Gujarat High Court
Mukesh & Co. Tobacco Products Pvt. Ltd vs Gujarat State Forest Development ... on 12 October, 2011
Author: A.L.Dave
Bench: A.L.Dave
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION No 999 of 2000
with
CIVIL REVISION APPLICATIONS NO.1001 AND 1002 OF 2000
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MUKESH & CO. TOBACCO PRODUCTS PVT. LTD.
Versus
GUJARAT STATE FOREST DEVELOPMENT CORPORATION LTD.
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Appearance:
MR YM THAKKAR for Petitioner
MR JASHWANT MAKWANA for Respondent No. 1
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CORAM : MR.JUSTICE A.L.DAVE
Date of Order: 01/03/2001
ORAL ORDER
1.These three revisions applications arise out of orders passed by the learned 3rd Joint Civil Judge (S.D.), at Baroda, under various applications in Special Civil Suit No.691 of 1995. Since the issues involved in all these three revision applications are interconnected, they are heard and decided together by consent of parties.
2.All the three revision applications are preferred by the original plaintiff and, therefore, in this judgment, the revisioner is referred to as "the plaintiff" and the opponents are referred to as "the defendants" for sake of convenience.
3.The brief facts leading to the suit and the revision applications can be narrated thus :
3.1The defendant-Gujarat State Forest Development Corporation Limited is a State Government undertaking registered as a Government Company under the Companies Act. The Corporation has been appointed as sole selling agent for trading in four minior forest products, namely, Timru leaves, Mahuda flowers, Mahuda seeds and Gums. The Corporation also deals in several other miscellaneous minor forest products.
3.2The Corporation, as sole selling agent for trading in Timru leaves, collects Timru leaves from forests through tribals and for administrative convenience, the entire area in the State is divided into several areas known as "Units". The collection and sale of Timru leaves is done unitwise. For further convenience, each unit is divided into small pockets known as "Phad", which are collection centres where the tribals would bring the Timru leaves collected by them.
Sale of Timru leaves is undertaken under two modes, one is on lumpsum basis where the collection of a unit is sold to the purchaser on a lumpsum basis irrespective of quantity collected. In this method, the collection of Timru leaves is the responsibility of the purchaser at the price fixed by the Government. The second method of sale is the departmental sale, where the Corporation collects, processes and stores the Timru leaves in godown and, thereafter, sells them on weight basis.
3.3A new method was introduced in 1995 where the purchaser was required to accept delivery of unprocessed Timru leaves from Phad. The collection of leaves was done by the Corporation and the measurement was fixed at one standard bag weighing 36 kg. of Timru leaves and the purchasers were to offer the rate for each standard bag.
3.4The plaintiff-M/s Mukesh & Company Tobacco Products Private Limited of Durg, purchased 7 units aggregating 8310 bags under the new scheme. Out of this, he took delivery of 4310 bags from 6 units. So far as Vadali was concerned, a dispute arose. According to the plaintiff, the bags did not contain the same leaves as that of Vadali-5 unit. The material was not lifted by the plaintiff and in October 1995, a suit was filed by the plaintiff.
3.5During the pendency of the suit, there were some negotiations between the parties, as per the say of the plaintiff, and following those negotiations, he made some payment to the Corporation. A Court Commissioner was appointed to inspect and report about the goods not lifted by the plaintiff. The report of the Commissioner indicated variance in the goods weight-wise. Following the report, while the suit was pending, the plaintiff tendered application Ex.32 praying that the Corporation may be directed to refund the money paid by the plaintiff towards the price of Timru leaves. The said application was kept for hearing, but as it could not proceed, the plaintiff preferred Special Civil Application No.7468 of 1999 before this Court which came to be disposed on 28.9.1999 with a direction that the Civil Court at Baroda shall hear and decide Application Ex.32 as expeditiously as possible and, in any case, within one month from the date of reciept of the writ of the Court. Thereafter, Misc. Civil Application No.2215 of 1999 in the said Special Civil Application was preferred by the defendants. In that Misc. Civil Application, this Court directed that Civil Court, at Baroda, shall hear and decide Special Civil Suit No.691 of 1995 as expeditiously as possible and preferably within three months from the date of receipt of the certified copy of the order or writ of the Court, whichever was earlier. It was further directed that, if at the end of the said period, the Trial Court finds that delay is attributable to the applicants-present defendants or its officers or learned advocate before the Trial Court, the Trial Court shall proceed to hear and decide application Ex.32 expeditiously and preferably within one month from the date of expiry of the aforesaid period of three months. The said review application was thus disposed of by the said order dated the 25th October, 1999.
3.6Application Ex.32 came to be decided by the Trial Court on 9.2.2000, while deciding application Ex.154 in the said suit. Civil Revision Application No.1002 of 2000 is preferred to challenge the decision on Ex.32.
3.7During the pendency of the suit, the plaintiff preferred application Ex.129 on the 3rd November, 1999, seeking amendment of the plaint. In that application, the amendments were sought in paragraph 15 and 19 of the plaint. Relief was sought to add paragraph 15-A after paragraph 15 in the plaint, the contents whereof can be translated thus :-
"During the pendency of the suit, the defendant had submitted that they will give delivery of material shifted from the Phads of Vadali-V unit to godown. Believing the said submission as true, the plaintiff deposited Rs.17,25,000/towards the price of the suit material. But as the defendant has failed to give material as aforesaid, it is prayed that the price of the material may be awarded from the defendant along with interest."
3.8The amendment sought further in paragraph 19 was to the effect that the relief sought for in sub-paragraphs (1), (2) and (3) may be deleted and, instead, the following sub-paragraphs may be substituted:-
"(1) The plaintiff has paid Rs.30,08,000/- to the defendant towards the price of the suit material and therefore decree may be passed in favour of the plaintiff directing the defendant to pay the aforesaid amount with 18% interest from 27.10.95 till the realisation."
The said application came to be rejected by an order dated the 31st December, 1999, passed below the said application, Ex.129, which is the subject matter of challenge in Civil Revision Application No.1001 of 2000.
3.9Thereafter, the plaintiff preferred an application Ex.154 for addition of certain issues. It was suggested that the Court may frame two additional issues, just below issue No.2, as under :-
(1) "If yes, whether the plaintiff is entitled to claim relief as mentioned in application Ex.32?"
(2) "whether the defendant proves that counter claim is preferred within period of limitation?".
The Trial Court, after hearilng the parties in question, partly allowed this application. The Court ordered to frame issue No.2(B), as suggested by the plaintiff, i.e. by adding following clause below issue No.2 :-
"Whether the defendant proves that counter claim is preferred within the period of limitation?
The Trial Court, however, rejected the prayer for first suggested issue, namely, whether the plaintiff is entitled to claim the relief as mentioned in application Ex.32. The plaintiff, aggrieved by this order, has preferred Civil Revision Application No.999 of 2000.
4.In all these three matters, the plaintiff/revisioner is represented by learned advocate Mr. Y.M. Thakkar. Mr. Thakkar submitted that the Court below has erred in not appreciating the plaintiff's endeavour to avoid multiplicity of proceedings. According to Mr. Thakkar, all these three applications virtually came to be decided by the Trial Court while deciding application Ex.129. The amendment that was sought for by the plaintiff is on basis of a subsequent development that took place pending the trial. According to Mr. Thakkar, the relief that is sought in the plaint by way of amendment is only a consequential relief which has been overlooked by the learned Trial Judge and has been considered by the learned Trial Judge as an attempt on part of the plaintiff to change the nature of the suit and to escape from the admission made by the plaintiff in the application. Mr. Thakkar submitted that, initially, the suit was preferred on a premise that the goods lying at the Phad are the same for which the transaction was entered into between the parties and the plaintiff, therefore, preferred the suit for specific performance of the contract. It was only during the pendency of the suit that the plaintiff came to know about the switching of the material and the material being not of the quality for which the contract was entered into. By that time, the plaintiff had already paid the consideration for the goods in question. The plaintiff, therefore, preferred an application Ex.32 for refund of the said amount. By virtue of an order passed by this Court in the Special Civil Application, the Court was supposed to decide application Ex.32 within one month, if the suit was not decided within three months from the date of receipt of the writ or a copy of the order. That was not done. The plaintff, therefore, sought amendment of the plaint for framing of additional issues. While deciding the amendment application, the Trial Court virtually rejected the plaintiff's application Ex.32 as well as Ex.154. Mr. Thakkar submitted that the plaintiff is caught unawares since Ex.32 was not subject matter to be heard and decided when the parties argued Ex.129. Mr. Thakkar submitted, therefore, that all these aspects have been overlooked by the Trial Court. Mr. Thakkar submitted that the Trial Court observed that the plaintiff is introducing a new case which is not correct. In fact, it is only a consequential relief that is sought by the plaintiff. Likewise, Mr. Thakkar submitted that the Court observed that the plaintiff is trying to escape from the admission made in the application. According to Mr. Thakkar, this is an erroneous observation by the Court. The plaintiff has not made any admission in the plaint and any statement made in the application cannot be considered as an admission made by the plaintiff because the moment that application comes to be decided one way or the other, it ends. Accordings to Mr. Thakkar, these two are the basis for rejection of the amendment application, both of which are incorrect and, therefore, the revision applications may be allowed.
4.1Mr. Thakkar submitted that the settled proposition of law is that the Court is to be generous in allowing amendments of pleadings. When an amendment is allowed, it is only an additional plea that is permitted to the plaintiff and no decree is passed in favour of the plaintiff. In order to support his say, he placed reliance on several decisions.
4.2As regards Application Ex.154 challenged in Civil Revision Application No.999 of 2000, Mr. Thakkar submitted that the Trial Court overlooked the fact that the principles governing amendment of pleading and framing of issues are different and one cannot have impact on the other. Mr. Thakkar submitted that the Court observed that because amendment is not allowed, there is no question of framing of issues. This is an error committed by the Trial Court which requires to be corrected by allowing this revision application.
5.Against the contentions raised by Mr. Thakkar, Mr. Makwana submitted that the revision application must fail particularly on the following factors :-
(1) The amendment changes the nature of the suit.
The principal prayer that was sought in the plaint earlier is sought to be deleted and substituted by the new prayer indicated in amendment application. If the contents of these two sets of prayers are seen, they contain basic difference about the ownership of the goods.
(2) It is contended that the plaintiff, by seeking the amendment, is trying to circumvent the procedure of filing a new suit and is, thereby, attempting to avoid the payment of court fees as well as to circumvent the provisions of the Limitation Act. Mr. Makwana submitted that, if the admitted dates are seen, the plaintiff, admittedly, had knowledge about the change of the material on 9.9.1995 when he complained of the switching vide Ex.27. The present application is preferred on the 27th October, 1999. That would be after four years and, therefore, beyond limitation, if suit is to be filed. The plaintiff has made an attempt to circumvent this situation by preferring such an application.
(3) Ex.27 would indicate that the plaintiff had knowledge about the change of the material on 9.9.1995. The suit is preferred in October 1995 and, therefore, the plaintiff had a cause of action existing at that point of time for which no prayer is sought in the principal plaint, which is now sought to be introduced by the amendment.
(4) There is no amendment sought to the cause of action clause in the plaint and in absence of any cause of action in the plaint, no relief as sought for could have been sought. An attempt is made to mix up two causes of action and thereby circumvent the provisions of the Limitation Act.
(5) As regards the say that application Ex.32 came to be decided behind the back of the plaintiff, Mr. Makwana submitted that, if the order is seen, it indicates that the Trial Court had gone through the written arguments submitted by the learned advocate for the plaintiff and, therefore, it cannot be said that the plaintiff is not given an opportunity to make out a case.
(6) Lastly, Mr. Makwana submitted that the scope of a revision application under Section 115 of the Code of Civil Procedure is limited. In none of the revision applications, any jurisdictional error is indicated by the revisioners. The Court may, therefore, not interfere with the orders impugned in the revision applications and may dismiss the revision applications.
6.Having regard to the contentions raised by the parties and to the peculiar facts of the case, it would be convenient to consider the merits of Civil Revision Application No.1001 of 2000, in the first instance, since the decision of the other two Civil Revision Applications will be dependant on and connected with the reasons and conclusions arrived at while deciding Civil Revision Application Application No.1001 of 2000 wherein the revisioner-plaintiff has challenged the order passed by the Trial Court below application Ex.129, rejecting the plaintiff's/revisioner's application for amendment of the plaint.
7.In order to appreciate the contentions raised by the parties, it would be appropriate to mention, at this stage, the reliefs sought by the plaintiff in the original and unamended plaint. The plaint is at Annexure-D. A translated version of the plaint is also furnished on record. Paragraph 19 of the plaint seeking prayers runs as under :-
"19.The plaintiff therefore prays that :-
1. The defendant may be restrained from selling the 4000 bags of Unit-5 Vadali which the plaintiff has got from the forests pursuant to the tender notice being tender No.M.O./1068/95/7933, dated 21.3.95 which are lying in the godown at Khedbrahma of Himatnagar division Vadali Unit, pursuant to public notice for public auction dated 1.11.95 being M.O. 1065/95/3704, dated 16.10.95 and such exercise may be quashed.
2. Pass a decree of specific performance, directing the defendant to comply with condition No.22 of the tender issued dated 21.3.95 being M.O. 1078/95/7943 and all other conditions.
3. Declare that the defendant has no right or authority to sell the stock of 4000 bags lying in the Khedbrahma godown of Himatnagar Division Vadali Unit which is the subject matter of the sale order and the tender.
4. As the said stock is the subject matter of the right of the plaintiff, as the same is allotted to the plaintiff and as the plaintiff is prepared to pay the due amount of rent and interest of the godown, declare that no other person and/or body has any right or authority to purchase the said stock or make transaction pertaining to the said stock.
5. Pursuant to the public notice dated 16.10.95 issued by the defendant and also the notice issued in Gujarat Samachar on 20.10.95, the plaintiff has suffered the damage worth Rs.1.00 crores and order may be passed to award the same to the plaintiff along with mesne profit at the rate of 18% jointly and/or severally from the defendant Nos.1 & 2.
6. The cost of the suit may be awarded from the defendant.
7. That any other and further relief as may be deemed fit may be awarded."
A plain reading of the above relief clause in the plaint makes it clear that, according to the plaintiff, the subject matter of the suit is 4000 bags of Timru leaves of Unit-5 Vadali belong to the plaintiff pursuant to the tender accepted by the defendants and that the defendants may be restrained from selling the same. The second relief was for specific performance directing the defendants to comply with condition No.22 of the tender and the third relief was declaration to the effect that the defendants had no right or authority to sell the stock.
8.Condition No.22 of the tender, which is sought to be specifically performed by the defendants, states that before shifting the packets so taken over by the purchaser from Phad to the godown, the purchaser shall pack these bundles in bags and on every bag certain particulars shall be shown specifically.
9.Now, if we examine the amendment application Ex.129 before the Trial Court (Annexure-I before this Court), the plaintiff proposed amendments as stated in paragraph 12 of the application, which runs as under :-
"(A) After paragraph 15 in the suit plaint, the following para 15-A may be added.
15-A "During the pendency of the suit, the defendant had submitted that they will give delivery of material shifted from the Phads of Vadali-5 unit to godown. By believing the said submission as true, the plaintiff deposited Rs.17,25,000/- towards the price of the suit material.
But as the defendant has failed to give material as aforesaid, it is prayed that the price of the material may be awarded from the defendant along with interest."
(B) Sub para (1) to (3) in para 19 of the suit plaint may be cancelled and in its place, the following para may be added.
(1) The plaintiff has paid Rs.30,08,000/-
to the defendant towards the price of the suit material and therefore decree may be passed in favour of the plaintiff directing the defendant to pay the aforesaid amount with 18% interest from 27.10.95 till the realization."
A plain reading of the above amendment indicates that, according to the new amendment, the plainiff proposes to recover the money paid by the plaintiff to the defendants towards the price of the goods along with interest and seeks a decree therefor.
10.The Trial Court, after considering the arguments, by an elaborate order, has rejected the amendment sought in the plaint. The order is at Annexure-K. The Court observed that the case of the plaintiff in the original plaint is that the defendants have no right to sell the goods mentioned in the relief clause. An injunction in that regard was sought for. Now, by the amendment, the plaintiff proposes to delete this relief and proposes to seek recovery of the money paid by the plaintiff to the defendants and the Court was of the opinion that the relief that is sought to be added in place of the original relief is entirely different from the averments made in the plaint. The Court observed that the plaintiff has stated in the application that before filing the suit, he was aware about the goods having been changed by the defendants and, therefore, if he was aware of the change of the goods sold to him, he ought to have sought the relief of declaration and injunction in the suit, as initially sought for. The Court found that, if the amendment is allowed, the plaintiff will be permitted to put up a new case against the defendants and, therefore, the Court, ultimately, rejected the application. Mr. Thakkar's main contention is that the Court, while rejecting the application, has observed that if the amendment is allowed, the plaintiff would get an opportunity to withdraw his admission. As such, the plaintiff has not made any admission in the plaint. However, if the language of the order is seen, it is clear that what the Trial Court meant by this is that the plaintiff admitted in his application Ex.129 that he had come to know that the goods are changed before the filing of the suit. It is not as if the plaintiff came to know about the change of the goods only after the Commissioner's report, as contended by Mr. Thakkar. A plain reading of application Ex.129 makes it clear that the plaintiff had come to know about the change of the goods. It was only ascertained by drawing of the Panchnama by the Court Commissioner.
11.It also requires to be noted that the suit came to be filed on the 20th October, 1995. Much prior thereto, on the 9th September, 1995, the plaintiff had lodged a complaint about the changing of the material which is produced at Ex.27. This indicates that the plaintiff was aware about the change of the goods before filing of the suit and the contention that the plaintiff came to know about the change or was sure about the change only upon the Commissioner's report cannot be accepted.
12.What is further required to be noted apart from other facts is that the plaintiff proposes amendment only in the relief clauses. No other amendment is sought. The question, therefore, would be whether, on the averments made in the plaint and without indicating exact cause of action regarding the new relief sought as per the amendment, the relief can be granted. Apart from that, what is grossly clear is that, in the original plaint, the relief is regarding specific performance of the conditions of the tender and injunction against the defendants against sale or transfer of the goods, meaning thereby that the plaintiff asserted his right over the said goods. The amendment changes the positions and the plaintiff comes with a case that the suit goods are not his and that the defendants may be directed to repay whatever the money paid by him towards the said goods and a decree to that effect may be drawn. The question, therefore, would be, when the money was paid and under what circumstances the plaintiff claims refund of the money? Therefore, the entire nature of suit would be changed. The transaction would be different, the cause of action would be different and, therefore, the Trial Court has rightly come to the conclusion that if the amendment is allowed, the plaintiff would be seeking an altogether new relief which does not form part of the original case of the plaintiff. It is true that the Court need not take a technical or stringent view while considering the question of amendment of pleadings, but the settled proposition of law is that, when the amendment sought changes the nature of the suit and the relief sought therein, it cannot be permitted.
13.The plaintiff by proposed amendment proposes to change the suit for declaration, injunction and specific performance into a money suit for recovery of the price that was paid. No details regarding the payments are sought to be added in the plaint. Under the circumstances, the amendment could not have been allowed.
14.It requires to be noted that the complaint dated 9.9.1995 (Ex.27) makes it clear that plaintiff was aware about the change of material on that day, at least. The amendment is sought on the 27th October, 1999 and, therefore, the question of limitation would also be involved. However, no opinion is expressed on this aspect by this Court in this revision.
14.1Plaintiff's knowledge of change of goods prior to filing of suit and his not making an averment in the suit in that regard and absence of appropriate prayer in the plaint will also ;have to be considered in light of Order II, Rule 2 of CPC.
15.Apart from this, what is required to be considered by this Court, at this stage, is whether the order can be subjected to a revision under Section 115 of the CPC. For that purpose, it has to be indicated that the Court below has committed a jurisdictional error by exercising a jurisdiction not vested in it by law or by failing to exercise a jurisdiction so vested or by acting, in exercise of its jurisdiction, in an illegal or materially irregular manner. In this regard, it has to be noted that the revisioner is not able to point out any of the above stated three jurisdictional errors. All that is mainly contended is that the Court below has made observations which are factually not correct, namely, that there is no admission by the plaintiff and the order based on such factual error should be reviewed. It is not indicated that if the order was made in favour of the revisioner, it would have finally disposed of the suit and, therefore, in light of clause (9) to the proviso to sub-section (1) of Section 115 of CPC, this revision cannot be entertained. A case of failure of justice or irreparable injury is also not made out. The Court below has considered all the above points and has, ultimately, rightly come to the conclusion that it would amount to allowing the plaintiff to introduce a new case and, as such, amendment could not have been allowed by the Trial Court.
16.Mr. Thakkar has relied upon certain decisions in support of his contentions. In Nichhalbhai Vallabhai & Ors. v. Jaswantlal Zinabhai & Ors.(AIR 1966 SC 997), it was held that the amend was intended at avoiding multiplicity of suits and, therefore, it was rightly allowed. It may be noted that the decision was mainly based on the facts of that case and interpretation of the words used in the plaint was also taken into consideration. There cannot be any dispute about the principle that amendment should be allowed to avoid multiplicity of proceedings. But such amendments can be allowed provided the amendment sought for does not change the basic constitution, structure or fabric of the case of the party.
16.1Mr. Thakkar then relied on the decision in the case of Nair Service Society Ltd. v. K.C. Alexander and Ors.(AIR 1968 SC 1165). It was held in that case that considering the unusually prolonged litigation, amendment was allowed to avoid circuity of litigation. The decision was rendered on facts of that particular case.
16.2In V.R. Nathan v. Mac. Laboratories (P) Ltd. (AIR 1975 Madras 189), relied on by Mr. Thakkar, it was held that in a suit for injunction, amendment of plaint seeking relief of damages in lieu of or in addition to injunction cannot be refused. In the instant case, in a suit for declaration, injunction and specific performance, the plaintiff proposes to add a relief of recovery of money paid by the plaintiff to the defendants and damages for the same cause of action for which injunction is sought. It cannot be overlooked that the plaintiff does not seek any amendment other than the amendment in the relief clause.
16.3Mr. Thakkar then relied on a judgment of the Calcutta High Court in the case of Netai Chandra Ghosh v. Gour Mohan Ghosh and Others (AIR 1976 Calcutta 58). In that case, the dispute was regarding a jointly owned property between the co-sharers and, by way of an amendment, a mandatory injunction was sought. In facts of that case, the Court held that the co-sharer cannot use the property in his possession in such manner as to interfere with the plaintiff's enjoyment of his portion of the joint property and, therefore, in a suit against co-sharer for declaration of joint title and possession, by way of amendment, a prayer for mandatory injunction can be included.
16.4Mr. Thakkar then relied on the decision of the Apex Court in the case of M/s Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91]. He submitted that the Apex Court has held that procedural law is intended to facilitate and not to obstruct the course of substantive justice. In that case, a question regarding amendment was considered and the Court observed that, if a plaintiff seeks to alter the cause of action itself and to introduce, indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse such amendment even if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due lapse of time. Mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint, the cause of action will be defective. In that case, an attempt to supply the omission has been and could some times be viewed as equivalent to an introduction of a new cause of action. The Court observed that defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadeings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional Court fees, which may be payable, or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Court should, ordinarily, refuse prayers for amendment of pleadings.
16.4.1These observations of the Apex Court have to viewed from the fact that the plaintiff proposes to amend the plaint on the ground that the goods have been changed. He had made payment for the goods. He came to know about the same only on receipt of the Commissioner's Report. Against these facts, it is clear that on 9.9.1995 a complaint was made by the plaintiff about the change of goods. Despite this, while filing the suit, the plaintiff keeps quiet about this fact. He even makes payment as claimed. It has also to be noted that the amendment sought by the plaintiff does not contain any cause of action for the relief that is sought to be added and that the amendment is sought on 27.10.1999, which would be after a period of four years from 9.9.1995, the date on which the plaintiff claims to have knowledge about change of goods by lodging the complaint about the change of the goods and, in view of the observations, if lapse of time has barred the remedy on a newly constituted cause of action, the Court should ordinarily refuse the amendment of pleadings.
17.Apart from this, certain other decisions may be taken into consideration on question of amendment and maintainability of revision. In M.L. Sethi v. R.P. Kapur (AIR 1972 SCC 2379), the Apex Court held that "Section 115 empowers the High Court to satisfy itself on three matters, namely (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on these three matters it has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law." The Apex Court observed that an erroneous decision on a question of law reached by the subordinate Court which has no relation to question of jurisdiction of that Court cannot be corrected by the High Court under Section 115.
17.1In Manick Chandra Nandy v. Debdas Nandy and Ors. (AIR 1986 SC 446), the Apex Court observed that exercise of revisional jurisdiction is confined to question of jurisdiction only.
18.In view of the above discussion, this Court finds no error of law or fact or jurisdiction committed by the Trial Court while deciding Application Ex.129 and does not deem it a fit case for any interference in exercise of its revisional jurisdiction. Revision Application No.1001 of 2000, therefore, must fail.
19.Now, coming to Civil Revision Application No.999 of 2000, it challenges an order passed by the Trial Court below Ex.154. Ex.154 is an application given by the plaintiff for framing two issues. The Trial Court, after considering the contentions raised by the parties, partly allowed the application and added the following issue :-
"Whether defendant proves that the counter claim is preferred within period of limitation?"
19.1The Trial Court rejected framing of following issue, after issue No.2:-
"Whether the plaintiff is entitled to claim relief as mentioned in application Ex.32?"
This rejection has aggrieved the plaintiff. In Ex.32, the plaintiff has sought refund of the amount paid by the plaintiff to the defendant towards the price of the suit goods. The Trial Court observed that since the amendment for the identical relief, that is recovery of the amount paid by the plaintiff to the defendants towards the suit goods is not allowed, the issue is not required to be framed. In view of the foreging discussion, as it is found that the amendment in the relief clause was rightly rejected, there is no question of interfering with the order rejecting the framing of issue for that very relief. No illegality or error in exercise of jurisdiction is found to have been committed by the Trial Court. The Revision Application, therefore, must fail.
20.Coming to Civil Revision Application No.1002 of 2000, by this revision application, the plaintiff seeks to challenge order passed by Ex.32 by the Trial Court. By this application, the plaintiff sought a direction on the defendant to pay the price money paid by the plaintiff to the defendants for the suit goods with interest at 18%. The Trial Court rejected this application while deciding application Ex.154. If the application is seen, it is practically an attempt on the part of the plaintiff to have a decree against the defendant for the money claimed to have been paid by the plaintiff towards the price of the goods, without adjudication on various questions, namely, whether the goods were changed; whether the plaintiff had paid money; whether the plaintiff was entitled to recover that money; and whether the claim was made within the period of limitation. The main contention raised to assail this order is that this revision application is decided behind the back of the plaintiff without affording any audience. In this regard, attention of this Court is drawn to the fact that the plaintiff had filed written arguments in support of application Ex.32 at Ex.101. A copy of the written arguments is also produced on record of this Court as well. Apart from this, no other contention is raised to assail this order.
21.To sum up, it can be stated that this group of revision applications must fail on account of want of any jurisdictional error found to have been committed by the Trial Court while passing the impugned orders. The plaintiff, first by application Ex.32, tried to recover the amount from the defendant without adjudication by giving this application circumventing the requirements of law. Then the amendment to the plaint is sought for that very purpose vide Ex.129 and then by Ex.154, issue is sought to be introduced for that very relief. All these three applications have been rightly rejected by the Trial Court and this Court, having come to the conclusion that there is no jurisdictional error committed by the Trial Court nor any illegality or impropriety is found and that even if the amendment was allowed, it would not have concluded the suit, is not inclined to intefere with the impuged orders. Hence, all the revision applications are dismissed. Notice is discharged in C.R.A. No.999 of 2000. No Costs.
[ A.L. DAVE, J. ] gt