STATE OF A.P. AND ORS.versusM/S. PIONEER BUILDERS, A.P.

                              STATE OF A.P. AND ORS.                                    A
                                         v.
                            MIS. PIONEER BUILDERS, A.P.


-                                SEPTEMBER 25, 2006

                           [H.K. SEMA AND D.K. JAIN, JJ.]                               B


           Code of Civil Procedure 1908;

            Section 80-Notice under-Non issuance of-No urgent and immediate
      relief either prayed for or could be granted in the suit-No objection to          C
      maintainability taken at the earliest point of time nor such a plea raised in
      the written statement or additional written statement filed in the suit-Held,
      knowing fully well about non-issue of notice under Section 80 C.P.C and
      having participated in the original proceedings, it was not open to raise a
     fresh issue as to the maintainability of the suit as it will be deemed to be       D
      having waived the objection. ·

             The tender of the respondent being the lowest, it was awarded the work
       valued at Rs.8,42,93,617/- by the Superintending Engineer, Srisailam Right
       Branch Canal (for short "SRBC"). Since only 50% of the allotted work could
      be completed by the due date, the respondent, apprehending expulsion, tiled a     E
    · petition under Sections 8 and 20 of the Indian Arbitration Act, 1940 read
      wish Section 26 and Order VII Rule I of the Code of Civil Procedure (for
      short "C.P.C"), registered as an original suit. Notice was issued to the
      respondent expelling them from the contract on the ground that they had failed
      to maintain the rate of progress as per the approved programme. The
      respondent filed an application seeking interim injunction, restraining the       F
      defendants from encashing the bank guarantees furnished by them towards
      mobilization advance and as performance guarantee. The suit was resisted by
      the defendants mainly on merits though it was averred that "the plaintifrs
      suit is not maintainable either in law or on facts", No separate reply to the
     application was filed. However, the application was dismissed by the subordinate   G
     Judge. Aggrieved, the respondent preferred appeal to the High Court. While
     dismissing the appeal, the High Court observed that having regard to the
      language of the arbiratim1 agreement between the parties and the fact that
      there was no claim for any specified amount in the petition, the suit as filed

                                           571                                          H
    572                     SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A   by the respondent was mot maintainable. The Court, however, clarified that it
    would be open to the respondent to amend the plain in accordance with law, if
    so advised. The respondent filed three applications tin the pending suit viz.



B
    under Order VI Rule 17 C.P.C. for amendment of the plaint; for production
    of document; by the defendants; for dispensing with notice under Section 80
    C.P.C., respectively. All the applications were opposed by the defendants on
    merits of the claims made in the application seeking amendment of the plaint.
                                                                                        -
    No objection with regard to the maintainbility of the applications was raised.
    However, in the penultimate paragraph of reply to the third application, it was
    stated that since time was required to examine the claims, "issue of notice
    under Section 80 C.P.C. was necessary and was not superfluous." All the
C   three applications were allowed by the subordinate Judge. The order passed
    reads as follows: "Heard both counsels. I don't find any tenable ground to
    refuse I.he relief asked for, allowed". The orders passed in the said
    applications were not challenged. Instead two additional written statements
    were filed on behalf of the defendants. On the basis of the pleadings, as many
    as eighteen issues were framed. None of the issues pertained to
D   maintainability of the suit. After trial, the suit was decreed in respect of some
    of the claims made by the respondent with interest from the date of the filing
    of the suit. However, some of the claims made by the responent were rejected.
    Appeals and cross appeals were filed. The High Court has dismissed all the
    appeals. Hence, the present appeals.
E
          It was contended by the appellants that Section 80 C.P.C. being
    mandatory and in the absence of any prayer for an urgent and immediate order,
    the Trial Court was not justified in dispensing with the requirement of issue
    of notice under that Section. The provisions of sub-Section (2) of Section 80
    C.P.C. were not attracted on the pleaded facts and, therefore, in the absence
F   of requisite notice under sub-section (l) of Section 80, the Trial Court could
    not entertain the suit. It was also contended that the petitions filed by the
    respondent initially under Sections 8 and 20 of the Arbitration Act could not
    be converted into civil suits by way of amendment applications under Order
    VI Rule 17 C.P.C. The High Court, thus, has failed to take into consideration
G   the settled principles of law on both the issues.

           On behalf of the respondent, it was contended that though the suit filed
    initially was styled as a petition under Sections 8 and 20 of the Arbitration
    Act on account of vague language of the arbitration agreement but in fact it
    was a civil suit. Having failed to take any objection with regard to the
H   maintainability of the suit for want notice under Section 80 C.P.C. and further
                    STATE OF A.P. v. PIONEERBUILDERS.A.P.                      573

having failed to challenge the orders passed by the Trial Court, allowing the          A
applications filed under Section 80(2) and Order VI Rule 17 C.P.C., and having
participated in proceedings before the Trial Cout, the defect, if any, stood waived
and the State is now estopped from raising such objections. It was also
submitted that Section 80 C.P.C. being merely a part of the adjective law,
dealing with procedure alone, it should be interpreted in a manner so as to            B
subserve and advance the cause of justice rather than to defeat it on a mere
technicality. It was urged, therefore, that relegating the respondent to the
stage of notice under Section 80 C.P.C. would be travesty of justice.

      Partly allowing the appeal, the Court

     HELD l. l. Grant of leave simply by the order "there was no tenable               C
ground to refuse the relief asked for" can not be approved.

       l.2. In view of the fact that the State had not raised any specific objection
about the maintainability of the application on the ground that no urgent and
immediate relief had either been prayed for or could be granted and having             D
regard to the peculiar facts and the conduct of both the parties, it is not a fit
case where the matter should be remanded back to the subordinate Judge for
re-consideration. The order passed by subordinate Judge on respondent's
application under Section 80(2) C.P.e. was not beyond his jurisdiction. Further
having participated in the original proceedings, it was not open the State to
raise a fresh isrne as to the maintainbility of the suit, in view of waiving the       E
defect at the earliest point of time and knowing fully well about non-issue of
notice Section 80 C.P.C. the State had not raised such a plea in the written
statement or additional written statement filed in the suit and therefore,
deemed to have waived the objection. (582-G-H; 583-A-C(

      P.A. Ahammed Ibrahim v. Food Corporation ofIndia, [1999] 7 sec 39;               F
Bharat Coking Coal Ltd v. Raj Kishore Singh, (2000( 9 SCC 174 and
Ghanshyam Dass and Ors. v. Dominion of India and Ors.. (1984] 3 SCC 446,
referred to.

     Bhagchand Dagdusa Gujarathi and Ors. v. Secretary' of State for India, G
AIR (1927) PC 176; Sawai Singhai Nirmal Chandv. The Union of India, AIR
(1966) SC 1068 and Bihari ChowdhGIJ' and Anr. v. Staie of Bihar and Ors.,
(1984[ 2 sec 627, relied upon.

      2.l. While nothing the submission that the amendment prayed for had
the effect of changing the nature and character of the suit and it could not be. H
    574                     SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A allowed, in the impugned judgment the High Courrt altogether omitted to deal
    with the aspect of amendment of the plaint and away straghtaway proceeded to
    decide the claims on merit5. In the absence of any finding by the High Court
    on this aspect of the matter, it will not be proper to comment on the vaildity of
    the order passed by the subordinate Judge on contractor's application seeking
B   amendment of the plaint/petition, particularly when, the High Court in its
    earlier order had observed that in the absence of any claim for a specified
    amount, the suit, originally filed by the respondent, was not maintainable.
    Certain factual aspects may also have to be gone into by the High Court in
    the First Appeals filed by the State. Matter is remanded to the High Court for
    consideration of the issue with regard to the maintainability and the merits
C   of the application fifed by the respondent under Order VI Rule 17 C.P.C.
                                                               (584-E-H; 585-A-B)

       L.J. Leach & Co. ltd. and Anr. v. Mis. Jardine Skinner & Co., AIR (1957)
  SC 357; Smt. Ganga Bai v. Vijay Kumar and Ors.. (1974( 2 SCC 393 and B. K.
  Narayana Pillai v. Parmeswaran Pi1/ai and Anr.. (2000( 1 SCC 712, referred
D to.
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6114of1999.

          From the Final Judgment dated 3.3.1999 of the High Court of Andhra
    Pradesh at Hyderabad in Appeal No. 2207/1996.                      ·
E                                        WITH

          C.A. Nos. 1005, 1006/2000 and 6115/1999.

           Anoop G. Choudhary, V.R. Reddy, S.R. Ashok, P. Vinay Kumar, D.
    Bharati Reddy, G.N. Reddy, Suneel Murarka and V.G. Pragasam for the appearing
F   parties.
          The Judgment of the Court was delivered by
        D.K. JAIN, J. These four cross appea ·'"'"""'"ls, by special leave, are
  directed against two judgments and orders, both dated 3.3.1999, rendered by
  the High Court of Judicature Andhra Pradesh at Hyderabad in Appeal Nos.
G 2206-2207of1996 and 236-237of1998. The State of Andhra Pradesh, the first
  defendant in the suit and plaintiff, namely, Mis. Pioneer Builders, Engineers
  and Contractors, Hyderabad, hereinafter referred to as "the contractor" are
  the appellants before us. Since the factual matrix and the questions of law
  involved in all the appeals are common, these are being disposed of by this
H judgment. However, we shall refer to the facts of Civil Appeal No. 6115/1999
              STATE OF A.P. v. PIONEER BUILDERS. A.P. [D.K. JAIN, J.]        575
as illustrative.                                                                     A
      2. Sometime in the year 1988, the Superintending Engineer, Srisailam
Right Branch Canal (for short "SRBC"), defendant No.2 in the Suit, issued
notice inviting tenders from pre-qualified bidders of eligible source countries,
which included India, for the work of excavation, lining and construction of
structures of SRBC. It was a time bound project supported by credit loans            B
from the International Development Association and International Bank for
Reconstruction and Development.

       3. The tender of the contractor being the lowest, he was awarded the
work valued at Rs.8,42,93,617/-. A formal agreement was executed. Time for           C
completion of the work was thirty six months from the date of handing over
of the site. Clause 57 of General Conditions of Contract laid down the procedure
for resolution of disputes. It reads thus:

      "57. RESOLUTION OF DISPUTES:

        (I) Settlement of claims for Rs.50,000/- and below by Arbitration.           D
            All disputes or differences in respect of which the decision, if any,
        of the Engineer or Employer has not become final and binding as
        aforesaid, shall on the initiative of either party in dispute be referre,d
        to the adjudication as follows:
        (a)      Claims upto a value        Superintending Engineer
                                                                                     E
                 of Rs. I0,000/-            S.R.B.C. Circle No. III
                                            Banganapalli at Nandyal

        (b)      Claims above               Chief Engineer,
                 Rs. I0,000/- & upto        Major Irrigation,                        F
                 Rs.50,000/-                Hyderabad

           The arbitration shall be conducted in accordance with the
        provisions of Indian Arbitration Act of 1940 or any statutory
        modifications thereof.                                        G
        2. Settlement of claims above Rs.50,000/-
           All claims of above Rs.50,000/- are to be settled by a court of
        competent jurisdiction by way of Civil Suit."
      4. It seems that only 50% of the allotted work could be completed by
the due date. Apprehending expulsion, on 24.3.1992, the contractor filed a H
    576                     SUPREME CO!IR r REPORTS [2006] St:PI'. 6 S.CR.

A petition under Sections 8 and 20 of the Indian Arbitrati.rn Act, 1940 read with
    Section 26 and Order VII Rule I of the Code of Civil Procedure (for short
    "C.P.C"), registered as an original suit, with the following prayers:



B
            ''(a) Arbitrate the disputes mentioned in para 17 arising between the
                  plaintiff and defendant under clauses 56 and 57 of section 2, vol.I
                  of the contract and also direct the defendants to pay to the
                                                                                        -
                  plaintiff the amount so determined as pa~·able.
            (b) Or in alternative to direct the defendants to file the agreement
                before the Hon 'ble Court and appoint a sole arbitrator for
                adjudicating the said disputes referred to in paragraph 17 arising
c               between the plaintiff and defendants under the Arbitration Act,
                1940.
            (c)   Payment of interest on the amount payable to the plaintiff at the
                  rate of 21 % per annum from the date of execution of work till
                  payment.
D           (d) Costs."

           5. On 26.3.1992 defendant No.2 issued notice to 1he contractor expelling
    them from the contract on the g. c1und that they had failed to maintain the rate
    of progress as per the approved programme. On 13.4.1992, the contractor filed
E   an application seeking interim injunction, restraining the defendants from
    encashing the bank guarantees for an amount of Rs.1,26,00,000/-, furnished
    by them towards mobilization advance and as performance guarantee. The
    suit was resisted by the defendants mainly on merits though it was averred
    that "the plaintiff suit is not maintainable either in law or on facts". No
    separate reply to the application appears to have been filed. However, the
F   application was dismissed by the subordinate Judge. Aggrieved, the contractor
    preferred appeal to the High Court, which was dismissed vide order dated
    13.11.1992. While dismissing the appeal, the High Court observed that having
    regard to the language of the arbitration agreement between the parties and
    the fact that there was no claim for any specified amount in the petition, the
    suit as filed by the contractor was not maintainabk. The Court, however,
G   clarified that it would be open to the contractor to amend the plaint in
    accordance with law. if so advised.

         6. In the light of the said order, on 17.1.1993, the contractor filed three
  applications in the pending suit: (i) I.A. No.111993 under Order VI Rule 17
H C.P.C. for amendment of the plaint: (ii) LA. No. 2il 993 - for production of
           STATE OF A.P. "·PIONEER BUILDERS. A.P. jD.K. JAIN, .I.)           577
 documents by the defendants; (iii) I.A. No.3/1993 - for dispensing with notice     A
 under Section 80 of C.P.C. All the applications were opposed by the defendants
on merits of the claims made in the application seeking amendment of the
plaint. No objection with regard to the maintainability of the applications was
raised. However, in the penultimate paragraph of reply to I.A. No. 3/1993, it
was stated that since time was required to examine the claims, "issue of notice     B
under Section 80 C.P.C. was necessary and was not superfluous". All the
three applications were allowed by the subordinate Judge vide docket order
dated 2.2.1993. Order passed in I.A. No.3/1993 reads as follows:

        "Heard both counsels. I don't find any tenable ground to refuse the
        relief asked for, allowed."                                                 c
      7. The orders passed in the said applications were not challenged.
Instead two additional written statements were filed on behalf of the defendants.
On the basis of the pleadings, as many as eighteen issues were framed. None
of the issues pertained to maintainability of the suit. After trial, the suit was
decreed in respect of some of the claims made by the contractor with interest       D
from the date of the filing of the suit. However, some of the claims made by
the contractor were rejected.

      8. Being aggrieved, both the parties preferred First Appeals to the High
Court (No.2206-2207 of 1996 and 236-23 7 of 1998). By the impugned order, the
High Court has dismissed all the appeals. Hence, the present appeals.               E
       9. We have heard Mr. Anoop G. Choudhary, learned senior counsel
appearing on behalf of the State and Mr. V.R. Reddy, learned senior counsel
appearing for the contractor only on the two legal issues emanating from the
orders passed by the subordinate Judge in I.A. Nos. I and 3/1993, namely, F
(i) maintainability of the amendment application filed under Order VI Rule 17
C.P.C. and (ii) maintainability of the suit for want of notice under Section 80
C.P.C.

       I0. Mr. Choudhary has vehemently submitted that Section 80 C.P.C.
being mandatory and in the absence of any prayer for an urgent and immediate G
order, the Trial Court was not justified in dispensing with the requirement of
issue of notice under that Section. It is asserted that the provisions of sub-
section (2) of Section 80 C.P.C. were not attracted on the pleaded facts and,
therefore, in the absence of requisite notice under sub-section (I) of Section
80, the Trial Court could not entertain the suit. Learned counsel has also
urged that the petitions filed by the contractor initially under Sections 8 and H
    578                    SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A 20 of the Arbitration Act could not be converted into civil suits by way of
    amendment applications under Order VI Rule 17 C.P.C. In support reliance is
    placed on the decisions of this Court in P.A. Ahammed Ibrahim v. Food
    Corporation of India' and Bharat Coking Coal ltd v. Raj Kishore Singh
    and Anr, 1 wherein it has been held that converting an application under
B   Section 20 of the Arbitration Act into a suit for recovery by permitting it to
    be amended under Order VI Rule 17 C.P.C. would amount to introducing a
    totally new cause of action and change the nature of the action. It is, thus,
    pleaded that the High Court has failed to take into consideration the settled
    principles of law on both the issues.

C           11. Per contra, Mr. Reddy has contended that though the suit filed
    initially was styled as a petition under Sections 8 and 20 of the Arbitration
    Act on account of vague language of :he arbitration agreement but in fact
    it was a civil suit. Learned counsel has also submitted that having failed to
    take any objection with regard to the maintainability of the suit for want of
    notice under Section 80 C.P.C. and further having failed to challenge the
D   orders passed by the Trial Court, allowing the applications filed under Section
    80(2) and Order VI Rule 17 C.P.C., and having participated in proceedings
    before the Trial Court, the defect, if any, stood waived and the State is now
    estorped from raising such objections. Relying on Ghanshyam Dass and Ors.
    v. Dominion of India and Ors.,3 learned counsel has submitted that Section
E   80 C.P.C. being merely a part of the adjective law, dealing with procedure
    alone, it should be interpreted in a manner so as to subserve and advance
    the cause of justice rather than to defeat it on a mere technicality. Learned
    counsel has also urged that relegating the contractor to the stage of notice
    under Section 80 C.P.C. would be travesty of justice.

F         12. The first question that arises for determination is as to whether or
    not the suit filed by the contractor was maintainable because of the alleged
    non-compliance with the provisions of Section 80 C.P.C.?

          Section 80 C.P.C. reads as follows:-

G           "80. Notice - (I) Save as otherwise provided in sub-section (2), no suit
            shall be instituted against the Government (including the Government

    1. (1999] 1 sec 39.

    2. c20001 9 sec 174.
                                                                                       -
H 3. [198413 sec 46.
  STATE OF A.P. v. PIONEER BUILDERS, A.I'. [D.K. JAIN, J.]          579
of the State of Jammu and Kashmir) or against a public officer in          A
respect of any purporting to be done by such public officer in his
official capacity, until the expiration of two months next after notice
in writing has been delivered to, or left at the office of -

    (a) in the case of a suit against the Central Government, [except
        where it relates to a railway], a Secretary to that Government;    B
    (b) in the case of a suit against the Central Government where
         it relates to a railway, the General manager of that railway;

         ***
    (bb) in the case of a suit against the Government of the State of      C
        Jammu & Kashmir, the Chief Secretary to that Government or
        any other officer authorised by that Government in this
        behalf;

    (c) in the case of a suit against [any other State Government],        D
        a Secretary to that Government or the Collector of the district;

         **•
         **•
    and in the case of a public officer, delivered to him or left at his E
    office, stating the cause of action, the name, description and
    place of residence of the plaintiff and the relief which he claims:
    and the plaint shall contain a statement that such notice has been
    so delivered or left.
    (2) A suit to obtain an urgent or immediate relief against the F
    Government (including the Government of the State of Jammu
    and Kashmir) or any public officer in respect of any purporting
    to be done by such public officer in his official capacity, may be
    instituted, with the leave of the Court, without serving any notice
    as required by sub-section (I); but the Court shall not grant relief
    in the suit, whether interim or otherwise, except after giving to the G
    Government or public officer, as the case may be, a reasonable
    opportunity of showing cause in respect of the relief prayed for
    in the suit:
     Provided that the Court shall, if it is satisfied, after hearing the
    parties, that no urgent or immediate relief need be granted in the H
    580                      SUPREME COURT REPORTS [20061 SUPP. 6 S.C.R.

A                suit. return the plaint for presentation to it after complying with
                 the requirements of sub-section ( 1).

                   (3) No suit instituted against the Government or against a public
                 officer in respect of any act purporting to be done by such public
                 officer in his official capacity shall be dismissed merely by reason
B                of any error or defect in the notice referred to in sub-section ( 1),
                 if in such notice -

                 (a) the name. description and the residence of the plaintiff had
                     been so given as to enable the appropriate authority or the
                     public officer to identify the person serving the notice and
c                    such notice had been delivered or left at the office of the
                     appropriate authority specified in sub-section (I) and

                 (b) the cause of action and the relief claimed by the plaintiff had
                     been substantially indicated."

D          13. From a bare reading of sub-section (I) of Section 80, it is plain that
    subject to what is provided in sub-section (2) thereof, no suit can be filed
    against the Governm~nt or a public officer unless requisite notice under the
    said provision has been served on such Government or public officer, as the
    case may be. It is well-settled that before the amendment of Section 80 the
    provisions of m.1mended Section 80 admitted of no implications and exceptions
E   whatsoever and are express, explicit and mandatory. The Section imposes a
    statutory anrl unqualified obligation upon the Court and in the absence of
    compliance with Section 80, the suit is not maintainable. (See: Bhagchand
    Dagdusa Gujrathi & Ors. v. Secretary of State for India\· Sawai Singhai
    Nirmal Chand v. The Union of India' and Bihari Chowdhary & Anr. v. State
F   of Bihar & Ors•.). The service of notice under Section 80 is, thus, a condition
    precedent for the institution of a suit against the Government or a public
    officer. The legislative intent of the Section is to give the Government sufficient
    notice of the suit. which is proposed to be filed against it so that it may
    reconsider the decision and decide for itself whether the claim made could be
    accepted or not. As observed in Bihari Chowdhury (supra), the object of the
G   Section is the advancement of justice and the securing of public good by
    avoidance of unnecessary litigation.

    4. AIR. (1927) Prhy Council 176.

    5. AIR (1966) SC 1068.

H 6. 11984) 2 sec 627.
           STATE OF A.P. v. PIONEER BUILDERS, A.P. [D.K. JAIN, J.)            581
       14. It seems that the provision did not achieve the desired results           A
inasmuch as it is a matter of common experience that hardly any matter is
settled by the Government or the public officer concerned by making use of
the opportunity afforded by said provisions. In most of th.e cases, notice
given under Section 80 remains unanswered. In its 14th report (reiterated in
27th and 54th Report), the Law Commission, while noting that the provisions          B
of this section had worked a great hardship in a large number of cases where
immediate relief by way of injunction against the Government or a public
officer was necessary in the interests of justice, had recommended omission
of the Section. However, the Joint Committee of Parliament, to which the
Amendment Bill 1974 was referred, did not agree with the Law Commission
and recommended retention of Section 80 with necessary modifications/                C
relaxations.

        15. Thus, in conformity therewith, by the Code of Civil Procedure
 (Amendment Act, 1976) the existing Section 80 was renumbered as Section
 80( I) and sub-sections (2) and (3) were inserted with effect from 1.2.1977. Sub-
 section (2) carved out an exception to the mandatory rule that no suit can be       D
 filed against the Government or a public officer unless two months' notice has
 been served on such Government or public officer. The provision mitigates
 the rigours of sub-section (I) and empowers the Court to allow a person to
 institute a suit without serving any notice under sub-section (1) in case it
finds that the suit is for the purpose of obtaining an urgent and immediate          E
relief against the Government or a public officer. But, the Court cannot grant
relief under the sub-section unless a reasonable opportunity is given to the
Government or public officer to show cause in respect of the relief prayed for.
Proviso to the said sub-section enjoins that in case the Court is of the opinion
that no urgent and immediate relief should be granted, it shall return the plaint
for presentation to it after complying with the requirements of sub-section (I).     F
Sub-section (3), though not relevant for the present case, seeks to bring in
the rule of substantial compliance and tends to relax the rigour of sub-section
(I).

       16. Thus, from a conjoint reading of sub-sections (I) and (2) of Section
80, the legislative intent is clear, namely, service of notice under sub-section     G
(I) is imperative except where urgent and immediate relief is to be granted by
the Court, in which case a suit against the Government or a public officer may
be instituted, but with the leave of the Court. Leave of the Court is a condition
precedent. Such leave must precede the institution of a suit without serving
notice. Even though Section 80(2) does not specify how the leave is to be            H
      582                    SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

_ A sought for or given yet the order granting leave must indicate the ground(s)
     pleaded and application of mind thereon. A restriction on the exercise of
     power by the Court has been imposed, namely, the Court cannot grant relief,
     whether interim or otherwise, except after giving the Government or a public
     officer a reasonable opportunity of showing cause in respect of relief prayed
     for in the suit.
 B
          17. Having regard to the legislative intent noticed above, it needs little
   emphasis that the power conferred in the Court under sub-section (2) is to
   avoid genuine hardship and is, therefore, coupled with a duty to grant leave
   to institute a suit without complying with the requirements of sub-section (I)
 C thereof, bearing in mind only the urgency of the relief prayed for and not the
   merits of the case. More so when want of notice under sub-section (I) is also
   made good by providing that even in urgent matters relief under this provision
   shall not be granted without giving a reasonable opportunity to the Government
   or a public officer to show cause in respect of the relief prayed for. The
   provision also mandates that if the Court is of the opinion that no urgent or
 D immediate relief deserves to be granted it should return the plaint for
   presentation after complying with the requirements contemplated in sub-
   section (I).

          18. Bearing in mind the afore-noted legal position, we advert to the facts
   in hand. As noted above, the subordinate Judge, vide Order dated 2nd
 E February, 1993 came to the conclusion that "there was no tenable ground to
   refuse the relief asked for". Though there may be some substance in the
   submission of Mr. Choudhary, learned senior counsel appearing for the State,
   that the order allowing the application, seeking dispensation of the requirement
   of notice, is cryptic but the fact remains that by allowing the application, after
 F hearing the defendant State, the Judge has opined that the suit is for the
   purpose of obtaining an urgent and immediate order. Had the satisfaction
   been against the contractor, the Court was bound to return the plaint to the
   contractor for re-presentation after curing the defect in terms of sub-section
   (I) of Section 80. Although we do not approve of the manner in which the
   afore-extracted order has been made and the leave has been granted by the
 G subordinate Judge but bearing in mind the fact that in its reply to the
   application, the State had not raised any specific objection about the
   maintainability of the application on the ground that no urgent and immediate
   relief had either been prayed for or could be granted, as has now been
   canvassed before us, we are of the opinion that having regard to the peculiar
 H facts and the conduct of both the parties it is not a fit case where the matter
           STATE OF A.P. v. PIONEER BUILDERS, A.P. [D.K. JAIN, J.)        583
should be remanded back to the subordinate Judge for re-consideration. We A
find it difficult to hold that the order passed by subordinate Judge on
contractor's application under Section 80(2) C.P.C. was beyond his jurisdiction.
Accnrdingly, we decline to interfere with the finding recorded by the High
Court on this aspect of the matter. The High Court has held that having
participated in the original proceedings, it was not now open to the State to
raise a fresh issue as to the maintainability of the suit, in view of waiving the B
defect at the earliest point of time. The High Court has also observed that
knowing fully well about non-issue ofnotice under Section 80 C.P.C. the State
had not raised such a plea in the written statement or additional written
statement filed in the suit and therefore, deemed to have waived the objection.
It goes without saying that the question whether in fact, there is waiver or C
not necessarily depends on facts of each case and is liable to be tried by the
Court, if raised, which, as noted above, is not the case here.

      19. We may now advert to the other aspect of the matter, viz. whether
or not leave to amend the petition/plaint was granted by the subordinate
Judge in accordance with the principles regulating amendments of pleadings?     D
        20. Principles governing amendment of pleadings are well-settled.
        Order VI Rule I 7 C.P.C. deals with the amendment of pleadings and
        provides that the Court may at any stage of the proceedings allow
        either party to alter or amend pleadings in such a manner and on such
        terms as may be just and all such amendments shall be made as may E
        be necessary for the purpose of determining the real questions in
        controversy between the parties. It is trite that though an amendment
        cannot be claimed as a matter of right under all circumstances, yet the
        power to allow the amendment is wide and can be exercised at any
        stage of the proceedings in the interest of justice. It is equally well- F
        settled that unless serious injustice or irreparable loss is likely to be
        caused to the other side, the Court should adopt liberal approach and
        not a hyper-technical approach particularly in a case where the other
        side can be compensated with costs. Dominant object to allow the
        amendment in the pleadings liberally is to avoid multiplicity of
        proceedings (See: L.J. leach & Co. ltd. & Anr. v. Mis. Jardine G
        Skinner & Co. 1, Smt. Ganga Bai v. Vijay Kumar & Ors.• and B.K.
        Narayana Pillai v. Parmeswaran Pillai & Anr9• Nevertheless, one

7. AIR (1957) SC 357
s. (19741 2 sec 393
9. 1200011 sec 112                                                              H
     584                    SlJPREME COl'RT REPORfS 120001Sl:rr.6 S.C.R.

A           distinct cause of action cannot be substituted for anotha nor the
            subject-matter ufthe suit can be changed by means of an amendment.
            The following passage from the decision of the Privy Council in Jiu
            Shwe :livu v. Jlaung Alu Hnuung". succinctly summarises the principle
            which may be kept in mind while dealing with the prayer for amendment
            of the pleadings:
B
            ·'All rules of court are nothing but provisions inknded to secure the
            proper administration of justice, and it is therefore essential that they
            should be made to serve and be subordinate to that purpose, so that
            full powers of amendment must be enjoyed and should always be
            liberally exercised, but nonetheless no power :ias yd been given to
c           enable one distinct cause of action to be substituted for another. nor
            to change. by means of amendment, the subject-matter of the suit."

         21. Having briefly noted the principles governing amendment of
    pkadings. we may advert to the facb of the present case.

D        ::2. Incidentally. the order passed by the subordinate Judge allowing the
  amendment application has nut been tiled but learned counsel appearing for
  both the parties have stated before us that it was identical to the one passed
   in the Application under Section 80(2) CP.C. (I.A. No. 3of1993). extracted
  above. Before the High Court it was argued on behalf of the State and so
E before us that since the amendment prayed for had the effect of changing the
  nature and character of the suit, it could not be allowed. However, we find
  that though the submission has been noted but somehow in the impugned
  judgment the High Court has altogether omitted to deal with the aspect of
  amendment of the plaint and straight away proceeded to decide the claims on
  merits. Initially filed as a petition under Sections 8 and 20 of the Arbitration
F Act, by means of an application under Order VI Rule 17 C.P.C. it was sought
  to be converted into a civil suit. It is pleaded before us that the original
  petition was also. in fact, in the nature of a civil suit as the court fee paid
  was much more than what was required to be paid on a petition under the
  Arbitration Act. We are of the considered view that in the absence of any
G finding by the High Court on this aspect of the matter. it will not be proper
  for us to comment on the validity of the order pa,sed by the subordinate
  Judge on contractor's application seeking amendment of the plaint/petition,
  particularly when. as noted above, the High Court, in its order dated 13.11.1992

    10. AIR (1922) Privy Council 249.
H
               STATE OF A.P. v. PIONEER BUILDERS, A.P. [D.K. JAIN,J.]            585
    had observed that in the absence of any claim for a specified amount the suit,      A
    originally filed by the contractor, was not maintainable. We feel that certain
    factual aspects may also have to be gone into by the High Court in the First
    Appeals filed by the State, wherein orders passed by the subordinate Judge

-   on 2.2.1993 (in I.A. Nos. I and 3/1993) had been challenged. Under these
    circumstances, we deem it just and proper to remand the matter back to the
    High Court for consideration of the issue with regard to the maintainability        B
    and the merits of the application filed by the contractor under Order VI Rule
    17C.P.C.

          23. In the result, the appeals filed by the State are allowed to the extent
    indicated above. We may, however, clarify that we have not expressed any            C
    opinion on the merits of the decree passed by the subordinate Judge and
    upheld by the High Court. We keep the issue open. It will be open to the
    parties to take recourse to appropriate proceedings, including revival of the
    present appeals, after the High Court has rendered its decision on the afore-
    noted issue. The parties are, however, left to bear their respective costs.
                                                                                        D
    B.K.                                                    Appeal partly allowed.