In Civil Appeal No.5909 of 2022-SC- Order II Rule 2 CPC operates as bar against subsequent suit if requisite conditions for application thereof are satisfied and field of amendment of pleadings falls far beyond its purview; Such bar cannot apply to amendment which is sought on existing suit: SC
Justices Aniruddha Bose & J.B. Pardiwala [01-09-2022]

Read Order: LIFE INSURANCE CORPORATION OF INDIA v. SANJEEV BUILDERS PRIVATE LIMITED & ANR 

Mansimran Kaur

New Delhi, September 3, 2022: The Supreme Court has reaffirmed that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It  is always open to the court to allow an amendment if it is of the view that allowing an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation.

It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury, observes Top Court 

A Division bench of Justice Aniruddha Bose and Justice J.B. Pardiwala dismissed the instant  appeal which  was instituted   at the instance of  the defendant in a suit filed by the respondents  for the specific performance of contract based on an agreement and  was  directed against the judgment and order passed by the High Court of Judicature at Bombay dated December 13, 2018 passed in the Appeal  of 2018, arising from the order passed by a Single Judge on its ordinary original civil jurisdiction side in the Chamber Summons  of 2017 in the Suit  of 1986 dated September 11, 1986.  

The bench was of the considered view that it should not intervene with the impugned order passed by the Division Bench of the High Court, affirming the order passed by the Single Judge allowing the amendment application filed at the instance of the plaintiffs.

The Chamber Summons was allowed by the High Court at the instance of the plaintiffs, permitting the plaintiffs to amend the plaint. The order passed by the High Court in the Chamber Summons came to be affirmed by a Division Bench in the  appeal of 2018. The High Court permitted the plaintiffs to amend the plaint, seeking to enhance the amount towards the alternative claim for damages.

The Single Judge of the High Court allowed the chamber summons referred to above, through the order dated September 11, 2018 keeping the issue of limitation open and also permitting the defendant, appellant herein, to file an additional written statements

The appellant preferred an appeal against the said order which came to be dismissed through  the impugned order dated December 13, 2918. 

Being aggrieved and dissatisfied with the impugned order passed by the High Court referred to above, the appellant (original defendant) was before this Court with the present appeal.

After hearing the rival contentions of the parties, the Court noted that it is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. 

Reliance was placed on the cases namely,   L.J. Leach & Co. Ltd. & Anr. v. Jardine Skinner & Coand  T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board & Ors. In furtherance of the same, the Court also placed reliance on the case of Ganga Bai v. Vijay Kumar & Ors, in order to emphasize on the fact  that the power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, notwithstanding the law of limitation. 

However, undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of the statutory period of limitation, the Court noted. 

In the present appeal, the principal argument of the counsel appearing for the appellant was  that the amendment application should have been rejected by the courts below applying the principle of Order II Rule 2 of the CPC,the Court noted. 

Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.In pursuance of the same, the Court was  of the view that if the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order II Rule 2 of the CPC. 

However, the Court failed to find any merit in the contention raised on behalf of the appellant herein that the amendment application was liable to be rejected by applying the bar under Order II Rule 2 of the CPC.

Order II Rule 2 of the CPC cannot apply to an amendment which is sought on an existing suit, the Court remarked. 

Further, the provisions of Specific Relief Act, 1963 were also taken into consideration. 

In view of the findings stated above, the Court noted that Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. 

The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word shall, in the latter part of Order VI Rule 17 of the CPC, the Court noted. 

In the overall view of the matter, the Court was convinced that it should not intervene with the impugned order passed by the Division Bench of the High Court, affirming the order passed by the Single Judge allowing the amendment application filed at the instance of the plaintiffs.

Consequently, the appeal failed and was thus dismissed .