Case: Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil And Others

1. This is an appeal by special leave from judgement and decree of the High Court of Bombay dated 6-9-1951, by which the said High Court set aside on appeal the decree passed by the Civil Judge (Senior Division) Kolhapur, in civil suit No. 23/49 and allowed an amendment of the plaint at the appellate stage, subject to certain conditions, in the circumstances stated below2. The appellant before us was defendant 1 in the suit. Respondents 1 and 2 are the heirs of the original plaintiff and respondent 3 was defendant 2 in the action. In 1942 the original plaintiff filed a suit against respondent 3 for possession of the suit properties and obtained a decree in ejectment on 28-3-1944. This decree was confirmed in appeal on 9-7-1945. On a further appeal, the then Supreme Court of Kolhapur affirmed the decree on 2-4-1946. In the mean-time, the original plaintiff made an application for execution of the decree but was resisted or obstructed by the present appellant in obtaining a possession of the said properties. He then made an application under O. 21, R. 97, Civil P. C. complaining of such resistance or obstruction. This application was heard and dismissed under O. 21, R. 99, Civil P.C., on 12-4-1947. On 12-3-1948 the original plaintiff instituted the suit (out of which this appeal has arisen) under O. 21, R. 103 Civil P. C., for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as defendant 13. Prior to its amendment, the plaint stated: "Defendant 2 in collusion with defendant 1 caused objection to be submitted against the said execution. The plaintiff had conducted Misc. Suit No. 5/1946 for getting the objection of the suit properties, getting the objection removed. However, that miscellaneous proceeding has been decided against the plaintiff. Therefore, the plaintiff has filed the present suit for getting declared that the plaintiff has right to take possession of the suit property against defendants 1 and 2."Apart from the decree obtained in the earlier suit, no particular averments were made as to the facts or grounds on which the plaintiff based his title to the properties in suit as against the appellant. An application was made on behalf of the present appellant on 20-11-1948, in which it was pointed out that the plaintiff filed the suit on the basis of the decision in an earlier suit to which the present appellant was not a party. It was then stated:"As the defendant is not a party in the said decree, the plaintiff will not acquire any ownership whatever against the defendant from the said decree. And the plaintiff has not given even the slightest explanation as to how he was ownership against the defendant. So permission should not be hereafter given to the plaintiff to make amendment in respect of showing ownership."A copy of this application was made over to the learned pleader for the plaintiff who noted thereon as follows:"The plaintiffs suit is under O. 21, R. 103, Civil P.C. Hence relief which can be granted as per this provision may be granted."An objection was also taken with regard to the description of the suit properties in the schedule. This objection was however met by making the necessary amendment4. On 20-12-1949, the present appellant filed his written statement and, inter alia, took the objection that the suit was not maintainable against him, as the plaint disclose no cause of action so far as he was concerned. A preliminary issue was then struck on 19-1-1950, which raised the question whether the suit as framed was tenable against the appellant. When the trial of this issue began, an application was made on 29-3-1950, on behalf of the original plaintiff for permission to give further and better particulars of the claim made in the plaint, and for that purpose the plaintiff wanted to insert a new paragraph be Para.1 (a) in the plaint and a few sentences in Para3. It is necessary to quote these here because these were the amendments subsequently allowed by the learned Judges of the High Court of Bombay by their order dated 6-9-1951. The new paragraph was in these terms:"In the Ichalkaranji village there are two independent Patil families taxima. viz., Mulki (Revenue) Patil and Police Patil. The suit properties are the Imam lands in the Police Patil family. A woman by name Bhagirathibai wife of Shivagonda Patil was Navwali Warchi Vatandar (respective Vatandar) of the Police Patil family. The woman died in the year 1936. Due to the death of the woman the plaintiff acquired heirship - ownership over the suit property as the near heir. The suit properties were in the possession and under the vahiwat of defendant 2 without right. Therefore the plaintiff filed suit No. 3/ 1942 for getting declared his ownership of the suit property and for getting the possession thereof. In Appeal No. 5/46 preferred therefrom the plaintiff was unanimously declared to be the heir and the owner and the possession of the suit properties has been granted to the plaintiff."The sentences to be added to Para. 3 were:"Defendant 1 is from the Mulki (Revenue) Patil family. He has nothing to do with the suit property in the Police Patil family."5. By his order dated 31-3-1950, the learned Civil Judge rejected the application and on the same day he dismissed the suit on the ground that the plaint made out no case of title against defendant 1, appellant before us, who was not a party to the earlier Suit in ejectment in which the plaintiff had obtained a decree against defendant2. From this judgment and decree of the learned Civil Judge an appeal was taken to the High Court of Bombay and the learned Judges of the High Court allowed an amendment of the plaint after putting the plaintiff on terms as to costs, etc. While allowing the amendment the learned Judges observed:"We realise that by doing what we propose to do we may deprive defendant 1 of a very valuable right which he claims he has acquired, namely, that of pleading a bar of limitation against the amended plaint, but we are guided more in this matter by regard to the principles of substantial justice and we think that if we can make sufficient compensation to the first defendant by making drastic orders of costs in his favour and against the plaintiff, we shall not be doing any injustice to him. This is, after all, a question of title to the property and we would be justified in making this observation that when the suit in ejectment was filled by Shigonda against Pirgonda Annappa in the year 1942 he based it on his title to suit property and it was only against Pirgonda Annappa that he had obtained the decree. When this decree which he had obtained against Pirgonda Annappa, the second defendant, was mentioned as a starting point in the plaint as it came to be filed, it would not be stretching too much of a point in favour of the plaintiff to observe that the decree which he had obtained against the second defendant having been obtained on the strength of his title to the suit property, was really one of his documents of title ........... So far as the first defendant was concerned, the averment necessary under O.21. R. 103, Civil P. C. was that the first defendant was wrongfully obstructing the plaintiff from obtaining possession of the suit property in execution of the decree which he had obtained against the second defendant in a suit regularly constituted in that behalf. This being the position, we think we are not doing injustice to the first defendant if we allow the plaintiff to amend his plaint even at this late stage by putting in the paragraph in the plaint as suggested by him in his application for further and better particulars filed in March 1950."6. The appellant then obtained special leave from this court, and filed the present appeal.

Reasoning:
We think that the correct principles were enunciated by Batchelor J. in his judgement in the same case, viz., 33 Born. 644 at p. 655 (c), when he said at pp. 649-650:"All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"Batchelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4001. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.