Madras High Court
N.Murali vs International Ocean Institute on 16 August, 2018
Author: P.T.Asha
Bench: P.T.Asha
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.08.2018
C O R A M
THE HONOURABLE Ms.JUSTICE P.T.ASHA
Civil Revision Petition (PD) No.253 of 2009
and C.M.P.No.1 of 2009
N.Murali,
Project Assistant,
International Ocean Institute,
IIT Campus, Chennai. ... Petitioner/Plaintiff/Petitioner
Vs.
1. International Ocean Institute,
Rep. by its Executive Director,
IIT Campus, Chennai.
2. Indian Institute of Technology,
Madras, Rep by its Director,
IIT Campus, Chennai.
3. Foundation of Sustainable Development,
Rep. by its Centre Director,
I.C & S.R. Building, 3rd Floor,
IIT Campus, Chennai. ... Respondents/Defendants
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution, against the order dated 08.12.2008 in I.A.No.19669 of 2008 in O.S.No.2043 of 2005 on the file of XIII Assistant City Civil Court, Chennai.
For Petitioner : Mr. B.Ravi
for Mr.T.Sezhian
For R2 : Mr.R.Parthiban
For R1 & R3 : Not ready in notice regarding
O R D E R
The above Civil Revision Petition is filed challenging the order dated 08.12.2008 on the file of XIII Assistant City Civil Court, Chennai in I.A.No.19669 of 2008 in O.S.No.2043 of 2005 in and by which the post trial amendment sought for by the plaintiff/revision petitioner herein was dismissed.
2. The brief narration of the proceedings prior to the filing of the revision petition is narrated herein below.
3. The Revision Petitioner filed a suit in O.S.No.2043 of 2005 for the following relief:-
a). Declaring that the plaintiff is a permanent Employee of the first Defendant Services of the Plaintiff as Project Assistant.
b). Granting permanent injunction restraining the defendants from terminating the plaintiff's Services.
4. In paragraph 3 of the plaint, the revision petitioner has narrated his initial employment into the first respondent centre and the subsequent transfer of his service with the third respondent trust. The revision petitioner has narrated as follows:-
The plaintiff humbly submits that the plaintiff joined as Office Assistant on 01.11.1994 in the first defendant's Operational Centre. The First Defendant is a Global Network Working for the sustainable use of the Oceans. It set up its centre in India in 1993 at the place of the 2nd defendant. The Centre is a division of the third defendant which is a Trust from 11.11.1998, the service of the plaintiff were lent to the third defendant and the same was approved in the meeting of the Trustee.
5. The petitioner would contend that the project which was initially entered into between the first and second defendants on 08.11.1993 was periodically extended and the last of such extensions was on 03.11.2003 in and by which the agreement was renewed for an further period of five years ie., till 03.11.2003. It was the further contention of the petitioner that on 31.03.2005 he was orally informed that his services was not required although the tenure of the project was extended upto 03.11.2008. The revision petitioner would contend that he was appointed by the first respondent as an Office Assistant and his services had only been lent to the third respondent for the project. He has therefore filed the suit for the relief mentioned therein. The second respondent had filed a written statement in and by which they have contended that there was no master servant relationship between the revision petitioner and the second respondent. The second respondent had only provided space for the third respondent to conduct his research projects and therefore no claim could be made as against the second respondent.
6. The first and third respondents herein had filed a written statement in which they have contended that the first respondent was a non profit, non Governmental Organization headquartered at Malta and that it has its operational centre in the Campus of the second respondent. The third respondent is a trust set up by the second respondent in partnership with the first respondent in August 1998. They would further contend that this trust was set up to promote awareness, research, consultancy, trainee and Education in order to enhance the sustainable development of natural resources, protection and conservation of the marine environment etc., They would further submit that the agreement that they have entered into with the second respondent and third respondent was that the second respondent would provide the basic infrastructural facilities to the centre, cooperate in conducting training programs, developing new courses, establishing links with other relative institutions, bring out major publications etc., The agreement does not touch upon the conditions of the staff working for the first respondent. The extension of the agreement was only between the respondents and had nothing to do with the employees.
7. In paragraph 17 and 18 of the said written statement, the first and second respondent had submit as follows:-
17. It is further submitted that at present there is absolutely no work for the plaintiff to discharge in the defendant's Institute in view of the fact that the project undertaken by the 1st Defendant has come to an end. Keeping this in mind, the plaintiff was informed in advance in January 2005 itself along with other staff members that the project would come to an end very shortly and their services would be discontinued.
18. The defendants here submit that the services of the other staff members have been discontinued since the project undertaken by the defendants have come to end. Therefore the plaintiff has no legal right to claim continuation of his service.
8. In the result, the respondents sought for dismissal of the suit.
9. After the conclusion of the trial, the revision petitioner has come forward with the impugned petition, the reasons for the amendment has been narrated in paragraphs 4 and 5 of the affidavit filed in support of the petition.
4. I submit that issues were framed and the trial commenced. During cross examination, DW.1 deposed that 1st defendant has ceased to function after the creation of the 3rd defendant. He has also deposed that the centre is now a division of the 3rd defendant set up by the 2nd defendant. Under these circumstances it is necessary that the prayer has to be amended to the effect for a declaration that I am the permanent employee of the defendants instead of the 1st defendant.
5. I submit that though the Hon'ble Court is within the jurisdiction to mould the relief as the circumstances require, I am filing the amendment petition as a matter of abundant caution. Further this amendment would not result in the change of cause of action nor require leading any further evidence nor her amending the pleadings.
10. The first and third respondents have filed a counter stating that the application was barred by the proviso under Order VI Rule 17 of C.P.C. wherein, it has been clearly stated that there cannot be an amendment of pleadings post trial and in the instant case, the trial had been concluded and that the revision petitioner is seeking to improve his case.
11. The second respondent had also filed a counter wherein they have contended that the revision petitioner is seeking to alter the entire basis and structure of the suit. Originally the suit was filed to declare the revision petitioner a permanent employee of the first respondent as a Project Assistant and even as per the averment in the plaint, the services of the revision petitioner was terminated on 31.03.2005. By the amendment the revision petitioner is now trying to make a claim against the second and third respondents and this would alter the entire character of the suit. That apart, the claim is barred by limitation since admittedly the cause of action arose on 01.04.2005 and the claim ought to have been made within three years from the date.
12. The learned XIV Assistant, City Civil Judge, Chennai, after hearing the parties dismissed the application on the ground that the plaintiff is now setting up an entirely a new case totally contra to original claim. The learned Judge had also observed that the post trial amendment could be allowed and the suit is posted for arguments. With these observations the impugned petition was dismissed.
13. Heard Mr.Ravi the learned counsel for the revision petitioner who would submit that the amendment was sought only on account of the evidence of DW.1 who had stated that the first respondent has ceased to function after the creation of the third respondent and that the first respondent is now a division of the third respondent which is set up by the second respondent. He would further contend that no prejudice is going to be caused to the respondents and it is only on account of the evidence that has been given by DW.1 that the present amendment is being filed.
14. Mr.Prathiban appearing on behalf of the second respondent would contend that by the amendment the entire character of the suit was undergoing a change. The petitioner who originally sought for declaration that he is an employee in the first respondent as a Project Assistant by reason of the amendment is now seeking to be declared as a permanent employee of all the respondents as a Project Attendant. He would contend that there is no employer employer-relationship between the second respondent and the revision petitioner and that the revision petitioner had been employed only for the project and the very nomenclature of his post would clarify this. He would also submit that the amendment is brought about to fill up the lacuna and was a post trial amendment.
15. In support of his plea that an amendment cannot be allowed after the trial, he had submitted the following judgments.
(i) Rajkumar Gurawara (Dead) thr. Lrs Vs. S.K.Sarwagi & Co.Pvt Ltd and another reported in 2008 8 MLJ page 307.
(ii) Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others reported in (2009) 10 SCC Page 84.
(iii) V.Padmanabha Kulasekara Doss @ P.K.Doss Vs. V.Sridharan reported in 2016 (6) CTS page 497.
16. He would further place a reliance on a judgment reported in (2005) 1 SCC Page 639 Mahendra L.Jain and others vs. Indore Development Authority and others where the Honble Supreme Court had considered what a project work. He would also submit that after the project was closed and when the revision petitioner had been appointed only for the project he cannot seek to have his services regularized and in support of his contention he has relied on the judgment of this Honble Court in the matter of W.P.Nos.32516 to 32520 of 2007.
17. Respondents 1 and 3 have not entered appearance in the revision petitioner.
18. A reading of the plaint would show that the revision petitioner was even on date of filing of the suit aware of the fact that the third respondent was a trust and the first respondent was division of this trust. He is also aware that the first respondent has only granted a place to the first respondent to set up the centre. He is also aware of the agreement that has been entered into between first and second respondent and the same has been extracted in detail in para 5 of the plaint.
19. Knowing this the plaintiff has consciously sought to be declared as permanent employee of the first respondent as its Project Assistant though, even according to the revision petitioner he joined the service of the first respondent as an Office Assistant. It is also seen from the counter filed by respondents 1 and 3 that the revision petitioner was kept informed that his service would be terminated even as early as January 2005 since the project had come to an end. The written statement of these respondents also provides detail about the arrangement between the respondents therefore even as early as January 2005 the revision petitioner was aware of the facts which he now seeks to introduce by way of an amendment. He was aware about the fact that the first respondent was a division of the third respondent and that the third respondent trust was set up by the second respondent. Despite such knowledge the revision petitioner has deemed it fit to file the petition for amending only in October 2008, after the trial in the suit was concluded.
20. The Honbe Supreme Court in the judgment Rajkumar Gurawara (dead) thr. Lrs. Vs. S.K.Sarwagi & Co. Pvt. Ltd and another reported in 2008 8 MLJ 307 has stated as follows:
It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.
21. The revision petition in the instant case has failed to satisfy any of the conditions prescribed in the proviso to Order VI Rule 17 and nor does it come under any of the conditions prescribed by the Hon'ble Supreme Court in Rajkumar Gurawara supra.
22. Further as already pointed out even on merits the amendment is sought for at this stage of the suit despite the fact that the revision petitioner was aware of all the details even when the suit was filed. The Honble Supreme Court in yet another judgment reported in 2009 10 SCC Page 84 Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others has held that the decision on an application made under Order VI Rule 17 of C.P.C is a very serious judicial exercise and the said exercise should never been undertaken in a casual manner.
23. It is already pointed out the only attempt on the part of the revision petitioner is to fill up the lacuna post the conclusion of the trial. This Court cannot be a party to the same. The learned XIII Assistant City Civil Judge has considered the application in detail and had given a reasoned order. I find no infirmity in the order passed by the learned Judge.
24. In the result, the Civil Revision Petition is dismissed and the order in I.A.No.19669 of 2008 is hereby confirmed. Considering the facts that the suit is of the year 2005 and the matter is posted for arguments the learned Judge is directed to dispose of the suit within a period of one month from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.
16.08.2018 Index :Yes/No Internet :Yes/No Speaking/non speaking bsm To The XIII Assistant City Civil Court, Chennai. P.T.Asha. J., bsm C.R.P.(PD).No.253 of 2009 and C.M.P.No.1 of 2009 16.08.2018