Punjab-Haryana High Court
Bharat Construction And Engineering ... vs Haryana State Electricity Board And ... on 26 April, 1996
Equivalent citations: (1996)113PLR677
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. "Whether a plaint in a suit for rendition of accounts and payment of the amount, as may be found due thereafter can be permitted to be amended to claim instead a specific amount?" is the point for consideration in this petition, The brief facts relevant for disposal of present revision petition are :
Plaintiff-petitioner (hereinafter referred to as the petitioner) was appointed as a sub-contractor under Haryana State Minor Irrigation Tubewell Corporation- defendant No. 2 (hereinafter referred to as the Corporation). The original contract was awarded by the Haryana State Electricity Board, defendant No. 1 (hereinafter referred to as the Board) in favour of the Corporation. Corporation made available an electric connection in its name to the petitioner as sub contractor who under the contract was liable to pay the electricity bills Officials of the Board carried out surprise checking of the said electricity connection and the meter was found to be running slow. Board issued a bill showing sundry charges to the Corporation. Corporation allegedly adjusted the sundry charges from the bills of the petitioner. At the time of filing of the suit, Board had raised a demand of Rs. 1,60,000/-. Petitioner filed the suit alleging therein that Corporation was trying to recover this amount from the accounts of the petitioner. In all, it has been alleged that this demand of billing is illegal and arbitrary. Prayer made in the plaint was that Corporation be restrained from realising the amount of Rs. 1,60,000/- from the account of the petitioner and be permanently restrained from retaining the amount from the account of the petitioner. Further, the Corporation be also ordered by way of mandatory injunction to realise and credit the amount already received in excess from the petitioner. Suit was decreed as prayed for by the trial Court on 15.6.1992.
Board did not feel satisfied with the judgment and decree and filed an appeal, Petitioner also filed an appeal along with an application Under Section 5 of the Limitation Act, 1963. During the pendency of the appeal, petitioner filed on application for amendment of the plaint with an averment that it has come on the file that the defendant-respondents have succeeded in taking the amount of Rs. 1,85,263.35 illegally from the petitioner. Prayer made was for amendment of the plaint and converting the suit for rendition of accounts into a suit for recovery of Rs. 1,95,263.35. Permission was also sought to affix the requisite Court-fee on the amount claimed. Lower appellate Court dismissed the application for amendment holding that a suit for permanent injunction and mandatory injunction could not be legally converted into a suit for recovery of a specific amount in the given facts and circumstances of the case. Aggrieved against the aforesaid order, present revision petition has been filed.
2. The point whether a suit for rendition of accounts and recovery of amount found due in consequence can be permitted to be converted into a suit for recovery of specific amount was considered by this Court in Bishan Samp & Bros. and Anr. v. Smt. Tara Wanti alias Tara Devi and Anr., 1973 PLJ 741. It was held that such an amendment was permissible. It was held as under :-
"Where in a suit for rendition of accounts and recovery of amount found clue in consequence, amendment of the plaint was sought for conversion of the suit for recovery of a sum certain with interest till realisation, it was opposed on the ground that it would effect a change in the nature of the suit and would result in irreparable injury to the defendants because the suit for recovery or a sum certain if brought on the date of the application for amendment would be time barred, held, far from changing the nature of the suit, the amendment merely furnishes before the conclusion of the trial what it had asked the Court to ascertain by having recourse to rendition of accounts because the plaintiff was ignorant of the same. The cause of action remains precisely what it was before the amendment and no new or in consistent case is sought to be introduced by the plaintiff through the amendment. Even though, a suit brought when the application for amendment was made would be time-barred, the amendment cannot be disallowed on that ground"
Thereafter, the point was again considered by this Court in Hem Raj Sharma and Sons and Anr. v. Madan Lal Chaman Lal, (1990-2)98 P.L.R. 624. The view taken by this Court in M/s. Bishan Samp's case (supra) was reiterated. The point was considered for the third time in Foremost Diaries Limited and Ors. v. Banarsi Dass Amar Nath, (1992-1)101 P.L.R. 227 After exhaustive discussion, the view expressed in M/s. Bishan Sarup's case (supra) and M/s. Hem Raj Sharma's case (supra) was again reiterated.
3. Counsel appearing for the Corporation relying upon Chaubey Sushil Chandra v. Raj Bahadur, AIR 1977 Allahabad 259 (DB) and Aisha and Ors. v. State of Jammu and Kashmir, AIR 1978 J&K 34, argued that in a suit for rendition of accounts the plaint could not be permitted to be amended to claim instead specific amount as it would change the nature of the suit and such an-amendment should not be permitted specially when a valuable right has accrued to the other side of limitation. There is no force in this submission. Similar argument was raised in M/s. Hem Raj Sharma's case (supra) and the same was rejected. The view expressed by this Court in M/s. Bishan Samp's case (supra) was reiterated and the reasoning adopted in Chaubey Sushil Chandra's case (supra) and Aisha's case (supra) was not accepted. It is now well settled that wherever there is a conflict of views between different Courts then the view expressed by our own Court must be preferred. No other judgment was cited. Following the view taken by this Court in M/s. Bishan Samp's case (supra) and M/s. Foremost Diaries' case (supra) it is held that a suit for rendition of accounts can be permitted to be amended to a suit for recovery of specific sum on the facts and circumstances of each case.
4. In the present case, petitioner filed a suit for rendition of accounts with consequential relief by way of mandatory injunction to realise and credit the amount already received in excess from the petitioner. During the course of pendency of the suit, the amount was ascertained and thereafter petitioner filed an application for amendment of the plaint. There would be no change in the cause of action which would remain the same. Order 6 Rule 17 C.P.C. empowers the Court at any stage of the proceedings to allow either party to alter or amend pleadings as may be just for determining the real question in controversy between the parties. In the interest of justice and for determining the controversy between the parties, it would be just and proper if the petitioner is permitted to convert the same into a suit for specific amount on the same contents.
5. During the course of arguments, counsel appearing for the petitioner made a statement that no further evidence is to be led by the petitioner and the case can be decided on the evidence already recorded. Accordingly, this revision petition is accepted, the impugned order of the lower appellate Court is set aside and the amendment of the plaint as prayed for in the application under Order 6 Rule 17 C.P.C. is allowed. Board and Corporation shall be at liberty to file the written statement to the amended plaint. Parties shall not be permitted to lead any additional evidence and the lower appellate Court shall determine the controversy between the parties on the basis of the evidence already led. This amendment is allowed subject to payment of Rs. 500/- as costs which the petitioner shall tender before the first appellate Court on the-date fixed to be paid to the Corporation. Parties through their counsel are directed to appear before the first appellate Court on 16.5.1996.