# A. K. GUPTA AND SONS v. DAMODAR VALLEY CORPORATION - **Citation:** [1966] 1 S.C.R. 796 - **Court:** Supreme Court of India - **Decided:** 1965-09-10 - **Bench:** A. K. Sarkar, RAGllUBAR DAYAL, V. Ramaswami - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-k-gupta-and-sons-v-damodar-valley-corporation-3625 - **Pages:** 21 ## Headnote Code of Civil Procedure (Act V of 1908), s. 153 0. 2 r. 2 and O. 6, r. 17-Amendment of plaint-When may be allowed. The appellant filed a suit against the respondent claiming a declaration that, on a proper interpretation of one of the clauses of the contract ' between them, the appellant was enti!led to an enhancement of 20% over the tendered raies. '!be plain! stated, that work had been dono o_nder the contract and that the value of the suit for purposes of jurisdiction was Rs. 65,000, but as it was a suit for a decJara1ion only, coun fees on that basis had been paid. The appellant also reserved the right to sue later for the amount found due. The re9pondent contested the suit on the ground 1hat the suit was no: maintainahl·~ in the form in which it was framed, and disputing the correctness of the interpretation of the clause suggested by the appellant stated that it was ever ready and willing and was still willing to pay the legitimate dues of the appellant. The issue regarding maintainabili.ty of lhe suit was not pressed by the respondent at the hearing; and the other issue regardin~ the interpretation of the clause of 1he contract having been decided by the trial court in favour of the appellant, the suit was decreed and leave waa gran:ed undc' 0. 2. r. 2, Civil Proc-,dure Code, 1908, to me later for the amount due. On appeal the issue as to rnain1ainability was rcsu~ cita!ed and 1he High <:ourr decided it in the respondent's favour because of the proviso to s. 42 of the Specific Relief Act, 1877, and also held that the trial court was not righ: in granting l·>avc under 0. 2, r. 2. The High Court rejected a petition for amending 1he pl:iint hy including a prayer for a decree for Rs. 65.000 or such other amount as may he found due on proper accounl being taken then made by the appellant on the ground rhat the claim for money was time-barred long before the petition for amendment 1,1,·as made and because 1here w..!re no special circums1ancc.s justifying the graat of the am~11dment. HfLD: (Per Sarkar and Ramaswami. JJ.) (i) If there wa. any case \vhcre lhe respondenl was not entitled to the hcncfit of the law of limitation, the instant case was that one. It was a case in which the claim for money was in substance in the plain! from the beginning though it had not formally b·,en made and so the respondent could not legitimately claim that the amendment would prejudicially affect his right under the law of limitation, for really he had no such right. (801 A-CJ A party is not allowed to set up a new case or a new causr. of action by amendment. but it is well recognised that 1,1,·here the amendment doea not constitute the addition of a new cause of action or r;iise a new caSC", but amounts to no more than a different or additional approach to the facts alrcadv on the record, the amendment will be allowed even after the Mpiry of 1he statutory period of limitation. The expression "ne;y cause of actio11." in this context means, a new claim made on a new basis eooatituted bv new facts, and "new case" means a new set of iCc:ts. 1799 F-H; 800 B-DJ The amendment was necessary for a decision of the real dispute between the partie~ which wa~ : what were their rights und~r the contrD.ct; and that dispute was clearly involved in the plaint as originally framed. A \. B c D E F G H A B c , D E F G I H A. K. GUPTA V. D. V. C. 797 It was the contract which formed the cause of action on which the 1uit was based and the amendment sought to introduce a claim based on the same cause of action, that is, the same contract and introduced no new case or facts. Indeed, the facts on which the money claim sought to be added was based, were not in dispute, and the absence of details of work was not a legitimate ground for refusing the amendment. The respondent had notice of the amount of claim, was fuJly aware that the ultimato object of the appellant in filing the suit was to obtain payment of that amount, and had specifically expressed in the written st ## Text _Characters 0–39,865 of 53,812. This is a partial read: ask again with offset=39865 for what follows._ A. K. GUPTA AND SONS v. DAMODAR VALLEY CORPORATION September 10, 1965 (A. K. SARKAR, RAGllUBAR DAYAL AND V. RAMASWAMI, JJ.) Code of Civil Procedure (Act V of 1908), s. 153 0. 2 r. 2 and O. 6, r. 17-Amendment of plaint-When may be allowed. The appellant filed a suit against the respondent claiming a declaration that, on a proper interpretation of one of the clauses of the contract ' between them, the appellant was enti!led to an enhancement of 20% over the tendered raies. '!be plain! stated, that work had been dono o_nder the contract and that the value of the suit for purposes of jurisdiction was Rs. 65,000, but as it was a suit for a decJara1ion only, coun fees on that basis had been paid. The appellant also reserved the right to sue later for the amount found due. The re9pondent contested the suit on the ground 1hat the suit was no: maintainahl·~ in the form in which it was framed, and disputing the correctness of the interpretation of the clause suggested by the appellant stated that it was ever ready and willing and was still willing to pay the legitimate dues of the appellant. The issue regarding maintainabili.ty of lhe suit was not pressed by the respondent at the hearing; and the other issue regardin~ the interpretation of the clause of 1he contract having been decided by the trial court in favour of the appellant, the suit was decreed and leave waa gran:ed undc' 0. 2. r. 2, Civil Proc-,dure Code, 1908, to me later for the amount due. On appeal the issue as to rnain1ainability was rcsu~ cita!ed and 1he High <:ourr decided it in the respondent's favour because of the proviso to s. 42 of the Specific Relief Act, 1877, and also held that the trial court was not righ: in granting l·>avc under 0. 2, r. 2. The High Court rejected a petition for amending 1he pl:iint hy including a prayer for a decree for Rs. 65.000 or such other amount as may he found due on proper accounl being taken then made by the appellant on the ground rhat the claim for money was time-barred long before the petition for amendment 1,1,·as made and because 1here w..!re no special circums1ancc.s justifying the graat of the am~11dment. HfLD: (Per Sarkar and Ramaswami. JJ.) (i) If there wa. any case \vhcre lhe respondenl was not entitled to the hcncfit of the law of limitation, the instant case was that one. It was a case in which the claim for money was in substance in the plain! from the beginning though it had not formally b·,en made and so the respondent could not legitimately claim that the amendment would prejudicially affect his right under the law of limitation, for really he had no such right. (801 A-CJ A party is not allowed to set up a new case or a new causr. of action by amendment. but it is well recognised that 1,1,·here the amendment doea not constitute the addition of a new cause of action or r;iise a new caSC", but amounts to no more than a different or additional approach to the facts alrcadv on the record, the amendment will be allowed even after the Mpiry of 1he statutory period of limitation. The expression "ne;y cause of actio11." in this context means, a new claim made on a new basis eooatituted bv new facts, and "new case" means a new set of iCc:ts. 1799 F-H; 800 B-DJ The amendment was necessary for a decision of the real dispute between the partie~ which wa~ : what were their rights und~r the contrD.ct; and that dispute was clearly involved in the plaint as originally framed. A \. B c D E F G H A B c , D E F G I H A. K. GUPTA V. D. V. C. 797 It was the contract which formed the cause of action on which the 1uit was based and the amendment sought to introduce a claim based on the same cause of action, that is, the same contract and introduced no new case or facts. Indeed, the facts on which the money claim sought to be added was based, were not in dispute, and the absence of details of work was not a legitimate ground for refusing the amendment. The respondent had notice of the amount of claim, was fuJly aware that the ultimato object of the appellant in filing the suit was to obtain payment of that amount, and had specifically expressed in the written statement, its willingness to pay the appellant's legitimate dues. [800 F-H; 802 C, D-EJ ]. T. Leash & Co. v. Jardine Skinner & Co. [1957] S.C.R. 438; Pirgortda Hongonda Patil v. Ka/gonda Shidgonda Patil, [1957] S.C.R. 595. Charan Das v. Amin Khan, L.R. 47 I.A. 255, applied. Per Raghubar Dayal, J. (Dissenting) : An amondment which would enable a plaintiff to make a claim which has become time barred is as a rule to be refused and the Court would exercise its special power to allow such amendment only when there are special circumstances in the case. Such special circumstances can be said to exist only when the amended claim was at least intended to be made by the plaimi!I who had given in the plaint all the necessary facts to establish the claim but had, due to clumsy drafting, not been able to express himself clearly in the plaint and to couch his relief in the proper legal form. Such circumstances justify an amendment not really as a judicial concession to the plaintiff to save him from any possible loss but on the ground that the original claim in the plaint, though defe.ctively stated, really amounted to the claim sought to be made by the amendmerrt, so that, it does not in reality offend against the law of limitation but serves the interests of justice. [813 H; 814 A-CJ The plaint gave none of the facts which were necessary for getting a decree for Rs. 65,000 or which might justify a decree for accounting. To allow the amendment of the plaint would necessarily lead tu a further request for furnishing details about the work the plaintiff. When the plaintiff could -not get the relief of the amended claim on the facts mentioned in the plaint as originally filed, the cause of action for a decree for Rs. 65,000 was different from the cause of action on which the suit for declaration was founded. It could not be said that the plaintiff intended to sue the defendant for the recovery of Rs. 65,000 but failed to express himself clearly in the plaint and that therefore he should be allowed to make the plaint precise and clear in that regard. The fact that he re,erved his right to sue for the amount indicates that he did not intend to sue for the amount; and the fact that the trial court gave him laive to sue later does not justify the amendment, because, leave can be given by the court under 0. 2, r. 2 only when the plaintiff omitted to sue for a certain relief arising out of the same cause of action. [814 G; 815 B-D, F, G-H; 816 A-BJ (ii) Per Raghubar Dayal, J : The High Court was not in error in allowing the respondent to raise the objection as to the maintainability of the suit on account of the appellant not asking for further relief. [806 CJ It was incumbent on the trial court not to make a declaration unless further relief had been prayed for even if the objection was not raised by the party. Further, it could not be said that the objection was not raised by the respondent in the trial court merely becauser it did not press the contention. [805 H; 806 A-Bl 7118 SUPREME COURT REPORTS (1966] l S.C.R. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 18 of A 1963. Appeal from the judgment and decree, dated January 19, 1961 of the Patna High Court in Appeal from Original Decree No. 253 of 1955. Niren De, Additional Solicitor-General and D. N. Mukherjee B for the appellants. Kanhaiyaji and S. P. Varma, for the respondent. The Judgment of SARKAR and RAMASWAMI JJ. was delivered by SARKAR J. RAGHUBAR DAYAL, J. delivered a dissenting c Opinion. Sarkar, J. The question raised in this appeal is whether the High Court was in error in refusing permission to the appellant to amend its plaint. We think it was. The appellant had done work for the respondent under a D contract which only specified the rates for different categories of work. The contract contained the following clause : "This quotation is based on prevailing labour rate of Rs. 1-4-0 per cooly but if there is increase of labour rate of more than 10% in any particular month, the proportionate increase in rate will be charged". Subsequent to the making of the contract there E was an increase in the labour rate per cooly by 20%. The appellant claimed that under the clause it was entitled to the whole amount of the increase while the respondent coniended that it was entitled to a part of it only. This was the only dispute between the parties in respect of the contract. There was no F other dispute either concerning the quantity or quality of the work done or otherwise howsoever. The appellant filed a suit against the respondent only claiming a declaration that on a proper interpretation of the clause it was entitled to an enhancement of 20% over the tendered rates as the sole difference between the parties was about the interG pretation. The plaint stated that work had been done under the contract and that the value of the suit for purposes of jurisdiction was Rs. 65,000, but as it was a suit for a declaration only court fees on that basis had been paid. The respondent in its written statement challenged the appellant's interpretation of the clause but did not dispute any material fact or that the only dis11 putc was about the interpretation. The written statement concluded by saying that the respondent "was ever ready and wilting ' , • - - • • - • • A. K. GUPTA v. D. v. c. (Sarkar, J.) 799 A and is still ready and willing to pay the legitimate dues to the plaintiff." c D Before the learned trial Judge several issues were raised but it is necessary to mention only two. One issue was as to the maintainability of the suit in the form in which it had been framed and the other issue was as to the proper interpretation of the clause. The first of these issues was not pressed at the hearing. The other issue having been decided by the trial Court in favour of the appellant, the suit was decreed. The other issues which had been raised, had also not been pressed. The Court had further given the appellant leave under 0. 2 r. 2 of the Code of Civil Procedure to sue later for the amount due under the contract. The respondent then went up in appeal to the High Court at Patna. There the issue as to the maintainability of the suit was resuscitated and pressed and it was decided in the respondent's favour because of the terms of the proviso to s. 42 of the Specific Relief Act, 1877. The correctness of this view is not challenged in this Court. In the result the High Court dismissed the suit. ' Now, the appellant had in view of the High Court's decision as to the maintainability of the suit, sought its leave to amend the plaint by adding an extra relief in the following words : "That E a decree for Rs. 65,000 or such oth.~r amount which may be found due on proper account being taken may be passed in favour of the plaintiff against the defendant". The amendment having been refused the present appeal has been preferred. F G H It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale.(') But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutorv period of limitation : see Charan Das v. Amir Khan(' I and L. J. Leach & Company Ltd. v. Jardine Skinner and Co.(8 ) The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to {I) 19 Q.B.D. 394. (l) L.R. 47 I.A. 255. (3) [1957] S.C.R. 438. 800 SUPREME COURT REPORTS [1966] I S.C.R. decide the rights of the parties and not to punish them for their A mistakes (Cropper v. Smith)(') and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba(') approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil('). The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle B the plaintiff to succeed" as was said in Cooke v. Gill(') in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change C or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd.(') and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been underD stood to mean "new set of ideas" : Doman v. J. W. Ellis & Co. Ltd.('). This also seems to us to be a reasonab:e view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired hy any party by lapse of time. Now, how does the present case stand on these principles 1 Does the amendment introduce a new cause of action or a new case 1 We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the F suit wa~ based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case or facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the G purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifyin~ the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be H (I} (t 884) 26 Ch. D. 700,710-t (3) (1957] S.C.R. 595, 603 (5) (1962] 2 All E.R. 24. (2) (t909) I.L.R. 33 Born. 644, 651. (4) (!873) L.R. 8 C. P. !07, 1!6 (6) (19621 f Alf E.R. 303. • • • • • • .. A B c D A. K. GUPTA v. D. v. c. (Sarkar, I.) 801 due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had Jed the appellant to believe that it :would pa~ what~ver the c.ourt legitimately found to be due. It m fact said so m the wntten statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the yresent is that one. The respondent cannot legitimately claim that the amendment will prejudicially effect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made. This, therefore, seems to us to be pre-eminently a case for allowing the amendment. The authorities also lead us to the same view. In L. J. Leach & Co.'s case(') a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand, being already in the plaint. In Charan Das's case(') an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaraE tion of a right to pre-empt. In the last mentioned case, the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was, therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that drum to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted F G H to make the claim initially on a wrong notion and a wrong le<>al advice. Punishing of mistakes is, of course, not administrati~ri of justice. It is true that the plaint does not set out the detruls of the work done. But there never was any dispute about them. Indeed the respondent had prepared a final bill of the appellant's dues for the work done under the contract and the appellant had accepted that bill as correct except on the question as to the proper rate chargeable under the clause. Strictly the details of the work done were not necessary in the plaint for it would be a waste of time of a court to go into them, it not being unusual to direct an enquiry by a Commissioner or a subordinate officer about such (1) [1957] S.C.R. 438 (2) L.R. 47. LA. 2.55. L8Sup.C.I./65-8 802 SUPREME COURT REPORTS (1966] l S.C.R. -Oetails when, as in the present case, the items of work done are A innumerable. It would be enough in such cases to file the details before the authority making the enquiry. Besides, in Pirgonda Hongonda Patil's case('), in a suit for a declaration of title, this Court permitted an amendment setting out the detailed facts on which the title was claimed after the suit had become time barred. The absence of the details of the work does not furnish a legitimate B ground for refusing the amendment. It may be that as a result of the amendment, if the respondent chooses to raise a controversy about the work done, that is, about the quantity, quality and other things concerning it, which it had never raised so long, the matter will have to be gone into. That c again would not justify a refusal of leave to amend. It would not mean any waste of time or money or any duplication of work. That investigation would now be made for the first time and nothing done so far would become futile. Such an enquiry was indeed directed in L. J. Leach & Co.'s case('). The amendment sought is necessary for a decision of the real D dispute between the parties which is, what are their rights under the contract? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. Only through a misconception a relief which could be asked on those facts had not been asked. It would not have been necessary E to ask for it unless the respondent had at a late stage taken the point that the suit should fail without more in the absence of that relief. We find the present ca~e indistinguishable from Chara11 Das's case{1). We would for these reasons allow the appeal. The case would go back to the High Court with a direction to it to allow the F amendment sought and then to decide the correct interpretation of the disputed clause and thereafter, if the occasion arose, to ascertain the amount due by a proper enquiry to be made either by the High Court or by the trial Court as the High Court may think fit. The High Court may, if the appellant asks for it, also allow an (j amendment setting out the particulars making up the claim of Rs. 65,000 introduced by the amendment, that is, quantity, rate etc. of the work done. The appellant will get the costs in thi~ Court. The question of subsequent costs will be decided by the High Court. The judgment of the High Court in so far a~ it refused the amendment is set aside but the rest of that judgment 8 will stand. (t) 11957] S.C.R. 595. (2) [1957] S.C.R. 438. (3) L.R. 47 I.A. 255. I • • • A B c D A. K. GUPTA V. D. V. C. (Daya/, J.) 803 Raghubar Dayal, J. This appeal, on certificate granted by the High Court of Patna, is against the judgment and decree dismissing the appellant's suit for a declaration on the ground that the plaintiff had not asked for consequential relief. The High Court rejected the application presented to it for amendment of the plaint. The question for determination is whether the High Court was right in rejecting the application for amendment. The plaintiff sued for a declaration that it was entitled to enhancement of 20 % over the tender rates for the different categories of excavation work as detailed in para 13 of the plaint in connection with the work of excavation in foundation of the Tilaiya Dam at Katni, P. S. Koderma, in the district of Hazaribagh. Paragraphs 1 and 2 of the plaint read : "1. That the plaintiff did excavation on work of different categories as contractor in connection with the excavation in foundation of the Tilaiya Dam at Katni in the district of Hazaribagh, P. S. Koderma. The contractor's letter of 24th September 1949 (Annexure A) eventually became the tender for such work. 2. Paragraph of the contractor's letter stated : 'This quotation is based on prevailing labour rate of Rs. 1-4-0 per cooly but if there is increase of labour E rate of more than 10% in any particular month, the proportionate increase in rate will be charged'." Paragraphs 3 to 11 state facts which indicate that the plainti11 had asked for tho increase of the labour rate per cooly by 20% and that the enhanced rates approved by the Corporation-defendant were F not accepted by the plaintiff. Paragraph 12 states that the plaintiff asked for payment under protest to which the defendent was not agreeable. Paragraph 13 mentions the enhanced rates to which the plaintiff considers himself entitled according to the proper interpretation of clause 17 of the tender. Paragraph 14 of the plaint reads : G "As the difference between the parties is a bout the interpretation of clause 17 of the letter of the contractor dated 24-9-1949 the plaintiff is advised to file the suit in the declaratory form. H The plaintiff reserves the right under 0. 2, r. 2 of the Code of Civil Procedure to omit to sue in respect of amount that may be found due upon the interpretation placed by the plaintiff upon the said clause 17 ·which interpretation it is submitted is the proper interp1etation. 804 SUPREME COURT REPORTS [1966] I S.C.R. The plaintiff reserves the right to sue later on tor the A amount found due to him." ?aragraph 15 states that the cause of action arose on December 6. 1951 when the Corporation refused to allow the incre:~se of 20%. Paragraph 16 gives the value of the suit for the purp•Jse of jurisdiction to be Rs. 65,000 and said that court-fees of Rs. 20-10-4 B was paid as the suit was for declaration. Paragraph 17 said that the plaintiff claimed (i) leave under 0. 2, r. 2, C.P.C.; and (ii) that it be declared that the plaintiff is entitled to enhancement of 20% over the tendered rates for the different cat~goncs of e.xcavation work as detailed in paragraph 13 of the plaint in connectio~ with the work of excavation in foundation of tht> Tilaiya Dan: c The plaint contained 3 annexures. Annexure A was the letter which ultimately constituted the lender. The schedule to the tender described the class and descrip· lion of work to be executed, unit of calculation and the rate of payment. Annexure B was the letter from the plaintiff to the Executive Engineer dated March 11, 1950 stating the difficulties D in the performance of the contract. Anne:imre C was the letter from the Executive Engineer dated March 15-16, 1950 conveying the approval of an enhancement of I 0% in the rate over the tendered rate for the excavation work from the date onward. Annexure D is the letter from the plaintiff to the Corporation E dated December 26, 1951 disputing the interpretation of the Corporation. It is clear from the plaint and its enclosures that the dispute between the parties was about the rate to be paid for the different categories of work and that the plaintiff did not deliberately sue to recover the amount that might be found due upon the interF pretation placed by the plaintiff upon the said clause 17. Paragraph 13 of the written statement filed by the defendant stated that the defendant did not admit the later part of the statement in para 14 of the plaint which related to the plainlitrs reserving his right to sue later for the amount found due at the G enhanced rate. The defendant, inter alia, contested the suit on the ground that the suit was not maintainable in the form in which it had been framed. Paragraph 16 of the written statement stated that the Corporation was ever ready and willing and was still willing to pay the legitimate dues to the plaintiff. Issue No. 2 of the issues framed m the case was : 'Is the suit H maintainable in its present form ?' The trial Court stated in its judgment: • A B c 0 E F G H A. K. GUPTA V. D. V, c. (Dayal, J.) "The defendant also pleaded that the plaintiff has no cause of action, the suit is not maintainable in the present form and the court-fees paid is insufficient. But these allegations were not pressed at the time of hearing." 805 It accepted the contention for the plaintiff that it was entitled to over-all increase by 20% in accordance with cl. 17 of the tender. It further said : "No objection has been pressed as to the plaintiff's prayer regarding leave under 0. 2, r. 2, C.P.C. That must therefore be allowed." It accordingly decreed the suit. On appeal, the High Court accepted the respondent's contention that in view of the proviso to s. 42 of the Specific Relief Act the suit for mere declaration was not maintainable and that the trial Court was not right in granting permission under r. 2 ( 3) of 0. 2, C.P.C. to the plaintiff to institute another suit for the amount to which the plaintiff be entitled after the declaration sought for in the suit had been granted. The prayer for amending the plaint was rejected as the money claimed had become time.. barred Jong before the prayer was made during the arguments before the High Court and as there existed no special circumstances to justify the grant of the amendment against the interest• of the defendant-respondent. The High Court therefore allowed the appeal and dismissed the suit. It however granted leave to appeal as the requirements of art. 133(1)(a) of the Constitution were satisfied. Learned counsel for the appellant has contended that there exists such special circumstances in the case which would have justified, in the interests of justice, the grant of the application for amendment of the plaint and, in the alternative, contended that the High Court should not have allowed the respondent to object to the maintainability of the suit on the basis of the proviso to '· 42 of the Act and if the Court had allowed such an objection it should have, as a matter of course, allowed the application for amendment. I propose to dispose of the second contention first. The contention about the maintainability of the suit was based on s. 42 of the Act and had to be allowed. The Court could not make a declaration unless further relief had been prayed for. It was incumbent on the Court to comply with this requirement of law, 806 SUPREME COURT REPORTS ( 1966] 1 S.C.R. even if not raised by the party, when it was clear that further A relief could be claimed in the suit. Further, in this particular case, it cannot be said that no objection had been raised on this ground by the respondent up to the stage of the appeal in the High Court. In paragraph 2 of the written statement, the respondent questioned the maintainability of the suit in the form in which it was instituted. Issue No. 2 was framed in that connecB tion. The contention was not given up by the respondent. It was simply not pressed on his behalf, possibly, because it felt strong on the contention on the basis of which the declaration was sought. I therefore do not consider the High Court in error in allowing the respondent to raise the objection to the maintainability of the suit on account of the plaintiff not having asked C for the further relief. It does not however follow that the appellant must have been allowed, as a matter of course, to amend the plaint by adding a claim for recovery of the amount found due. The various cases relied on in support of this contention are D cases in which the fresh relief claimed by way of amendment was not affected by the law of limitation and the objection to the maintainability of the suit had not been taken at an early stage of the suit. Reference need not be made to all those ca'cs except to the one reported as Rukhmabai v. Vila Laxminarayan( 1 ) in which this Court observed : E "It is a well-settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so." Neither the question of limitation arose in that case nor did the Court consider it necessary for the plaintiff to have asked for F consequential relief. The above observation cannot be taken to be a pronouncement in connection with amendments sought in the pleadings when they be with respect to claims which had become time-barred. It is now well-settled that the Court has power to allow G amendments in connection with claims which had become time.- barred, if special circumstances exist and it be in the interests of justice. This is not disputed for the respondent. The real dispute between the parties is whether the c'rcumstances of the case come within the principle laid down in the various cases. This necessarily leads to a consideration of the circumstances and H the amendments sought in those cases. ---- ·----·· (I) (1960) 2 S.C.R. 253, lSS. • ., A B A. K. GUPTA v. D. v. c. (Dayal,/.) 807 Before referring to the cases, I may set out the provisions of the Code which empower the Court to allow amendment of pleadings. Section 153 and O. 6, r. 17, deal with the matter. Section 15 3 reads : "The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding." Rule 17 of 0. 6 reads: c "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in D controversy between the parties." F These indicate that the amendment should be in such manner as may be just and that, as a rule, all such amendments shall be made as be necessary for the purpose of determining the real questions in controversy between the parties. No amendment would be just if it so prejudices the interests of the other party for which that party cannot get any relief from the Court. The amendments which must be allowed can be those in the absence of which the Court may not be able to determine the real question in controversy between the parties. The real question in controversy must be gathered only from the plaint and to some extent from the allegations in the written statement. If the point to be decided as a result of the amendment is not covered by the controversy raised by the plaint and the written statement, the amendment is not to be allowed necessarily, for the simple reason that it is unnecessary for determining the real questions in controversy between the parties. The Court has to decide the G suit instituted before it and with respect to the controversies raised in it. It follows that the amendments to be allowed relate to such matters which, due to bad drafting of the plaint. could not be clearly and precisely expressed, though the parties did really intend to have those matters determined by the Court. The H object of the amendment of the pleadings is to clarify the pleadings for bringing into prominence the real controversy between the parties and not for helping a party by making such amendments which be beneficial to him in connection with some dispute 808 SUPREME COUllT REPORTS [1966] I S.CR. between the parties, a dispute which has no.t been really A taken to the Court for decision and which the parties did not really intend to be decided in that suit. This seems to me to be the real basis for an order of the Court in connection with such amendments sought by a party in its pleadings as would raise a claim which has become time-barred. None of the cases referred to by the parties hold differently. The cases which are to be considered in this connection arc : Kisandas Rupchand v. Rachappa Vithoba('); Charan Das v. Amir Khan( 2 ); L. J. Leach & Co. Ltd. v. Jardine Skinner B & Co.( 1); and Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil('). Reference to Kisandas's case(') is necessary as some c of the observations in that case were approved by this Court in the last case('). In Kisandas's case('), the plaintiff sued for dissolution of partnership and accounts alleging that in pursuance of the partner5hip agreement they had delivered Rs. 4,001 worth of cloth to the D defendants. The Court found that the alleged agreement was not a partnership agreement bui evidenced the advance of a simple loan by the plaintiffs to the defendants. The trial Court held that the plaintiffs had really delivered cloth worth Rs. 4,00 I to the defendants, but dismissed the suit as no decree for dissolution of partnership and for accounts could be 1:iven and the plaintiff E had not asked to amend the plaint. In the first Anpellate Court the plaintiffs-appellants accepted the findings of the trial Court that no partnership was constituted by the agreement and prayed for leave to amend by adding a prayer for the recovery of Rs. 4,00 I. The appellate Court was of opinion that the plainF tiffs had from the first intended to sue only for the recovery of money but had been mi