Hitesh Gola v. Royal Bank of Scotland, India

8. It can be seen that vide the aforesaid order dated 20.09.2021, the Division Bench expressly reserved the right of the respondent therein (i.e., the plaintiff herein) to:-

(i) assail termination of services of the plaintiff; and

(ii) to pursue his claim for unpaid salary for the period till termination takes effect.

9. In the aftermath of the aforesaid order dated 20.09.2021 of the Division Bench, the services of the plaintiff were terminated vide communication dated 23.09.2021 (the ‘second termination’) issued by the defendant no. 1.

10. In terms of the observations of the Division Bench in its order dated 20.09.2021, the plaintiff filed the present I.A. 2227/2022 assailing the aforesaid termination(s) and also seeking to add/amend certain prayers in the original suit as under:- “(B) Pass a declaratory decree in favour of the Plaintiff and against Defendant NO. 1 holding the purported terminations dated 29.03.2019 and 23.09.2021 as void ab initio thereby reinstating the Plaintiff and direct payment of salary and other benefits as per the Defendant No. I's policies or in the alternate award damages to the Plaintiff and against the Defendant No. 1 in terms of para no.13 of the plaint. (BB) Pass a decree declaring Plaintiffs entitlement to payment of past, present and future medical expenses of the Plaintiff.”

11. With regard to the arrear/s of salary till 23.09.2021, the plaintiff in the first instance filed I.A. No. 14279/2021 which came to be dismissed vide order dated 25.04.2022 in the following terms:-

12. As is evident from the above, the reason for dismissal of I.A. NO. 14279/2021 was that there was no prayer for arrears of salary in the suit, and therefore, the prayer/s sought vide IA. No. 14279/2021 was found to be beyond the scope of the suit as originally filed. However, it is noteworthy that while dismissing I.A. No. 14279/2021, it was observed by this Court that the dismissal thereof would not “preclude the plaintiff from seeking the same or similar relief subsequently, under an appropriate provision, as may be permissible, in accordance with law.”

13. Pursuant to the above, the plaintiff filed the present I.A. No. 8358/2022 seeking further amendment to the suit. Vide the said I.A., the plaintiff seeks to add the following prayer to the suit: - “(BBB.) Direct the Defendant No. l to pay the Plaintiff unpaid salaries and consequential benefits for the period 29.03.2019 to 23.09.2021.”

14. It is stated by learned counsel for the plaintiff that I.A. No. 2227/2022 has been filed in exercise of the right expressly reserved by the Division Bench of this Court vide order dated 20.09.2021; I.A. No. 8358/2022 has been filed pursuant to the aforesaid observations of this Court vide order dated 25.04.2022. It is further submitted that these applications are occasioned by developments subsequent to the filing of the suit. It is further submitted that the amendments are necessary for effective and proper adjudication of the controversy between the parties, and that no prejudice shall be caused to the defendants if the amendments are allowed.

15. Per contra, learned counsel for the defendant no. 1 opposes the amendments and contends that the proposed amendments seek to introduce fresh facts which are beyond the scope of the original suit. It is further contended that the amendments entirely change the character and nature of the suit and introduce an entirely new cause of action. It is further submitted that the issue as to whether the termination of the plaintiff is wrongful or not is already the subject matter of consideration in I.A. No. 4962/2019, filed by the plaintiff under Order XXXIX Rule 2A of the CPC.

16. The defendant no. 2 has also filed a reply opposing these applications and has made contentions similar to the contentions advanced on behalf of the defendant no.1.

17. Having considered the averments made in these applications, and having heard learned counsel for the parties, I am inclined to allow these applications. The reasons are enumerated hereunder.

18. As noticed hereinabove, the order dated 20.09.2021 passed by a Division Bench of this Court in FAO(OS) 74/2019, expressly reserved the right of the plaintiff herein to assail the termination of his services and also to pursue his claim for unpaid salary till termination takes place. I.A. No. 2227/2022 is essentially in furtherance of the aforesaid direction of the Division Bench. Further, the amendment sought with regard to the claim for arrears of salary till 29.09.2021, which is the subject matter of I.A. 8358/2022, is essentially in furtherance of order dated 25.04.2022 of this court, in which it has been expressly stated that the plaintiff shall not be precluded from seeking such relief in accordance with law.

19. At the time when the suit was filed services of the plaintiff had not yet been terminated. The termination of the plaintiff and non-payment of salary from 29.03.2019 till 23.09.2021 are subsequent developments after the filing of the suit. Moreover, these claims cannot be said to be completely unconnected with the cause of action on the basis of which the original suit was filed.

20. The present suit has been occasioned on account of an accident which took place in the lift at the office premises of defendant no.1, which is stated to have resulted in a serious spinal injury to the plaintiff. By way of the instant suit, the plaintiff seeks to make certain financial claims against his employer, i.e., the defendant no. 1 on account of the aforesaid accident. The plaintiff cannot be expected to file multiple proceedings seeking adjudication of his different financial claims against the defendants arising out of the said accident. Allowing the amendments is, therefore, necessary for effective and proper adjudication of the controversy between the parties and to avoid multiplicity of proceedings. Also, it cannot be said that the amendments would completely change the nature of the suit.

21. In LIC v. Sanjeev Builders (P) Ltd.1, while considering the scope of Order VI Rule 17 CPC, it has been observed by the Supreme Court as under: -

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”

22. The tests laid down by the Supreme Court in LIC v. Sanjeev Builders (P) Ltd.,[2] are completely satisfied in the present case. In the facts of the present case, the amendments sought to be made are (i) in pursuance of the order dated 20.09.2021 of the Division Bench and the order dated 25.04.2022 of this Court as noticed hereinabove; (ii) have been filed at the pre-trial stage;

(iii) based on events that took place subsequent to the filing of the present suit;

(iv) do not set up an entirely new and inconsistent case; (v) necessary for

Supra note 1 effective and proper adjudication of the entire controversy between the parties; and (vi) will avoid multiplicity of proceedings.

23. It is notable that the Supreme Court has reiterated time and again that subsequent events, even at the appellate stage, can afford valid justification for amendment of pleadings/inclusion of fresh prayers. Also, amendment is permitted to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate. In this regard reference may be made to the observations of the Supreme Court in Rameshwar v. Jot Ram[3], as under: “9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson [Patterson v. State of Alabama, (1934) 294 US 600, 607] illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [1940 FCR 84: AIR 1941 FC 5] falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs — cannot deny rights — to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact Venkateswarlu, read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty [54 MLJ 88 (PC)] ). The law stated in Ramji Lal v. State of Punjab [AIR 1966 Punj 374: ILR (1966) 2 Punj 125] is sound: “Courts, do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. North Metropolitan Tramways Company [(1885) 16 QBD 178] ) and a fresh suit by him would be so barred by limitation.” One may as well add that while taking cautious judicial cognisance of “post-natal” events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis.”

24. It is further notable that the Supreme Court has gone to the extent of holding that there is no impediment in allowing a pre-trial amendment even if it seeks to introduce a new cause of action based on events that have transpired subsequent to the filing of the original suit. In this regard, reference may be made to the judgment of the Supreme Court in Sampath Kumar v. Ayyakannu[4], wherein it has been held as under: -

25. The contention of learned counsel for the defendant no.1 that the issue of wrongful termination is already a subject matter of consideration in I.A. 4962/2019 filed by the plaintiff under Order XXXIX Rule 2A CPC and that present applications are precluded/ not maintainable on account thereof, is also without any merit.

26. The issue involved for consideration in I.A. 4962/2019 is whether termination of the plaintiff’s services was in disobedience of the interim order dated 27.07.2018 passed by this Court. If it is found that there is any willful disobedience of the said interim order passed by this Court, appropriate orders shall be passed. However, the same has no bearing on the issue as to whether the plaintiff can seek amendment of the suit to assail the termination of his services.

27. Furthermore, these amendments have been sought at the pre-trial stage and the defendants would have ample opportunity to meet the case set up by the plaintiff.

28. In the written submissions filed on behalf of the defendant no.1 reliance has been placed on the following judgments: Asian Hotels (North) Ltd. v. Alok Kumar Lodha[5], A.K. Gupta and Sons Ltd. v. Damodar Valley Corpn.6, and Ma Shwe Mya v. Maung Mo Hnaung[7]. There is no quarrel with the well settled proposition of law laid in the said decisions that a distinct cause of action cannot be altogether substituted nor can a cause of action be allowed to

(1966) 1 SCR 796 AIR 1922 PC 249 be added in the plaint which completely changes the nature of suit; however, in view of the preceding discussion, the said decisions are not applicable to the facts of the present case.

29. In view of the aforesaid, the present applications are allowed.

SACHIN DATTA, J. MARCH 02, 2023