Summary
The Supreme Court upheld a Calcutta High Court order permitting the plaintiff contractor to amend its plaint to bring on record debarment orders passed after the suit was filed. Those orders flowed from the memo challenged in the suit and formed a continuing cause of action, so the amendment did not change the nature of the suit, was within time, was not barred by the earlier withdrawn amendment application, and needed no fresh notice under Section 80 CPC.
Issues
- Whether an amendment of the plaint to bring on record debarment orders passed after the institution of the suit introduced a fresh cause of action and changed the nature and character of the suit.
- Whether the proposed amendment was barred by limitation, having been sought more than three years after the last debarment order.
- Whether withdrawal of an earlier amendment application without liberty barred the later application under Order XXIII Rule 1 read with Section 12 CPC.
- Whether a fresh notice under Section 80 CPC to the State was required before the amendment.
Provisions considered
- Section 80, Code of Civil Procedure, 1908The Court reproduced the provision requiring two months' prior notice before a suit is instituted against the Government or a public officer, and held it irrelevant because the amendment did not introduce a new suit but continued the same cause of action and kept the suit's character unchanged. (¶¶ 12, 17, 25, 26)
- Order XXIII Rule 1 read with Section 12, Code of Civil Procedure, 1908The bar on a fresh suit after abandonment or withdrawal without liberty was held not attracted: the two amendment applications were filed at different points in a continuing cause of action and the first had been withdrawn without any adjudication on merits. (¶¶ 11, 24)
- Limitation for the amended claim (three-year period), Limitation Act, 1963The State's plea that the three-year period ran from the last debarment order of 31.10.2017 was rejected; because the High Court's order of 24.01.2020 keeping the legality of that order open was the last event in the continuing cause of action, the amendment application was within limitation. (¶¶ 13, 21, 23)
Held
- A cause of action is continuing where the act alleged to be wrongful repeats over a period of time, which extends the period of limitation; a cause of action is the bundle of facts giving rise to a legal right. (¶ 21)
- The successive debarment orders all originated in the memo of 08.03.2016 that was impugned in the suit and were challenged by interlocutory applications in the same suit; they formed one continuous chain, and adjudication of the suit, including the plaintiff's damages claim for the first debarment, would be incomplete without them. Bringing them on record required no fresh suit and did not alter the nature and character of the suit. (¶¶ 18, 21, 22)
- Since the High Court's order of 24.01.2020 had expressly kept open the legality of the last debarment order, that order was the last event in the continuing cause of action and the amendment application was within limitation. (¶¶ 19, 20, 23)
- Withdrawal of the first amendment application without liberty did not amount to abandonment barring the second under Order XXIII Rule 1 read with Section 12 CPC, because the applications were made at different stages of a continuing cause of action and the first was never decided on merits. (¶ 24)
- As the amendment continued the same cause of action and kept the suit's character intact, no notice under Section 80 CPC was required before it. The Court expressed no opinion on the merits of the suit. (¶¶ 16, 26)
Result
Appeal dismissed; the High Court's order allowing the amendment of the plaint and dispensing with notice under Section 80 CPC was upheld; no order as to costs.