Counsel for Petitioner :- Manish Kumar Srivastava,Om Hari Tripathi Counsel for Respondent :- Pankaj Srivastava,Jagdish Prasad Maurya Hon'ble Anil Kumar,J.
Heard Shri M. K. Srivastava, learned counsel for the petitioner, Shri J. P. Maurya, learned counsel for the respondents and perused the record.
Undisputed facts of the present case are that on 19.05.2009, petitioners filed a claim petition under Section 124-A of Railways Act, 1989 on the ground that Shri Rakesh Kumar, resident of Village-Ramapur Post-Kohadur, Police Station-Kohdaur, District-Pratapgarh (U.P.) on 24.06.2007, travelling from Sultanpur to Allahabad by train No.1067 -U.P. Saket Express, accidentally fell down from the said train at Kohndaur Railway Station due to jerk, jolt and pressure of passengers as a result thereof, he sustained grievous injuries and died on the spot due to ante-mortem injuries sustained by him, registered as O.A. No.II/u/355/09.
On 13.07.2009, respondent filed a written statement denying the allegation as made by claimants-petitioners in claim petition and also taken a plea/ground that the case of the applicants is not covered by the definition of "untoward incident" as provided under Railway Claims Tribunal, so the same is liable to be dismissed.
On 09.07.2011, petitioners moved an application for amendment of the claim petition with the prayer that the due to typographical error in paragraph nos.6 and 7-A of the claim petition, it has been wrongly typed that the deceased person was going for Allahabad for his medical checkup on 24.06.2007 by train No.1067 -U.P. Saket Express whereas it should be mentioned that "the deceased person was returning from Allahabad to Sultanpur after his medical checkup on 24.06.2007 by train No.1067 -U.P. Saket Express."
Amendment as sought opposed by the respondents on the ground that same changed in the entire cause of action/nature on which the claim petition has been filed as well as barred by statutory period of limitation.
The Railway Claims Tribunal, by order dated 09.01.2012, rejected the amendment as sought by the claimant with the following observations :-
"The object of this rule is that the Courts shouldtry the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other party."
I have heard learned counsel for the parties and gone through the records.
The object of Order 6, Rule 17 primarily is that if because of certain facts not being pleaded or because of deficiencies in the pleadings, the question involved between the parties cannot be finally determined and unless it is finally determined, there is likelihood of multiplicity of proceedings. Order 6, Rule 17 empowers the Court to permit such amendments which are necessary for final determination of the issues in dispute or real point in dispute between the parties. Expression "new case" has been the subject matter of discussion and that expression has been defined to mean a new claim based on altogether new facts and new ideas. New case does not mean and include in itself where there is an additional approach to the same facts already in the pleadings as an alternative approach. So, in the context of the amendment application, an additional approach to same facts cannot amount to making out a new case.
The principles established by judicial decisions in respect of amendment of plaint are : (i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit; (ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible; (iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment; (iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs; and (v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is out-weighed by the special circumstances of the case.
Amendment can be refused in the following circumstances : (i) where it is not necessary for the purpose of determining the real question in controversy between the parties; (ii) where the plaintiff's suit would be wholly displaced by the proposed amendment; (iii) where the effect of amendment would take away from the defendant a legal right which has accrued to him by lapse of time; (iv) where the amendment would introduce totally different, new and inconsistent case and the application is made at a late stage to the proceeding; and (v) where the application for amendment is not made in good faith.
Accordingly, in brief, it can be held that all amendments should be allowed which satisfy the conditions (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real question in controversy between the parties. They should be refused only when the other party cannot be placed in the same position as if the pleading had originally been correct but the amendment would cause him an injury which cannot be compensated by costs.
However, under the cover of seeking amendment it is not open to any party to substitute a new cause of action or to change the nature of the suit or to substitute the subject-matter of the suit except when the Court thinks it just and necessary. (See Ganeshi Rai v. Ist Additional District Judge A.I.R. 1992 All.25) and no amendment of plaint can be allowed if because of lapse of time some right has vested in the other party and the effect of allowing amendment would tantamount to the taking away of that right. Allowing such amendment cannot be compensated for by costs.
In the instant matter, as per undisputed facts, the claim petition has been filed by the claimant on 19.05.2009 with the cause of action that the deceased (Rakesh Kumar) was travelling from Sultanpur to Allahabad on 24.06.2007 by train No.1067 -U.P. Saket Express and due to accident, he died at Kohndaur Railway Station. Subsequently, the application has been moved for amendment with the prayer that the deceased person was returning from Allahabad to Sultanpur after his medical checkup on 24.06.2007 by train No.1067 -U.P. Saket Express. Thus, a new cause of action is sought to be incorporated by way of amendment in the claim petition which can not be allowed.
As in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others (2009) 10 SCC 84, Hon'ble the Apex Court has observed as under:
The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.
(i) At what stage the amendment was sought?
(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage;
(iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic;
(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while awarding the costs.
The purpose of imposing costs is to:
(a) Discourage malafide amendments designed to delay the legal proceedings;
(b) Compensate the other party for the delay and the inconvenience caused;
(c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) To send a clear message that the parties have to be careful while drafting the original pleadings.
On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
Further, in the present case, the claim petition was filed on 19.05.2009 and an application for amendment was moved on 09.07.2011. So, the same cannot be allowed on the ground of limitation in view of the provisions as provided under Section 17 (1) (b) of the Railway Claims Tribunal Act, 1987 because Hon'ble the Apex Court in the case of Voltas Limited vs. Rolta India Limited (2014) 4 SCC 516 held as under :-
"Paragraph no.30-In Revajeetu Builders and Developers v. Narayanaswamy and Sons (2009) 10 SCC 84 while laying down some basic principles for considering the amendment, the Court has stated that as a general rule the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."
Thus, keeping in view the above said facts as well as finding given by Railway Claims Tribunal while rejecting the petitioners application for amendment, I do not find any illegality or infirmity in the impugned order under challenge in the writ petition.
In the result, writ petition lacks merit and is, accordingly, dismissed.
Order Date :- 21.05.2014 Mahesh