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High Court Of Orissa
D. P. MOHAPATRA, J. M. MAHAPATRA
S.M.M.ABDI - Appellant
Versus
JANAKI BALLAV PATNAIK - Respondent
A. M. O. 27 Of 1989
Decided On : 07/12/1989
AMENDMENT OF PLAINT - CAUSE OF ACTION - LIMITATION - JURISDICTION - TORTFEASORS - JOINT LIABILITY - DEFAMATION - PUBLICATION - DISTRIBUTION - CIRCULATION - TERRITORIAL JURISDICTION - O. 6, R. 17, C. P. C. - ART. 75, LIMITATION ACT.
Fact of the Case:
Plaintiff filed a suit for damages against the defendants for publishing defamatory statements in a magazine. The plaintiff sought to amend the plaint to introduce a paragraph stating that the defendants were jointly liable for the distribution, circulation, and publication of the defamatory article. The defendant 3 challenged the amendment, arguing that it introduced a new cause of action and was barred by limitation.
Finding of the Court:
The court held that the amendment did not introduce a new cause of action as the essence of the case against the defendant was already stated in the plaint, though in a defective manner. The court also held that the amendment was not barred by limitation as the gist of the case against the defendant was stated in the plaint before the amendment.
Issues: 1. Whether the amendment of the plaint introduced a new cause of action against the defendant? 2. Whether the amendment was barred by limitation? 3. Whether the court had jurisdiction to entertain the suit against the defendant?
Ratio Decidendi: 1. The court held that the amendment did not introduce a new cause of action as the essence of the case against the defendant was already stated in the plaint, though in a defective manner. The court relied on the Supreme Court decisions in A. K. Gupta and Sons v. Damodar Valley Corporation, M/s. Ganesh Trading Co. v. Moji Ram, and Vineet Kumar v. Mangal Sain Wadhera, which held that an amendment is permissible if it does not constitute the addition of a new cause of action or raise a new case, but amounts to no more than a different or additional approach to the facts already on record. 2. The court held that the amendment was not barred by limitation as the gist of the case against the defendant was stated in the plaint before the amendment. The court relied on the Supreme Court decision in A. K. Gupta and Sons v. Damodar Valley Corporation, which held that a party is not allowed to set up a new cause of action by amendment, but it is well recognised that where the amendment does not constitute the addition of a new cause of action or raise a new case, but amounts to no more than a different or additional approach to the facts already on record, the amendment will be allowed even after expiry of the statutory period of limitation. 3. The court held that it had jurisdiction to entertain the suit against the defendant as the plaintiff had specifically averred in the plaint that "the Illustrated Weekly" was published and circulated at Bhubaneswar as well as other places and the plaintiff saw a copy of the magazine at Bhubaneswar.
Final Decision: The court dismissed the appeal and upheld the impugned order allowing the amendment of the plaint.
D. P. MOHAPATRA, J.
( 1 ) THIS appeal under Cl. 10 of the Letters Patent of the Orissa High Court was filed by defendant 3 in O. S. No. 1 of 1987 which is being tried by a learned single Judge of this Court. The appeal is directed against the order passed on 7th April 1989 in Misc. Case No. 11 of 1989 by the learned trial Judge permitting the respondent 1 to amend his plaint.
( 2 ) THE aforementioned suit was initially filed in the Court of the Subordinate Judge, Bhubeneswer by the respondent 1 against the appellant and respondents 2, 3 and 4 praying for a decree for Rs. 1,0000000/- (one crore) to be paid by the defendants jointly and severally and to injunct the defendants permanently from publishing further libellous and defematory statements during pendency of the sut and thereafter. The plaintiff claimed damages from the defendants for publishing the article in the magazine "the Illustrated weekly of India" in its issue dt, May, 18-24, 1986 in which, as alleged by the plaintiff, libellous allegations, insinuations and innundoes were written against him. The appellant as the Special Correspondent of the Magazine was impleaded as defendant 3 in the suit similarly the respondent 3, the proprietor of the Magazine was impleaded as defendant No. 1; respondent No. 4, the Editor and Publisher of the Magazine was impleaded as defendant 2 and respondent 2 whose statements made to the appellant in course of an interview were published in the article in question was impleaded as defendant 4 in the suit. Hearing of the suit has commenced and the plaintiff's evidence has been recorded. At that stage the plaintiff filed the application to amend the plaint seaking to introduce para. 26-A in the plaint. The said paragraph is set out hereinbelow :"defendants 1 and 2 set in motion the circulation of the said Illustrated Weekly dt. 18-24 May, 1986 containing defamatory matters specified in paras. 22-B and 22-C of the plaint in the Article therein under the caption "the Strange Escapades of J. B. Patnaik' resulting in the circulation and publication throughout India including Bhubaneswar and Orissa. The plaintiff further states that defendants 1 and 2 distributed/circulated/published the same in Orissa including Bhubaneswar. The plaintiff further states that the defendants 3 and 4 are joint tortfeasores along with defendants 1 and 2 in respect of such distribution/ circulation/publication and that they connived with defendants 1 and 2 with such distribution/circulation/publication by writing the said defamatory article and by stating at the interview what is reported to have been stated in the Illustrated Weekly of India respectively. "it was stated in the petition under O. 6, R. 17, C. P. C. , inter alia, that though the essence of the facts sought to be introduced by amendmert is clready existing in the plaint, for the purpose of elucidation of essential facts in a more explicit manner it was necessary to amend the plaint.
( 3 ) DEFENDANT 3 in his objection to the petition for amendment stated, inter alia, that the amendment sought, if allowed, will change the nature and character of the suit and it will seriously affect the case of the defendant 3 against when in the plaint no case has been made out. The defendant 3 further submitted that the plea of want of territorial jurisdiction of the Court raised by him will be lost if the amendment is allowed.
( 4 ) THE learned trial Judge on consideration of the case of the parties stated in their respective pleadings held that the rudiments or the seeds or the essence of the facts ought to be introduced by the proposed amendment are already in existence in the plaint; the facts are not new sought to be introduced for the first time; they will not change the nature, character and the cause of action of the suit nor will prejudice the defence of the defendants; it shall have no effect on the defence of lack of territorial jurisdiction or bar by limitation and therefore the amendment is permissibl
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