1986 PLP 1433 (MLD)

In the result this application is dismissed. Civil Miscellaneous Application No.154 of 1985: This application has been filed by the plaintiff seeking to amend the plaint which was presented and registered oq 7‑1‑1985. Three amendments are sought by adding three paras. in the body of the plaint. All the three amendments relate to defendant No.3 whose learned counsel has filed a counter‑affidavit and has vehemently opposed the incorporation of these paras. In the counter‑affidavit of the defendant No‑3 these amendments are opposed because "the application has been filed four, after the institution of the suite whereby relief has whom no relief had been sought and no cause of action was shown to have accrued". In para. 5 of the counter‑affidavit the defendant No.3 has advanced further reasons against the prayer for amendment. para. 5 of the counter‑affidavit is as follows:‑ "That the amendment being sought changes the very nature of the proceedings against the defendant No.3 as all along the plaintiff had been contending that the consignment was shipped in its entirety in good order and condition, and that he has sufficient evidence on record to show that the present loss has taken place in transit and due to the negligence/ misconduct of defendant carriers/their servants and agents." On these premises of opposition I now proceed to examine the three desired amendments in this C.M.A. No.154 of 1985. The first amendment is as follows:‑ "in the heading of the plaint against defendant No. 3, the following may be inserted: Messrs Cargil Incorporated, 2‑Broadway, New York, NY‑100004, U.S.A." This name is totally different from the original name of defendant No.3 which was shown as follows:‑ " Messrs Cersony Strans Company Inc. (Cargil)" No reasons for the substitution of one name for the other are given either in the application or in the accompanying affidavit. Paras. 3 and 4 of the supporting affidavit are relevant and may be quoted:‑ "(3) That at the time of filing the suit, there was little confusion about the name of defendant No.3, but the name of 'Cargill was mentioned against the defendant No.3. (4) That the confusion has been removed by the learned counsel for the defendant No.3 during course of arguments on 1‑4‑1984 and therefore, the full particulars of 'Cargil Incorporated' have now been inserted against defendant No.3." By reading these two paras. of the affidavit one cannot find what was the confusion and how it was resolved on 1‑4‑1984 during the arguments. As a matter of fact the proposed para in the application and these two paras. in the affidavit themselves create a confusion instead of resolving the confusion, if any, on plain reading it appears that the two are totally different statutory, identities and until the reasons for substitution of one for the other are spelled out these amendments cannot be permitted after about five years of the filing of the suit. The other paragraph sought to be added is as follows:‑ "The consignment remained in possession of defendant No.1 and defendant No.3 till it was delivered to the consignees. Loss took place with defendant No.1 or defendant No.3. If it is found that the defendant No.1 are not liable then it is certainly the liability of defendant No.3." If the desired amendment is read in juxtaposition to paragraphs 6, 7, 8 and 16 of the plaint it would be evident that a totally different picture would merge, if this para. is allowed to be incorporated paragraphs 6, 7, 8 and 16 may be quoted for ready reference:‑ "(6) The above consignment was shipped in entirety and in good order and condition. (7) Before the acceptance of this consignment for shipment the defendant carriers verified the description, quantity, quality value, weight of the consignment by applying all internationally accepted measurers. They took actual measures and ascertained the quantity, quality, and in token of such satisfaction issued their clean Bills of Lading. (8) No carriers under no law were bound to mention the details of the consignment in the Bill of Lading but they having been fully satisfied mentioned the full details including the quantity, quality and weight of the consignment in the Bill of Lading. By this the weight became part of the contract and is binding on the parties and the defendant carrier are bound to deliver the consignment of weight. (9) to (15) ... ... ... ... (16) There is sufficient evidence on record to show that the present loss has taken place in transit and due to the negligence/ misconduct of the defendant carriers or their servants and agent." In this view of tire matter there is force in the contention of the learned counsel for the defendant No.3 that this would amount to setting up a new case against the defendant No.3 after five years. It is not a case only of inconsistent plea but setting up a totally different and new case from the one which was pleaded in the original plaint. This amendment therefore, cannot be permitted. The third amendment desired by the plaintiff is the addition of the words 'defendant No.3' after the words 'defendants Nos.l and 2 in the prayer clause. In my opinion this is a merely formal prayer and the plaintiff is entitled to add this as "defendant No.3" in the prayer clause because defendant No.3 is already a party in the title of the, plaint. I would allow this amendment in the plaint as proposed in para. 3 of the application. Amendment to be effected within two weeks. The application is partly allowed in the above terms. A.A. Application partly allowed.