Case: Shanti Kumar R. Canji Vs. The Home Insurance Co. Of New York

3. 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, 1965.4. On 16 December, 1969 the appellant took out a Chamber Summons for amendment of the plaint. The proposed amendments wereThe first set of amendments related to averments in support of the claim for gratuity which had already been alleged in the plaint. The second set of amendments 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.5. By an order dated 19 January, 1970 the appellant was allowed to amend the plaint in respect of the claim for gratuity. The appellants proposed amendment in support of the claim for pension was refused.6. By summons dated 27 April, 1970 the appellant sought an amendment of the plaint claiming Rupees 68,000 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.7. 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.

Reasoning:
15. 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 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 1970.16. The High Court in the present case relied on the decision of the High Court at Calcutta in M. B. Sirkar and Sons v. Powell and 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 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 ofof the defendant. Aof 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 inaccuratein 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 ofWhere a new legal entity is substituted, it was held in the M. B. Sirkar 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. Sirkar 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. Chakravarti, C. J. in the M B. Sirkar (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.17. 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 rights 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.18. 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. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case, AIR 1956 Cal 630   (supra) as to when an order on an application for amendment can become a judgment within 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 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. 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.19. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters 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 oramendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interefere 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 on 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 outweighed by the special circumstances of the case. (See Charan Das v. Amir Khan 47 Ind App 255 = (AIR 1921 PC 50). The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim.