VIACOM18 MEDIA PVT. LTD Vs MSM DISCOVERY INDIA PVT. LTD.

G.D. Gaiha

Viacom 18 Media Pvt. Ltd. hereinafter (referred to as the petitioner) has filed an application for amendment of the petition purported to be under Order VI Rule 17 of the Code of Civil Procedure, 1908 praying inter-alia for leave to amend some portions of paragraphs 1, 13 and 17 and prayer E thereof.

2. MSM Discovery Pvt. Ltd., (hereinafter referred as ‘the Respondent’) the Petitioner in Petition No.250 (C) of 2010 has filed three applications which are as under:- (i) In M.A. No. 281 of 2010, the respondent has inter-alia prayed for amend the petition with a reserving right in terms of Order II Rule 2 of the Code of Civil Procedure. (ii) M.A. No. 305 of 2010 has been filed praying for amendment by incorporating claims of General and also Special damages. (iii) M.A. No. 306 of 2010 has been filed purported to be claiming damages for which the respondent had reserved its right under Order II Rule 2 of the Code of Civil Procedure.

At the outset, it may be placed on record that no opposition having been raised in the respondent’s application for amendment of the petition, the same would stand allowed, namely, M.A. No. 305 of 2010. In that view of the matter, the prayer for grant of leave under Order II Rule 2 of the Code of Civil Procedure as had originally been prayed for in M.A. No. 281 of 2010 and M.A. 306 of 2010, in our opinion become infractuous. They are dismissed accordingly.

3. Mr. Sundaram, the learned senior counsel appearing on behalf of the respondent in Petition No.220(C) of 2010 however, would strongly oppose the application for amendment filed by the petitioner.

4. The amendments sought to be effected in para 1, 13 and 17 relate to change in the figures of damages from Rs.127 crores to Rs.168 crores. In para 1 of the petition, the petitioner has prayed for substitution of Rs.168 crores (approx.) in stead and in place of Rs. 127 crores.

Para 13 of the prayer for amendment reads as under:- “The actions, inactions and conduct of the respondent as stated herein above have resulted in substantial damage to the petitioner to the tune of Rs127168 crores (approx.) out of which 75 crores is attributable to loss of business on digital platforms and Rs.42 crores is attributable to loss of business on analogue platform.”

Similarly, in para 17 in stead and in place of Rs. 127 crores, prayer has been made for substitution of the words and figures by 168 crores.

5. Mr. Sundaram would contend that as no right subsists for amending a plea in terms of the Order II Rule 2 of the Code of Civil Procedures after the petition has been filed, it must be held that this Tribunal has no jurisdiction to allow an application for amendment of the petition in terms of Order VI Rule 17 of the Code of Civil Procedure read with Order II Rule 2 thereof.

Strong reliance in this behalf has been placed on in decision of the Nagpur High Court in Sobhagsingh Yashwantsingh Bhilala Jamindar Vs. Ranjitsingh Bhairaosingh Bhilala Jamindar reported in AIR 1943 Nag 293.

6. Mr. Sundaram urged that Order II, Rule 2 of the Code of Civil Procedure does not postulate an action to delete one of the claims from original ‘suit’. Strong reliance in this regard has been placed on a Privy Council decision in Mohd. Hafiz & another Vs. Mirza Mohd. Zakaria & Ors 1922 Privy Council page 23. (1922) LR.49.I.A.9.

Mr. Sundaram, has also placed reliance on Code of Civil Procedure by Mullah at page 1038.

7. Mr. Kathpalia, the learned counsel appearing on behalf of the petitioner, on the other hand, would strongly contend that while claiming damages, the amount is not required to be quantified by the petitioner.

The power to amend a petition vested in this Tribunal by reason of the provisions of the TRAI Act 1997 (the Act) is inherent. The provisions of the Code of Civil Procedure stricto sensu are not applicable. It is, however, neither denied nor disputed that every Tribunal which for all intent purport is a Court is inherent jurisdiction to allow such applications for amendment being incidental to its main power so as to enable it to do complete justice to the parties. We may notice that by reason of Sub-section 7 of Section 14 A of the Act, this Tribunal has been conferred jurisdiction even to call for records from the Regulators having regard to the necessity to dispose of such applications or appeals and make such orders as it may deem fit.

The power of this Tribunal, therefore, is of wide in nature.

It is entitled to lay down its own procedure.

However, the provisions of Code of Civil Procedure, 1908 may for certain purposes be followed by the Tribunal.

Order II Rule 2 of CPC provides for frame of ‘suit’.

It prescribes that ‘suit’ to include the whole claim.

The said provision reads thus :- “Rule 2. Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs – A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”

Indisputably, the object of the aforementioned provision is to prevent further litigation between the same parties. It is for that purpose only, it has been provided that every suit shall include whole of the claim which the plaintiff is entitled to make should be in respect of the whole of the claim.

The bar contained in Sub-rule 3 that the plaintiff would not afterwards file a fresh suit, does not apply to the suits which are simultaneous and not successive.

It only applies to cases where the suit has been filed and the plaintiff omits in such suits to make claim in respect of any portion of the same.

It, however, appears from a judgment of the Calcutta High Court in Upendra Vs. Janaki 1918 Calcutta page 305 that even a second suit would not be barred so long a decree is not passed and thus the plaint may be allowed to be amended.

8. Relinquishment of a portion of the plaint however, ipso facto is not barred but what is not permitted is to relinquish a claim, so as to take away the jurisdiction of the court. Such was the position in Sobhag Singh (Supra). In that case, the suit was heard by the Subordinate Judge upon representation of the plaint in the said court, which had been returned from the court of the Additional District Judge.

An application for amendment was filed contending that the plaintiff would not be able to establish the amount of income for the years 1927 to 1931 and therefor filed an application for permission to abandon its claim for those years estimating its value thereof to be Rs.4,000/-; as a result, whereof the original valuation of the suit namely, for Rs.9,477/- was sought to be reduced.

It was frowned upon by the Nagpur High Court, stating :- “We would put the matter in this way: The object of an amendment is to enable the court, before whom a case is pending, to do justice between the parties in a trial of the case, and not to take the case away from the court which has jurisdiction. In cases of valuation as a result of contest of as a result of the discovery of a mistake it may be found that a suit is undervalued. In such a case the suit need not be dismissed on the ground that it has not been filed under Section 15, Civil P.C., in the Court of the lower grade competent to try it, but it is proper to pass an order which enables the plaintiff to take his suit to the lower court in order to have it tried on merits. Here the position is that no question of the correctness of the valuation has ever arisen and the plaintiff has discovered no error in his valuation. The suit as instituted was properly valued, and later the plaintiff has applied to withdraw a part of his claim. Now it is contended by the learned advocate for the respondent that in view of Order 2, Rule 2, he is entitled after the suit has been filed to avail himself of that provision. Order 2, Rule 2(1) is as follows:- Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

In our judgement Order 2, Rule 2 (1) deals with the frame of the suit and does not refer to a case of abandonment of part of the claim after the suit is filed or impose on any court an obligation to allow a plaint to be amended. If Order 2, Rule 2 (1) applied to proceedings after the suit was filed, a plaintiff who anticipated an adverse result after the evidence was almost concluded, would have an absolute right to relinquish part of his claim and obtain an amendment of the plaint and take the case into another court where the deficiencies in his evidence could be supplied at a new trial. We therefore do not consider that the right given by Order 2, Rule 2(1) subsists after the plaint has been filed. This being so, what is the position? The plaint is valued correctly and is filed in the proper Court and that of the Additional District Judge. The plaintiff wishes to withdraw from his claim the amount of profits of the first four years, on the ground that he cannot prove them. In the circumstances there is nothing whatever to prevent the suit from proceeding, and any amendment of the plaint is wholly unnecessary in order to do justice to the parties and proceed with the trial. It was contended by the learned advocate for the respondent that the amendment sought fell within the purview of Section 153, Civil P.c. which is as follows:- 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. Here there is no defect or error; nothing is necessary in order to determine the real questions or issues raised in the case. The learned advocate for the respondent also relied on the inherent power of the Court under Section151 to allow an amendment and referred to certain decisions which deal, with the curing of the defects in the plaint. But why resort to inherent power when such resort is wholly unnecessary? In fact the only justification for amendment would be that Order 2, Rule (1) entitled the plaintiff to obtain it.”

It was in the aforementioned factual matrix of the matter it was held that such relinquishment of the part of the game in terms of the Order 2 Rule 2 (1) of the Code of Civil Procedure can not be allowed.

9. The said decision, therefore, has no application to the fact of the present case. It is a case where the petitioner has relinquished its claim as such. According to it only one part of its claims by way of damages may not be pursued but the quantum of damages on the other head should be enhanced.

The application for amendment of the petition, therefore, relates to the quantum of damages and not de’hors the same.

We do not, thus, find any reason as to why the application for amendment should not be allowed.

The decision of the Privy Council in Mohammed Hafiz (Supra) again is distinguishable on facts. Therein the provisions of Order II Rule 2 C.P.C. was clearly attracted and in that view of the matter, it was held that cause of action in both the suits were the same stating:- “What was the cause of action that the plaintiffs possessed when the proceedings were first instituted? It was the cause of action due either to the fact that the interest had been unpaid for more than six months or that the three years had elapsed, and the principal was also unpaid, and in either case they could have sued for realization to provide for the whole amount secured by the deed.”

10. Mr. Sundaram would urge that Mohammad Hafiz (Supra) was noticed by the Supreme Court of India in Sidramappa Vs. Rajashetty reported in AIR 1970 SC page 1059.

However from a perusal of the decision of the Apex court, it would be evident that what was considered therein was the meaning of the words ‘cause of action’ for which ‘suit was brought’.

It was opined:- “Cause of action is a cause of cause which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.”

11. There cannot be any quarrel with that proposition of Law but it is difficult to agree with Mr. Sundaram that the Privy Council decision has been approved by the Supreme Court of India on the present controversy. Submission of Mr. Sundaram that Order II Rule 2 cannot be applied after the suit is instituted, in our opinion cannot be accepted keeping in view the fact that subject to any specific order which passed in that behalf a plaint when directed to be amended, and having regard to ‘Doctrine of Relation Back’ the amended plaint shall be deemed to relate back to the date of institution of suit.

12. Yet again, the provisions of amendment of pleadings except where it comes within the purview of the ‘proviso’ appended to Order VI Rule 17 of the Code of Civil Procedure should be liberally construed.

13. The question relates to quantum of damages. It will depend upon the pleadings of the parties and which would be the actual amount of damages which may be found to be payable by the respondent to the petitioner or vice-versa, must be determined on evidence. The respondent herein shall be entitled to file an amended written statement. It would be entitled to adduce its own evidence.

14. Considering the facts and circumstances of the case, and as according to the petitioner, it has since discovered that the actual quantum of damages would be more than what was originally claimed, we do not find any reason as to why the application for amendment of the petition should not be allowed.

The Miscellaneous application filed by the petitioner being M.A. No. 285 of 2010 is allowed as we are satisfied that the respondent shall not in any way prejudiced thereby, whatsoever. The petitioner may file an amended petition if not already done, within two weeks.

The respondent may file additional reply thereto within two weeks, thereafter.

There shall however, in the fact and circumstances of this case, be no order as to costs.

Put up on 6th January, 2011 for framing of issues in both the matters.

……………….J (S.B. Sinha) Chairperson

…………………. (G.D. Gaiha) Member

…………………. (P.K. Rastogi) Member

HKC/