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Civil Petition for Special Leave to Appeal No. K‑54 of 1973, decided on 10th September 1973.
(From the judgment and order, dated 12‑2‑1973, passed by the High Court of Sind & Baluchistan, Karachi, in Suit No. 334 of 1972).
‑‑--O. VI, r. 17 & O. II, r. 2‑Amendment of plaint‑Carriage of goods by sea‑Ship reported lost or damaged due to enemy action Claim for damages on ground that despite knowledge of hostilities between two countries carrier had undertaken liability to deliver goods safely at destination‑Before filing of written state ment by defendant amendment sought that "vessel was unworthy in that she was not properly equipped for contemplated voyage" and amendment allowed‑Objection before Supreme Court that amend ment introduced entirely new cause of action and virtually changed nature of suit‑New plea unless allowed would be barred under O. 11. r, 2‑Court always inclined to bring all points between parties before it so as to avoid multiplicity of proceedings‑Amendment held rightly allowed.
Saleem Akhtar, Advocate Supreme Court instructed by Abdul Azia Dastagir, Advocate‑on‑Record for Petitioner.
Ahmadullah Farooqi, Advocate‑on‑Record for Respondents.
Date of hearing: 10th September 1973.
This petition for special leave arises out of the order of a learned Single Judge of the High Court of Sind & Baluchistan, Karachi, dated 12th February 1973, whereby he allowed an application by respondent No. 1, for the amendment of plaint allowing it to raise additional plea in the plaint.
2. Respondent No. 1 herein brought a suit in the High Court for the recovery of Rs. 2,94,000 in respect of loss of three consignments of goods shipped as per s.s. Makran' owned by the petitioner for carriage from Chittagong to Khulna, in East Pakistan, under three Bills of Lading. The goods were not delivered at destination and the ship is reported to have been lost or damaged by enemy action. The goods were insured with respondent No. 2 for the same amount, and therefore, the decree was claimed jointly against the petitioner and respondent No. 2.
3. The plaint as originally filed alleged that at the relevant time disturbed conditions prevailed in East Pakistan and there were widespread activities in the nature of civil war and hostilities between India and Pakistan were in "progress" which the petitioner herein could clearly foresee and expect, but nevertheless, it undertook the safe carriage and delivery of three consignments at the destination and that in these circum stances the petitioner was liable to make good the loss so caused.
4. Subsequently, but before filing of written statement by the petitioner, respondent No. 1 applied under Order VI, rule 17, C. P. C. for leave to insert the following additional plea in paragraph 6 of the plaint, namely:
"And also the vessel was unworthy in that she was not properly equipped for the contemplated voyage in such a situation."
5. The application for amendment was opposed by the petitioner on the ground that it introduced an entirely new cause of action which virtually altered the nature of the suit. The learned Single Judge overruled the objection for, in his view, the proposed amendment neither altered the nature of the suit, nor raised any new cause of action.
6. Learned counsel for the petitioner repeated the argument which was repelled by the learned Single Judge by the impugned order. It is difficult to see how the nature of the suit will be altered by the new plea. It cannot beg gainsaid that unless respondent No. 1 is allowed to raise this plea, his subsequent suit on the new plea would be barred under Order II, rule 2, C.P.C.. The application for amendment has been made at the earliest stage when the petitioner and respondent No. 2 had not even filed their written statements. The Courts have always inclined to allow leave liberally to enable the parties to bring all points relating to a dispute between the parties before the Court so as to avoid multiplicity of proceedings. We, therefore, find no force in this petition which is hereby dismissed. Needless to say that respondent No. 1 will be at liberty to take any plea that might be available to it to oppose the claim of the respondent No. 1.
Leave refused.
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