Shanti Kumar R. Canji v. the Home Insurance Co. of New York

RAY, C. J.-This is an appeal by certificate from the judgment dated 29th March, 1971 of the High Court of Bombay. The appellant filed this suit on 2 September, 1964 in the High Court of Bombay and claimed six months salary in lieu of notice and gratuity for 16 years of service. Jn the year 1965 the appellant asked for discovery by the respon­ dent of documents relating to pension scheme for foreign employees. The application for discovery was dismissed in the month of November, 1965. On 16 December, 1969theappellant took out a Chamber Summons for ammdment of the plaint. The proposed amendments were two­ fold. The first set of amendment related to averments in support of the claim for gratuity which had already been alleged in the plaint. ll .. t c .D 1 ff SHANTI 1UMAR V. HOME INSURANCE CO. (Ray, C.J.) 553 The second set of amendment related to averments in support of a claim for Rs. 850 per month by way of pension as and from 1 February, 1964 during the life time of the appellant. By an order dated 19 January, 1970 the appellant was allowed to amend the plaint in respect of the claim for gratuity. The appellant's proposed amendment in support of the claim for pension was refused. By summons dated 27 April, 1970 the appellant sought an amend· ment of the plaint claiming Rs. 68,000 as damages in relation tc his right to pension. By an order dated 6 July, 1970 the appellant was allowed to amend the plaint as prayed for. The respondent preferred an appeal against the order dated 6 July, 1970. The High Court by judgment dated 29 March, 1971 allowed the appeal and set aside the order dated 6 July, 1970 allowing the amend­ ment. The appellant repeated the contentions which had been advanced before the High Court. first, it was said that no appeal could lie against an order of amendment because it was not a judgment within the meaning of clause 15 of the Letters Patent. Secondly, it was said that an order allowing the amendment was a discretionarv order. Therefore, the appellate court should not have interfered ,;·ith the discretion. Counsel for the appellant submitted that 'judgment' means a decision finally adjudicating the rights between the parties. It was emphasised that a judgment would be a decision on substantive rights of parties. 'Amendment' was submitted to be a procedural right. Counsel for the appellant relied on the decision in Dayabhai v. Murru­ gaPpa Chettiar I. L. R. 13 Rang. 457 and Manohar v. Baliram · I.L.R. 1952 Nag. 471 in support of the proposition that 'judgment' means and is a decree in a suit by which the rights of the parties in the suit are determined. The locus classicus is the decision of the High Court of Calcuta in Justice oft he Peace for Calcutta v. Oriental Gas Company 8 Bengal L.R. 433 where Sir Richard Couch, C. J. said "We think tj:Jat 'judgment' means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a prelimi­ nary or interlocutory judgment determines only a part of it, leaving other matters to be determined." This Court in Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors • [1953) S.C.R. 1159 dealt with the question as to whether an order of transfer of a suit filed in the Jalpaiguri Court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction was a judgment within the meaning of clause 15 of the Letters Patent. It was held that an order for transfer of a suit is not a judgment within the meaning of clause 15 of the Letters Patent as it neither affects the merits of the controversy between the parties in the suit itself nor terminates or d}sposes of the suit on any ground. This Court in Asrumati Debi's case (supra) said that a judgment within the meaning of clause 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be the final pronounce­ ment which puts an end to the proceeding so far as the court dealing with it is concerned. Second, the judgment must involve the deter­ mination of some right or liability though it may not be necessary that there must be a decision on the merits. In this context this Court referred to observation of the Full Bench of the High Court of Madras in Tu/j«ram v. A/agappa I.L.R. 35 Mad. I. The test formulated by the Madras decision is not the form of the adjudication but its effect on the suit or proceeding in which it is made. The Madras Hight Court said "if the effect is to put an end to the suit or proceeding so far as the Clurt before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, the adjudication is a judgment". It may be stated here that the Madras High Court spoke of 'judgment' on an application in a suit. The decision of the Madras High Court in Tuljaram' s case (supra) was on an order for transfer of a suit under clause 13 of the Letters Patent. This Court also noticed the view expressed by the Madras High Court in Tuljaram's case (supra) that adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning o.f the Letters Patent. In Asrumati Debi's case (supra) this Court noticed the argument advanced that if an order refusing to rescind leave to sue granted under E clause 12 of the Letters Patent was a 'judgment' under clause 15 of the Letters Patent there was no difference in principle between an order of th1t description and an order transferring the smt under clause 13 of the Letters Patent. This Court did not express any opinion excepting observing that if leave under clause 12 of the Letters Patent was res­ cinded, the suit would c:ome to an end and if an order was made refusing to rescind the leave the result would be on a vital point adverse to the F defendant and it would go to the root of the suit and become final and decisive against the defendant so far as the Court making the order was concerned. In finding out whether any decision is a judgment within the meaning of clause 15 of the Letters Patent each case must be looked into in order to find out as to whether thereiso decision determining the right or liability of the parties affecting the merits of the controversy between the parties. It is in that light that this Court in Asrumati Dibi's case (supra) described the order refusing to rescind leave to bo within the category of a judgment as laid down in the Calcutta cases though no final opinion was expressed as to the propriety of that view. Th! present appeal concerns an application for amendment of the H plaint. The suit was filed in the year 1964. The application for am!ildm!nt of the plaint in regard to damages for the right to pension was made in the y~ar 1970. An amendment, if allowed, would relate II SHANTI KUMAR v. Hop.rn INSURANCE co. (RllJ', C.J.) 555 to the date of the institution of the suit. The respondent contended before the trial Court entertaining the application fer amendment of the plaint that the amendment should not be alkwed inter alia on the ground that the alleged claim was barred by limitation in 1970. The High Court in the present case relied on the decidon of the High Court at Calcutta in M.B. Sarkar & Sons v. Powell & Cc. A.LR. 1956 Cal. 630. In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant converted into a cc mpany in that name. The company so proposed to be substituted cc mplained that the amendment took away from it a valuable right which had accrued to it by efilux of time, and, therefore, the amendment shculd not be allowed. The contention of the defendant was not accepted by the learned Chamber Judge. The High Court on appeal set aside the or· der. It was not held to be a case of mis-description of the defendant. A mis-description of a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis-description in the cause title. In such a case, it wculd not be ad­ ding a new party or substituting a new party for the origim 1 one, but perfecting the identity of the party originally impleaded clearing or rectif}ing the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis-descripticn. Where a new It gal entity is substituted, it was held in the M. B. Sirkar case (supra) that substitution of a company for a firm would be a change of a sub­ stantial character affecting the right of a party. The e!fr ct of the amendment in the Af. B. Sirkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limita tion that a suit brought on the date of the amendment would be bar­ red by time. Chakravartti, C.J. in the M. B.- Sirkar case (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent. The right to claim that an introduction of a cause of action by am­ endment is barred by limitation is founded on immunity from a lia­ bility. A right is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conftTred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The cor­ relative of immunity is disability. Disability mef!ns the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limi­ tation immunity from any liability. The views of the High Courts at Calcutta and Madras with regard to th' meaning of 'judgment' are with respect preferred to the mran­ ing of 'judgment' given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case (supra) as to when an order on an application for amendment can become a judgment within the mean· ing of clause I 5 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground ofreliefall that happens is that it is possible ror the plaintiff to raise further contentions in the suit, bnt it is not decided whether the contentions are right. Such an amendment does nothing m>re than regulate the procedure applicable to the suit. Il does not decide any question which touches tne merits of the controversy bet- ween the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Petcnt. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned. In finding out whether the order is a judgment within the meauing of clause I 5 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. :rhe right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a dermination of any right or liability. The appellant made an application in December, 1969 for amend­ ment of the plaint to claim pension. Those amendments were disal­ lowed by the learned Chamber Judge. Four months thereafter the appellant sought to amend the plaint by adding certain paragraphs E and those amendments were in relation to the appellant's alleged claim for pension. The appellant submitted that the second application for amendment in regard rn the cial)n for amortised amount of damages in relation to pension was not the same as the first appli­ cation. It was said on behalf of the appellant that if the learned Judge allowed the application the appeilate court should not have inter- fored with the discretionary order. The amendment order is not pure- F ly of discretion. Even with regard to discretionary orders the appel- late court can interfere where the order is insupportable in law or is unjust. The High Cou°rt considered the second application for amend­ ment to be a new claim based on the new set of facts which becnme barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defondant a legal right which has accrued to him by laps~ of G time, because the court found that consideration of lapse of ttme is out weighed by the special circumstan.ces of the. case. (See Charan Das v. Amir Khan 47 I.A. 255). The High Court nghtly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim. For these reasons, the judgment of the High Court is upheld. H The appeal is dismissed with costs. V.P.S. Appeal dismissed.