Appeal No 1991 of 1971
From the Judgment and Order dated the 29th March 1971 of the Bombay High Court and Bombay in Appeal No 87 of 1970
VM Tarkunde and Rameshwar Nath for the appellant KS Ramamurthy and BR Agarwal for the respondent
The Judgment of the Court was delivered by RAY C J
This is an appeal by certificate from the judgment dated 29th March 1971 of the High Court of Bombay
The appellant filed this suit on 2 September 1964 in the High Court of Bombay and claimed six months salary in lieu of notice and gratuity for 16 years of service
In the year 1965 the appellant asked for discovery by the respondent of documents relating to pension scheme for foreign employees
The application for discovery was dismissed in the month of November 1965
On 16 December 1969 the appellant took out a Chamber Summons for amendment of the plaint
The proposed amendments were twofold
The first set of amendment related to averments in support of the claim for gratuity which had already been alleged in the plaint
553 The second set of amendment related to averments in support of a claim for Rs 850 per month by way of pension as and from 1 February 1964 during the life time of the appellant
By an order dated 19 January 1970 the appellant was allowed to amend the plaint in respect of the claim for gratuity
The appellant s proposed amendment in support of the claim for pension was refused
By summons dated 27 April 1970 the appellant sought an amendment of
the plaint claiming Rs 68000 as damages in relation to his right to pension
By an order dated 6 July 1970 the appellant was allowed to amend the plaint as prayed for
The respondent preferred an appeal against the order dated 6 July 1970
The High Court by judgment dated 29 March 1971 allowed the appeal and set aside the order dated 6 July 1970 allowing the amendment
The appellant repeated the contentions which had been advanced before the High Court
First it was said that no appeal could lie against an order of amendment because it was not a judgment within the meaning of clause 15 of the Letters Patent
Secondly it was said that an order allowing the amendment was a discretionary cider
Therefore the appellate court should not have interfered with the discretion
Counsel for the appellant submitted that judgment  means a decision finally adjudicating the rights between the parties
It was emphasised that a judgment would be a decision on substantive rights of parties Amendment  was submitted to be a procedural right
Counsel for the appellant relied on the decision in Dayabhai vs Murrugappa Chettiar I L R 13 Rang
457 and Manohar vs Baliram ILR 1952 Nag 471 in support of the proposition that judgment  means and is a decree in a suit by which the rights of the parties in the suit are determined
The locus classics is the decision of the High Court of Calcutta in Justice of the Peace for Calcutta vs Oriental Gas Company 8 Bengal LR 433 where Sir Richard Couch C J said We think that judgment  means a decision which affects the merits of the question between the parties by determining some right or liability
It may be either final or preliminary or interlocutory the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined
 This Court in Asrumati Debi vs Kumar Rupendra Deb Raikot  Ors  dealt with the question as to whether an order of transfer of a suit filed in the Jalpaiguri Court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction was a judgment within the meaning of clause 15 of the Letters Patent
it was held that an order for transfer of a suit is not a judgment within the meaning of clause 15 of the Letters Patent as it neither affects the merits of the 554 controversy between the parties in the suit itself nor terminates or disposes of the suit on any ground
This Court in Asrumati Debi s case supra said that a judgment within the meaning of clause 15 of the Letters Patent would have to satisfy two tests
First the judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned
Second the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on the merits
In this context this Court referred to observation of the Full Bench of the High Court of Madras in Tuljaram vs Alagappa ILR
The test formulated by the Madras decision is not the form of the adjudication but its effect on the suit or proceeding in which it is made
The Madras High Court said if the effect is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect if it is not complied with is to put an end to the suit or proceeding the adjudication is a judgment
It may be stated here that the Madras High Court spoke of judgment  on an application in a suit
The decision of the Madras High Court in Tuljaram s case supra was on an order for transfer of a suit under clause 13 of the Letters Patent
This Court also noticed the view expressed by the Madras High Court in Tuljaram s case supra that adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not a judgment within the meaning of the Letters Patent
In Asrumati Debi s case supra this Court noticed the argument advanced that if an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a judgment  under clause 15 of the Letters Patent there was no difference in principle between an order of that description and an order transferring the suit under clause 13 of the Letters Patent
This Court did not express any opinion excepting observing that if leave under clause 12 of the Letters Patent was rescinded the suit would come to an end and if an order was made refusing to rescind the leave the result would be on a vital point adverse to the defendant and it would go to the root of the suit and become final and decisive against the defendant so far as the Court making the order was concerned
In finding out whether any decision is a judgment within the meaning of clause 15 of the Letters Patent each case must be looked into in order to find out as to whether there is a decision determining the right or liability of the parties affecting the merits of the controversy between the parties
It is in that light that this Court in Asrumati Debi s case supra described the order refusing to rescind leave to be within the category of a judgment as laid down in the Calcutta cases though no final opinion was expressed as to the propriety of that view
The present appeal concerns an application for amendment of the plaint
The suit was filed in the year 1964
The application for amendment of the plaint in regard to damages for the right to pension was made in the year 1970
An amendment if allowed  would relate 555 to the date of the institution of the suit
The respondent contended before the trial Court entertaining the application for amendment of the plaint that the amendment should not be allowed inter alia on the ground that the alleged claim was barred by limitation in 1970
The High Court in the present case relied on the decision of the High Court at Calcutta in MB Sarkar  Sons vs Powell  Co AIR 1956 Cal 630
In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant converted into a company in that name
The company so proposed to be substituted complained that the amendment took away from it a valuable right which had accrued to it by efflux of time and therefore the amendment should not be allowed
The contention of the defendant was not accepted by the learned Chamber Judge
The High Court on appeal set aside the order
It was not held to be a case of mis description of the defendant
A mis description of a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis description in the cause title
In such a case it would not be adding a new party or substituting a new party for the original one but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description
When the same person whether an individual or a legal entity remains the defendant but only the name is altered it would be a case of mis description
Where a new legal entity is substituted it was held in the M B Sarkar case supra that substitution of a company for a firm would be a change of a substantial character affecting the right of a party
The effect of the amendment in the M B Sarkar case supra was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time
Chakravartti CJ in the M B Sirkar case supra said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent
The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability
A right is an averment of entitlement arising out of legal rules
A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law
Immunity in short is no liability
It is an immunity from the legal power of some other person
The correlative of immunity is disability
Disability means the absence of power
The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim
The respondent has acquired by reason of limitation immunity from any liability
The views of the High Courts at Calcutta and Madras with regard to the meaning of judgment  are with respect preferred to the meaning of judgment  given by the Rangoon and Nagpur High Courts
556 We are in agreement with the view expressed by the High Court at Calcutta in the M B Sirkar case supra as to when an order on an application for amendment can become a judgment with in the meaning of clause 15 of the Letters Patent
If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise farther contentions in the suit but it is not decided whether the contentions are right
Such an amendment does nothing more than regulate the procedure applicable to the suit
it does not decide any question which touches the merits of the controversy between the parties
Where on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation it is a judgment within the meaning of clause 15 of the Letters Patent
The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation
It is the final decision as far as the trial court is concerned
In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability
The right or liability is to be found out by the court
The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability
The appellant made an application in December 1969 for amendment of the plaint to claim pension
Those amendments were disallowed by the learned Chamber Judge
Four months thereafter the appellant sought to amend the plaint by adding certain paragraphs and those amendments were in relation to the appellant s alleged claim for pension
The appellant submitted that the second application for amendment in regard to the claim for a mortised amount of damages in relation to pension was not the same as the first application
It was said on behalf of the appellant that if the learned Judge allowed the application the appellate court should not have interfered with the discretionary order
The amendment order is not purely of discretion
Even with regard to discretionary orders the appellate court can interfere where the order is insupportable in law or is unjust
The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment
In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time because the court found that consideration of lapse of time is out weighed by the special circumstances of the case
See Charan Das vs Amir Khan 47 IA 255
The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim
For these reasons the judgment of the High Court is upheld
The appeal is dismissed with costs
VPS Appeal dismissed


Summary:
The appellant filed the suit against the respondent in 1964 on the original side of the High Court claiming six months salary in lieu of notice and gratuity
An application for amendment of the plaint in regard to damages for the right to pension was made in 1970
The respondent contended that the amendment should not be allowed on the ground inter alia that the alleged claim was barred by limitation in 1970
The trial Court allowed the amendment but in appeal under Cl 15 of the Letters Patent the order was set aside
The High Court considered the application for amendment to be a new claim based upon a new set of facts which became barred on the date of the application for amendment
In appeal to this Court it was contended that 1 the order of the trial Court was not a judgment and hence not appealable under Cl 15 and 2 the order was a discretionary order and the appellate Court should not have interfered with the exercise of discretion
Dismissing the appeal HELD  1 A judgment within the meaning of Cl
15 would have to satisfy two tests a it must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned and b it must involve the determination of some right or liability though it may not be necessary that there must be a decision on the merits
554 B In finding out whether any decision is a judgment within the meaning of Cl 15 each case must be looked into in order to find out whether there is a decision determining the right or liability of the parties affecting the merits of the controversy between the parties
It is not the form but the nature of the order that has to be examined in order to ascertain whether there has been a determination of any right or liability
If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit but it is not decided whether the contentions are right
Such an amendment does nothing more than regulate the procedure applicable to the suit and does not touch the merits of the controversy between the parties
Where on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation it is a judgment within the meaning of Cl 15
The reason why it becomes a judgment is that it is a decision
affecting the merits of the question between the parties by determining the right or liability based on limitation
It is the final decision as far as the Court is concerned
The respondent in the present case has acquired by reason of limitation immunity from liability and the appellant because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim
554 B C G 555F H556A C 2 The order of the trial Court is not one purely based on discretion and even with regard to discretionary orders the appellate Court can interfere where the order is unsupportable in law or is unjust
The High Court was right in holding that there we re no special circumstances to entitle the appellant to introduce the claim by amendment
556F Asrumati Debi vs Kumar Rupendra Deb Raikot  Ors
1953 section C R 1159 followed
Justice of the Peace for Calcutta vs Oriental Gas Company 8 Bengal L R 433 Tuliaram vs Alagappa 1
L R 35 Mad
J M B Sirkar  Sons vs Powell  Co AIR 1956
630 approved
Charan Das vs Amir Khan 47 1
A 255 referred to
Dayabhai vs Murugappa Chettiar I L R 13 Rang
457 and Manohar vs Bailram IL R  overruled
551 For the appellant On the first point an order allowing amendment is not a Judgment within the meaning of clause 15 of the Letters Patent
Divergent views have been taken by various High Courts as to the meaning of word Judgment
This question came before this Court also in the case of Asrumati devi  1953 SCR II 59 where a question arose whether an order for transfer of a suit under clause 13 of the Letters Patent Calcutta High Court is not a Judgment within the meaning of clause 15 of the Letters Patent and this Court took the view that an order of this character could not be regarded as a Judgment  but it did not determine the true meaning and scope of the word Judg ment nor did it resolve a wide divergence of judicial opinion on the subject
An order to be a Judgment  in Cl
15 of the Letters Patent must either determine some right or liability which is in controversy in the suit either partially or wholly or it should terminate the proceedings even without deciding any right or liability in controversy
Any wider definition of the word Judgment  will make all orders appealable irrespective of their nature and irrespective of the proceeding in which they are passed
An interim order which does not determine any substantive right or liability in controversy ie does not grant or refuse any part of the relief prayed for in a suit but decides a procedural right however important is not a judgment 
An order allowing the amendment does not decide any substantive right or liability
It only permits a claim to be agitated and does not decide the claim and therefore the order of the single judge was not appealable
Justice of the Peace for Calcutta vs The Oriental Gas Co 8 Bengal LR 433 Tuljaram vs Alagappa Chelter ILR 35 Mad IILR Rang 457 and ILR referred to
On the second point it is settled law that an appellate Court will not interfere with such an order passed by the trial Court in exercise of its discretion without exceeding the limits of its power unless it acted perversely or unless the view taken by it is clearly wrong
The amendment sought for became necessary as on the true and full dis closure of the terms of Pension Rules the Appellant was found to be entitled to damages in lieu of pension
The principle of res judicata did not apply as the earlier order of the Single Judge allowing the first amendment application partly on 19 1 1970 did not deal with the claim for mortised damage now sought to be added
For the Respondent There is no need to go into the larger question because judged by the tests laid down by all the High Courts including the Nagpur High Court the decision of the trial Court in the instant case allowing the amendment is a judgment within the meaning of Cl 15 of the Letters Patent
By reason of the amendment of the plaint the claim made in the amended plaint dates back to the date of the plaint
The application for amendment was filed in April 1970 and by that time the claim for pension was clearly barred by limitation
By allowing amendment the valuable right which had accrued to the defendant to resist the claim for pension has been lost the defendants cannot therefore once the amendment is allowed raise the plea of limitation
There is a clear negation of valuable right of 552 the defendant which is undoubtedly a determination of right or liability as between the two parties
There is difference between the amendment which does not take away the right of the defendant to plead limitation and an amendment which affects the rights of the defendants to raise the plea of limitation 1946 Calcutta 630 1946 Bom 361 AIR 1972 Bombay 27  1967 2 MLJ FB referred to
35 Madras at p 9 lays down the law that the fact that the order is one allowing the amendment is not decisive and that if in any proceeding the defendants could have succeeded by the Court passing an order as prayed for that itself is sufficient to make a decision a judgment and the fact that the defendant s contention was negatived ie an order prayed by him was not passed does not make the decision any the less a judgment under Cl
15 29 Bombay 249 253 in   1168
70 Ca
WN 670  referred to
By allowing the amendment the right is conferred upon the plaintiff and it carries with it the fastening of liabilities upon the defendants
The decision on a vital points adverse to the defendant which goes to the root of the matter and which becomes final and conclusive so far as the court passing of the order is concerned would amount to a Judgment because the order is to the effect that the plaintiff is entitled to make the claim negativing the right of the defendants which has accrued to him by lapse of time