Madras High Court
Karuthakkan Nadar vs The Tamil Nadu Electricity Board ... on 19 January, 2001
Equivalent citations: (2001)1MLJ833
ORDER E. Padmanabhan, J.
1. Being aggrieved by the fair and decretal order dated 17.4.1998 made in I.A. No. 22 of 1998 in A.S. No. 9 of 1995 on the file of the Principal Subordinate Court, Tirunelveli, the present revision petition has been preferred.
2. This Court ordered notice of motion to the respondents on 15.7.1998. The respondents have been served and they have entered appearance through their advocates. At the stage of notice of motion, with the consent of the counsel for either side, the revision itself is taken up for final disposal.
3. The factual matrix leading to the revision could be summarised briefly. The petitioner instituted the suit O.S. No. 1339 of 1988 on the file of the District Munsif Court, Tirunelveli, seeking relief of permanent injunction restraining the Tamil Nadu Electricity Board and its subordinates from taking any steps to disconnect the electricity supply to the plaintiff's pumpset in S.C. No. 134, Ayankulam.
4. According to the plaint averments, the respondents are arbitrarily demanding a sum of Rs. 8,592 without any basis, the said amount has been fixed arbitrarily in a whimsical manner without taking into consideration of the fact that the petitioner had executed necessary agreement on 11.4.1988 and that he had purchased the 5 H.P. pumpset only on 1.6.1988. It is the case of the petitioner that no enquiry nor any inspection was ever conducted before fixing the said amount. The plaintiff is not liable to pay the amount arbitrarily demanded by the respondents. The order directing him to pay the said sum is illegal and void ab initio.
5. The respondents are threatening to disconnect the electricity supply to the pumpset even after the plaintiff explaining the fact. The respondents have no right to disconnect the electricity supply, much less arbitrarily. Hence, the suit for permanent injunction to restrain the respondents from disconnecting the electricity supply.
6. The cause of action for the suit even as set out in the plaint arose on 27.7.1988, 16.8.1988 and 24.4.1988 when the second defendant had sent a communication threatening to disconnect the electricity supply in S.C. No. 134 of Ayankulam village. The petitioner had valued the suit for the purpose of court-fee and jurisdiction. The petitioner had prayed for permanent injunction and paid the court-fee of Rs. 30.50 while valuing the suit claim at Rs. 400.
7. Per contra, the respondents pleaded that in S.C. No. 134, the petitioner has been permitted to connect a load of 3 H.P. Power only. The petitioner had applied for an additional load of 2 H.P. and an agreement has been received from the plaintiff on 11.4.1988. Only after sanction, the petitioner is entitled to use the additional load. Without sanction of additional load, the petitioner had unauthorisedly used additional load of 2 H.P. in addition to the sanctioned load of 3 H.P. which was detected by the Anti-Power Theft Squad during the surprising inspection on 20.6.1988. For the unauthorised additional load an initial assessment notice was sent to the petitioner on 27.7.1988. On 20th August, 1988, the service connection was disconnected as the petitioner had failed to state either his objection or to pay the amount as provisionally assessed and demanded. After the disconnection, the petitioner had restored the electricity connection and was drawing electricity without reference to Electricity Board. Once again on 2.2.1989 the Anti-Power Theft Squad detected the theft and caught the petitioner red-handed. A police complaint was laid.
8. The petitioner filed W.P. No. 4600 of 1989 on the file of this Court and as per the interim orders of this Court the service connection was restored on the petitioner remitting a sum of Rs. 5,000. This Court further directed that final assessment proceedings may go on after notice to the petitioner. The entire premise of the suit as if the electricity service connection had not been disconnected is a false and mischievous representation. The respondent Board is entitled to disconnect the service connection when the consumer is either fails to remit the charges or violates the terms and conditions of supply. The petitioner had no cause of action to institute the suit.
9. On the said pleadings, the parties went to trial. The trial Court framed the following three issues:
(1) Whether the plaintiff is entitled to the relief of permanent injunction?
(2) Whether there is cause of action for the suit? and (3) To what relief the plaintiff is entitled to?
10. After contest, the trial Court dismissed the suit on merits, while upholding the plea of the respondents that the petitioner had committed theft of electrical energy and had violated the terms and conditions of supply. The trial Court also held that in the absence of the petitioner seeking the relief of declaration with respect to the orders of assessment, the suit seeking the relief of permanent injunction is not maintainable. The trial Court also held that the cause of action pleaded is not true. As against the judgment of the trial Court dated 31.1.1995, the petitioner preferred A.S. No. 9 of 1995. Pending the appeal, the petitioner filed an application under Order 6, Rule 17 of the C.P.C. to amend the pleadings. The amendment being to delete the relief already set out in the plaint and to substitute the same with the following relief:
(a) for a declaration that the communication dated 16.8.1988 sent by Junior Engineer, Tamil Nadu Electricity Board, Thisayanvilai, is illegal and void for a consequential permanent injunction restraining the defendants, their men and agents from disconnecting the electricity supply to the plaintiff's pumpset in S.C. No. 134 Ayankulam on the basis of the said order.
11. The said application was resisted by the respondents contending that the proposed amendment cannot be allowed as it alters the character and nature of the suit and that the application is highly belated and even after three years of filing of the first appeal, the said application has been filed. The respondents also pointed out that it is not a formal defect and the same cannot be allowed. The petitioner cannot be allowed to alter the relief after ten years and seek the relief of declaration. The amendment if allowed would amount to permitting the petitioner to file a fresh suit, which is barred by limitation.
12. The petitioner had committed theft of electrical energy on two occasions and therefore, the liability has been assessed as per the terms and conditions of supply, which assessment had become final subject to the pending writ petition. The petitioner also filed a writ petition after the filing of the suit challenging the assessment proceedings.
13. The Court below by a fair and decretal order dated 17th of April, 1988 dismissed the application as no case has been made out for amendment and the amendment prayed for is impermissible. Being aggrieved, the present revision petitioner has been filed.
14. Heard Mrs. Chitra Sampath, learned Counsel appearing for the petitioner and Mr. V. Rangabashyam, learned Counsel appearing for the respondents.
15. The learned Counsel for the petitioner contended that the amendment of relief alone had been prayed for and by allowing such an application for amendment neither the cause of action nor the character of the suit nor the basis of the suit claim has been changed or altered, while pointing out that the petitioner had already set out every detail in the plaint. The learned Counsel also pointed out that when objection had not been raised by the respondents by way of written statement as to the maintainability of the suit, there is no warrant to dismiss the suit claim as not maintainable, without challenging the assessment proceedings.
16. Per contra, Mr. Rangabashyam, learned Counsel for the respondents contended that the amendment if allowed, will alter the nature and character of the suit claim and such an amendment cannot be ordered at the belated stage and more so when a suit on the date of application for amendment will be barred by limitation. The learned Counsel for the respondents further pointed out that the amendment to declare an order demanding payment is of no consequence unless the provisional and final assessment proceedings are challenged or a declaration is sought for in that respect. Further the petitioner had already filed writ petition challenging the assessment proceedings, which has already been disposed of by this Court. In the circumstances, there is no reason at all to interfere with the order passed by the Court below.
17. Mrs. Chitra Sampath also contended that the order passed by the Court below is non-speaking and it is liable to be set aside. Mr. Rangabashyam further contended that what cannot be done directly cannot be allowed to be done indirectly and a valuable right which has accrued to the respondents should not be allowed to be defeated by allowing the application for amendment. The learned Counsel for either side relied upon earlier pronouncements of this Court as well as the Apex Court in support of their respective contentions.
18. It is fairly admitted that on the date of application filed for amendment, the relief of declaration is barred by limitation as the proceedings with respect of which the declaration sought for is dated 16.8.1988, while the application has been filed after 10 years. Incidentally it is to be pointed out that order dated 16.8.1988 is a consequential order demanding payment, which is not the assessment proceedings. Even in the cause of action paragraph, the proceedings of assessment by the executive engineer either provisional or final has not been referred to nor there is any plea with respect to the said assessment or adjudication proceedings. The declaration as per the proposed amendment relates to a demand made by the Junior Engineer as when provisional assessment was made by the Assistant Executive Engineer and the final assessment has been ordered by the Executive Engineer, which Executive Engineer is not a party.
19. As such it is clear that not only the nature of the suit is sought to be altered but also the cause of action as well. Further the assessment order by which the liability of the petitioner had been assessed has neither been challenged in the original plaint nor the proposed relief would cover the same. That apart the petitioner had already filed a writ petition. Despite. that Mrs. Chitra Sampath, learned Counsel for the petitioner vehemently contended that it is only a formal amendment and it will not alter the character or nature of the suit. This Court is unable to sustain the said contention.
20. The learned Counsel for the petitioner relied upon the decision of the Apex Court in L.J. Leach and Co. Ltd. and Anr v. Jardine Skinner and Co. A. I. R. 1957 S.C. 357, in support of her contention. This Court finds that the said pronouncement will not advance the case of the petitioner. In the said case Venkatrama Ayyar, J. speaking for the Bench held thus:
It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.
Their Lordships laid down that the Courts as a rule should decline to allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of application.
21. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. A.I.R. 1957 S.C. 363, their Lordships while following the judgment in L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. A.I.R. 1957 S.C. 357, held that all the amendments ought to be allowed which satisfy the two conditions:
(i) not working injustice to the other side, and
(ii) of being necessary for the purpose of determining the real questions in controversy between the parties.
The Apex Court further held that the amendments should be rejected only where the parties cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. In the said pronouncement, the Apex Court laid down the tests. Applying the tests laid down on the facts of the case the amendment applied for though not only sought to introduce a new relief it also alters the character of the suit, besides it is definitely barred by limitation.
22. Mrs. Chitra Sampath further relied upon the decision in A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation AIR-1967 S.C. 96, wherein the Apex Court held thus:
It is not in dispute that at the date of the application for amendment a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit new case or cause of action is barred: Weddon v. Nealo (1887) 19 Q.B.D. 594. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts the amendment will be allowed even after the expiry of the statutory period of limitation. See Charon Das v. Amir Khan L.R. 47 LA. 255 : A.I.R. 1921 P.C. 50 and L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. 1957 S.C.R. 438 : A.I.R. 1957 S.C. 357.
8. The principal reasons that have led to the rule last mentioned are first that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes Cropper v. Smith (1884) 26 Ch. D. 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba (1909) I.L.R. 33 Bom. 644 at 651 approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. 1957 S.C.R. 595 at 603 : A.I.R. 1957 S.C. 363 at 366.
23. The amendment sought for is to include the relief of declaration in respect of a demand made, which demand is consequential to the assessment proceedings. But it has to be pointed out that the assessment proceedings had neither been challenged in the plaint nor there is any pleading as to how the assessment proceedings is illegal or unenforceable and as to why the respondents should be restrained by relief of permanent injunction from enforcing the assessment of proceedings in the absence of such pleadings, the amendment sought for definitely alters the case and nature of the suit as well. As held by the Apex Court in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation A.I.R. 1967 S.C. 96, the general rule is that a party is not allowed by amendment to set up a new case or new cause of action, particularly, when a suit of new case or new cause of action is barred. Hence this pronouncement also far from supporting the petitioner is against the petitioner.
24. The learned Counsel for the petitioner further relied upon the decision of S.S. Subramani, J. in P. Jayabaskar and Ors. v. Saraswathi and Ors. (2000) 2 C.T.C. 334, in support of her contention that this Court has the discretion to allow the amendment in the interest of justice and that the pleas of limitation have to be decided only at the time of final disposal of the suit. This contention also cannot be sustained in view of the recent pronouncement of the Apex Court.
25. The learned Counsel for the petitioner relied upon the decision of the Apex Court in B.K.M. Pillai v. P. Pillai (2000) 2 M.L.J. (S.C.) 20 : (2000) 1 C.T.C. 163. This decision in no way supports the contention advanced by the learned Counsel for the petitioner.
26. Per contra, Mr. Rangabashyam, learned Counsel for the respondents referred to the latest pronouncement of the Apex Court in Pronoy Kumary Sanyal v. Beni Madhav Sanayal J. T. (2000) 10 S.C. 366 and contended that the amendment applied for after a lapse of 10 years is definitely barred by limitation and it is unnecessary to reserve the said question to be agitated on a later point of time, while allowing the application for amendment. In that context it has been held thus:
2. In the order under challenge, the High Court was considering the validity of an order passed by the trial Court allowing the amendment of the plaint by the respondent before the learned Counsel on behalf of the petitioner before us, submitted to the High Court that the question of limitation arose and the High Court said, "At this stage, question of limitation need not be gone into. At the time of disposal of the suit, such question may be raised by the petitioner...." We are of the view that this is not the correct approach. The High Court should have considered at this stage whether the amendment of the plaint that was sought was barred by time. It is, therefore, necessary to set aside the order under challenge and to restore to the High Court the civil revision application (C.C.I.414 of 1999) to be heard and disposed of afresh, bearing in mind what we have said above.
The said decision squarely applies to the facts of the present case.
27. The learned Counsel for the respondents also relied upon the decision of K.P. Siva-subramaniam, J in the N. Srinivasan v. Muthammal (1998) 3 L.W. 638. The learned Judge held thus:
12. It is also to be noted that there is absolutely no bona fides on the part of the defendant to have come forward with a belated petition for amendment even though he pleads that he had seen the promissory note only when he was in witness box. Such a plea cannot be accepted having regard to the clear stand taken by him in the original statement. As stated earlier, in the original written statement he has specifically pleaded that the month as found in the promissory note had been corrected, that he had executed the promissory note only in the. month of January, 1992 and not in November, 1992. Such a pleading could not have been made without having seen the suit promissory note and therefore, the contention that the defendant had seen the suit promissory note only when he was in the witness box cannot be accepted and has to be held as false. It is also pertinent to note that in this case the plaintiff after examining herself as P. W. 1 has closed her case and in the midst of examining himself as D.W.1 the defendant has come forward with the present petition for amendment of the written statement. In a decision reported in Murthi Gounder v. Karuppanna Gounder A.I.R. 1976 Mad. 302, C.J.R. Paul, J. had occasion to consider the effect of filing belated additional written statement and considering the stage of which the application was filed, learned Judge has held that undoubtedly prejudice would be caused to the plaintiff necessitating the filing of a reply statement and framing of fresh and different issues for consideration.
28. In Vijendra Kumar Goel v. Kusum Bhuwania (1991) 11 S.C.C. 457, the Apex Court in a suit filed for declaration and injunction only and later sought to be altered for specific performance held that such a conversion is impermissible by amendment and the claim for specific performance had become barred by limitation. In that context, their Lordships held thus:
4. In the instant case, the High Court appears to have proceeded on the basis that in the plaint the plaintiff- respondent has made out a case for specific performance and nothing now had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiff- respondent was seeking specific performance or the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be covered into a suit for specific performance by the plaintiff- respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation. The submission of Shri Dhavan is that even on the date of the filing of the suit, the claim for specific performance was barred by limitation. We do not propose to go into that question.
5. In our opinion, therefore, the impugned order of the High Court allowing the amendment of the plaint cannot be sustained and has to be set aside.
29. In Radhika Devi v. Bajrangi Singh and Ors. (1996) 7 S.C.C. 486, the Apex Court held that Courts normally would grant the amendment of plaint and only in exceptional cases, where the accrued rights are taken away by the amendment of the pleadings, the Court would refuse the amendment.
30. In Haridas Aildas Thadani and Ors. v. Godrej Rustom Kermani (1984) 1 S.C.C. 668, the Apex Court laid down the test for allowing an application for amendment of the plaint, while following the decision in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. 1957 S.C.R. 595 : A.I.R 1957 S.C. 363. The Apex Court held thus:
In case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. 1957 S.C.R. 595 : A.I.R. 1957 S.C. 363, this Court has held that the test for allowing the amendment is to find out whether the proposed amendment works any serious injustice to the other side. It is well settled that the Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.
31. In the light of the above overwhelming pronouncement of the Apex Court and when the application for amendment has been taken out after 10 years from the date of the adjudication proceedings in respect of which declaration is now sought for, which is also barred by limitation and when the respondent cannot be compensated with cost, this is not a fit case where this Court would be justified in interfering with the order passed by the Court below. It is true that the Court below had not considered the application elaborately but it had rejected the application, assigning two grounds, on that ground the order passed by the Court below need not be set aside and remitted back.
32. In the present case, as pointed out above, the amendment applied for would not only alter the character and nature of the plaint suit but also amount to allowing the application for amendment of relief which is barred by limitation on the date when the application came to be filed. This Court is bound by the pronouncement of the Apex Court in John v. Ambiloth Krishnan and Ors. J.T. (2600) 10 S.C. 367, which is on the point.
33. In the circumstances the order of the Court below is confirmed and the civil revision petition is dismissed. The parties shall bear their respective costs in this revision. Consequently, the connected C.M.P. is also dismissed.