reliance was placed were of the year 1998, whereas CR No.974 of 2010 4 the suit was filed in 2004 and therefore, could not be said to be an event which could not be known or found out with due diligence by the plaintiff/petitioners at the time of filing of the suit. The application was dismissed. Mr.S.P.Sharma, learned counsel for the petitioners challenged the impugned order on the plea that the learned court below failed to notice that cause of action to assert that Narinder Kumar is presumed to be dead arose only after seven years from the date when he went missing and therefore, this fact could not be pleaded earlier. It was also the contention of the learned counsel for the petitioners that the application could not be dismissed only because of delay as the amendment sought was necessary to decide the dispute and to avoid multiplicity of proceedings. In support of this contention learned counsel for the petitioners placed reliance on the judgment of Hon'ble Supreme Court in the case of Prem Bakshi & Ors. Vs. Dharam Dev & Ors. (2002-1) PLR 558, wherein Hon'ble Supreme Court was pleased to lay down that when by way of amendment appellants only wanted to bring to the notice of the court the subsequent events and after amendment the defendants would get an opportunity to file written statement then it is not proper to reject the amendment. However, this judgment would have no application as in the present case the amendment sought was not with regard to the subsequent events but with regard to the reliance on instructions which were very much available at the time of filing of the suit in the year 2004. In the absence of CR No.974 of 2010 5 setting aside of order of dismissal mere fact that presumption of death could be drawn at a later stage would not give a fresh cause of action as was contended by the learned counsel for the petitioners. This judgment, therefore, would have no application to the facts of the present case. Learned counsel for the petitioners, thereafter referred to the judgment of Hon'ble Supreme Court in the case of Ram Kumar Barnwal Vs. Ram Lakhan (dead) 2007 (3) RCR (Civil) 279 to contend that subsequent events can be taken note of to do substantial justice. This judgment again is of no consequence, as already observed above the event sought to be pleaded is not subsequent event. Only subsequent alleged is that seven years have passed from the date when Narinder Kumar went missing and therefore, presumption of death has to be drawn. The cause of action cannot relate back to the date of filing of the suit so as to permit amendment of the suit, specially when relevance of presumption of death would only come into play when the order of dismissal is set aside. Learned counsel for the petitioners thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Puran Ram Vs. Bhaguram & Anr. 2008 (2) RCR (Civil) 499 to contend that court has discretion to allow amendment in the pleadings where relief sought to be added had become barred by limitation. This judgment again cannot help the petitioners as the discretion exercised by the learned trial court in this case cannot be said to be arbitrary or illegal so as to exercise jurisdiction under Article 227 of the CR No.974 of 2010 6 Constitution of India to challenge the order. Learned counsel for the petitioners also placed reliance on the judgment of this court in the case Prithi Pal Singh & Anr. Vs. Amrik Singh and Anr. 2008 (3) RCR (Civil) 504 to contend that amendment once allowed relate back to the date of initial institution of the suit. However in the given case the amendment could be restricted to the date of amendment if allowed, to contend that the court could not reject the application on the ground that on the date of filing of the application the cause of action now pleaded is not available. This judgment again cannot be of any help to the petitioners as in the present case learned trial court has rejected the application for the reason that the plaintiff/petitioners wanted to change the cause of action and nature of the suit completely. The learned counsel for the petitioners, thereafter placed reliance on the judgment of this court in the case of Jawahar Lal Vs. Dewan Chand 2008 (4) RCR (Civil) 218 to contend that the amendment could be allowed even after seven years if it did not change the cause of action and caused no prejudice to other party. This judgment again is of no help to the petitioners as the finding recorded by the learned trial court is that the amendment would change the cause of action as also nature of the suit which will cause prejudice to opposite party. Finally, reliance was placed on the judgment of this court in the case of Pargat Singh Vs. Ranjit Singh 2009 (1) RCR (Civil) 555, wherein CR No.974 of 2010 7 it was pleaded that an amendment of pleadings should be allowed if no injustice is likely to be caused to the other party and amendment is necessary for determination of real controversy between the parties. This court was further pleased to lay down that amendment can be allowed at any stage of proceedings to avoid multiplicity of litigation between the parties. This judgment is also of no help to the petitioners. As already observed above the court has come to a positive conclusion that the amendment is likely to cause prejudice to the defendant/respondents as the nature of the suit is likely to be changed. The learned trial court has further held that subsequent events are not relevant to the controversy in the suit as challenge in suit is to the order of dismissal, and in case order of dismissal is set aside then consequential relief is to follow nor it can be said that the amendment sought would be relevant to avoid multiplicity of proceedings, as in the absence of setting aside of order of dismissal the plaintiff/petitioners has no cause of action to file any other suit. The amendment if allowed would only result in delay of suit which is pending since 2004. The order passed by the learned trial court being in consonance with settled principle of law which does not call for any interference by this court in exercise of jurisdiction under Article 227 of the constitution of India.

16.02.2010 No merit. Dismissed. (Vinod K.Sharma) Judge