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PETITIONER: MUNI LAL

       Vs.

RESPONDENT: THE ORIENTAL FIRE & GENERALINSURANCE COMPANY LTD. & ANR.

DATE OF JUDGMENT09/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J)

CITATION:  1996 AIR  642            1996 SCC  (1)  90  JT 1995 (8)   283        1995 SCALE  (6)501

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard the  counsel on both sides. The admitted facts are  that the  appellant had  got  insured  his  truck bearing registration  No. HPA 6288 with the respondent No. 1 on March  28, 1983.  During  the  course  of  employment  of carriage of  goods, the  truck handed  over to the driver on October 7,  1983 was  not returned to the appellant. Thereby he lost  the truck  by an  act of misfeasance of the driver. The appellant  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  compensation  for  the  loss  of  truck  or specified amount  of compensation  from the  respondents was not maintainable.  On appeal,  the District  Judge  in  case No.138-S/13 of  1988 by  judgment and  decree dated June 16, 1990 confirmed  the same  which was  further affirmed by the High Court  in Second  Appeal No.  432/90 by  judgment dated November 27, 1990.      Mr.  R.K.   Khanna,  learned   counsel  after  thorough preparation of  the case  and with  all pursuation contended that by  operation  of  Section  28  of  the  Contract  Act, limitation of  one  year  prescribed  in  Clause  8  of  the contract is  void. The  appellant may sue within three years from the  date of  discovery of the loss of the vehicle. The

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courts below,  therefore, were  not justified  in dismissing the suit.  He contended  that since  the  appellant  claimed declaration of  the entitlement,  an application under Order 6, Rule  17 C.P.C.  was filed in the appellate Court seeking consequential relief  and that  the District  Judge and  the High Court were not, therefore, right in rejecting the claim holding that  the suit  is barred by limitation and when the suit   was    initially   instituted    within   limitation. Consequently, the  relief, though  during the  course of the proceeding be  barred by limitation, being incidental to the grant of  the declaration, the appellant cannot be denied of the consequential  relief. The  District Judge  and the High Court were  not right in refusing to permit amendment of the plaint.      The question,  therefore, is  whether the appellant had properly 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. Section 34  of the  Specific Relief  Act provides  that  any person entitled  to a legal character, or to any right as to any property  may,  institute  a  suit  against  any  person denying or  interested to  deny, his title to such character or right,  and the  court may  in its  discretion make  such declaration and  the plaintiff need not ask for such relief. However, proviso  to the  said Section  puts the controversy beyond pale  of doubt  that "no  courts shall  make any such declaration where the plaintiff, being able to ask for other relief than a mere declaration of title, omits to do so". In other words,  mere declaration  without consequential relief does not  provide the needed relief in the suit, it would be for the  plaintiff to  seek both  the reliefs.  The omission thereof  mandates   the  Court   to  refuse   to  grant  the declaratory relief. In this appeal, the appellant has merely asked for  a declaration  that he is entitled to the payment for the  loss of  the truck in terms of the contract but not consequential relief of payment of the quantified amount, as rightly pointed  out by  the  courts  below.  The  question, therefore, is  whether the  amendment under Order 6, Rule 17 C.P.C. could be ordered in this background. Section 3 of the Limitation Act  speaks of  bar of  limitation providing that subject to  the provisions  contained in  Section  4  to  24 (inclusive), every  suit instituted,  after  the  prescribed period shall  be dismissed, although limitation has not been set up  as the  defence. In  other words,  unless 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

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of determining  the real question in controversy between the parties. The  amendment to grant consequential relief sought for in  this case,  is as envisaged in proviso to Section 34 of the  Specific Relief Act, 1963. That relief was, however, available to him, to be asked for, when the suit was filed.      Admittedly,  by   the  date   of  the  application  for amendment filed,  the relief stood barred by limitation. The question, therefore, is whether the Court would be justified in granting  amendment of the pleadings in such manner so as to defeat  valuable right  of defence  of bar  of limitation given to  the defendant.  It is  true that this Court in the case of  Vineet Kumar  v. Mangal  Sain Wadhera  reported  in [(1984) 3  SCC 352 (at page 360, in paragraph 16)] held that normally amendment  is not  allowed, if it changes the cause of  action.  But  it  is  well  recognized  that  where  the amendment does not constitute the addition of a new cause of action, or  raise a  new case,  but amounts to not more than adding to  the facts  already on record, the amendment would be allowed even after the statutory period of limitation. In that case,  the question  of limitation  was not  really  in issue. The  question was whether the tenant was liable to be ejected. The  plea was that there was an exemption period of 10 years  from the  purview of  the  Rent  Control  Act,  if pending proceedings  10 years’  period has  elapsed. On that ground a  new  right  had  arisen  to  the  tenant  to  take advantage of  the benefit  of the  provisions  of  the  Rent Control Act.  In these  circumstances, this  Court held that the bar  of limitation  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 on the right to relief or the manner of  moulding it,  is brought diligently to the notice of the  tribunal (Emphasis  supplied), it cannot blink at it or be  blind to  events which  stultify or  render inept the decreetal remedy.  Equity justifies  bending  the  rules  of procedure, where  no specific  provision of fair-play is not violated,  with   a  view  to  promote  substantial  justice subject, of  course, to  the absence  of other  disentitling factors or  just circumstances  (Emphasis supplied). Nor can we contemplate  any limitation on this power to take note of updated facts  to confine  it to  the Trial Court." In other words, this  Court laid  emphasis that  with a view to mould the relief  a new  fact can always be taken into account not merely by  the trial  court but even by the appellate court. Where the  appeal is  delayed even by necessary implication, the relief  of amendment  in that  event cannot be given. In other words,  to render  substantial justice without causing injustice to  the other  party or violating fair-play, Court would be  entitled to  grant proper relief even at the stage of appellate  forum. It  is seen  that the  ratio of Jagdish Singh  v.   Natthu  Singh   [AIR  1992   SC  1604]  is  also inapplicable to the facts of this case. That case relates to a suit  instituted  for  specific  performance  but  without abandoning the  relief  of  specific  performance  alternate relief for  damages was  also sought for. This Court relying

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upon the  proviso to  sub-section (5)  of Section  21 of the Specific Relief Act which expressly 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.  Considered  from  this perspective, we  are of  the opinion that the District Court and the  High Court  were right  in refusing  the prayer  of amendment of the suit and the courts below had not committed any error of law warranting interference.      The  appeal   is  accordingly  dismissed  but,  in  the circumstances, without costs.