Judgment Case ID: 466

Judgment:
Appeal No. 228 of 1953. Appeal by special leave from the Judgment and Decree dated September 6	1951	 of the Bombay High Court in Appeal No. 496 of 1950 from the Judgment and Decree dated March 31	 1950	 of the Civil Judge	 Senior Division	 Kolhapur in Civil Suit No. 23 of 1949. section C. Isaacs	 section N. Andley	 Rameshwar Nath and J. B. Dadachanji	 for the appellant. Achhru Ram	 G. A. Desai and Naunit Lal	 for respondents Nos. 1 and 2. 1957. February 7. The Judgment of the Court was delivered by section K. DAS J. This is an appeal by special leave from the judgment and decree of the High Court of Bombay dates September 6	 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 below. The appellant before us was defendant No. 1 in the suit. Respondents 1 and 2 are the heirs of the original plaintiff and respondent No. 3 was defendant No. 2 in the action. In 1942 the original plaintiff filed a suit against respondent No. 3 for possession of the suit properties and obtained a decree in ejectment on March 28	 1944. This decree was confirmed in appeal on July 9	 1945. On a further appeal	 the then Supreme Court of Kolhapur affirmed the decree on April 2	 1946. In the meantime	 the original plaintiff made an application for execution of the decree but was resisted or 597 obstructed by the present appellant in obtaining possession of the said properties. He then made an application under XXI	 r. 97 of the Code of Civil Procedure	 complaining of such resistance or obstruction. This application was heard and dismissed under 0.XXI	 r. 99 of the Code of Civil Procedure	 on April 12	 1947. On March 12	 1948	 the original plaintiff instituted the suit (out of which this appeal has arisen) under 0.XXI	 r. 103 of the Code of Civil Procedure	 for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as the first defendant. Prior to its amendment	 the plaint stated: "Defendant No. 2 in collusion with defendant No. 1 caused objection to be submitted against the said execution. The plaintiff had conducted misc.Suit No. 5/1946 for getting possession 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 Nos.I 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 November 20	 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 has 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 plaintiff 's suit is under 0.XXI	 r. 103 of the Code of Civil Procedure. Hence relief which can be 598 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 amendment. On December 20	 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 disclosed no cause of action so far as he was concerned. A preliminary issue was then struck on January 19	 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 March 29	 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 as para 1(a) in the plaint and a few sentences in para 3. 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 September 6	 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 Inam lands in the Police	 Patil family. A woman by name Bhagirathibai	 wife of Shivagonda Patil	 was the Navwali 'warchi Vatandar ' (representative Vatandar) of the Police Patil family. This 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 No. 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. 9/44 and Supreme 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 had been granted to the plaintiff. " The sentences to be added to paragraph 3 were: " Defendant No. 1 is from the Mulki 599 (Revenue) Patil family. He has nothing to do with the suit property in the Police Patil family. " By his order dated March 31	 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 No. 1	 appellant before us	 who was not a Party to the earlier suit in ejectment in which the plaintiff had obtained a decree against defendant No. 2. 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 the first defendant 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 filed by Shidgonda against Pirgonda Annappa in the year 1942 he based it on his title to the 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 0 XXI	 r. 103	 of the Code of Civil Procedure	 was that the	 first defendant was wrongfully obstructing 600 the plaintiff from obtaining possession of the suit property in execution of the decree which he had obtained against the 2nd defendant in a suit regularly constituted in that behalf. This being the position	 we think we are not doing any injustice to the first defendant if we allow the plaintiff to amend his plaint even at this late stage by putting in the paragraphs in the plaint as suggested by him in his application for further and better particulars filed in March 1950." The appellant then obtained special leave from this Court	 and filed the present appeal. The main point which has been argued before us on behalf of the appellant is that in the circumstances of this case the learned Judges of the High Court were wrong in allowing an amendment of the plaint at such a late stage. It may be stated here that learned counsel for the appellant did not argue that the appellate Court had no jurisdiction or power to allow the amendment. His submission was that even though the appellate Court had such power or ' jurisdiction	 that power should not have been exercised in the circumstances of the present case. Two such circumstances were greatly emphasised before us. One was that the period of limitation for a suit under 0.XXI	 r. 103	 of the Code of Civil Procedure	 had already expired before March 29	 1950	 on which date the application for amendment or for giving further and better particulars was made. The second circumstance which learned counsel for the appellant emphasised was that the attention of the plaintiff to the defect in the original plaint had been drawn by the application filed on behalf of the appellant on November 20	 1948	 and in spite of that application	 no amendment war	 asked for till March 29	 1950. Both these circumstances were fully considered by the learned Judges of the High Court. It is worthy of note that the period of limitation for a suit under 0.XXI	 r. 103 of the Code of Civil Procedure	 namely	 one year from the date of the adverse order made under r. 99 of 0.XXI	 bad expired some time before November 20	1948	 on which date the appellant made 601 his first application pointing out the defect in the plaint	 the adverse order under 0.XXI	 r. 99	 having been made on April 12	 1947. The application which the appellant made on November 20	 1948	 had not the merit of such beneficent purpose as is now sought to be made out by learned counsel for the appellant. When the application was made	 the period of limitation had already expired	 and the appellant very clearly said that no permission should be given to the plaintiff to make an amendment thereafter. We do not therefore think that the appellant can make much capital out of the application made on his behalf on November 20	 1948. Recently	 we have had occasion to consider a similar prayer for amendment in L. J. Leach & Co. vs Jardine Skinner & Co. (1) where	 in allowing an amendment of the plaint in an appeal before us	 we said: " It is no doubt true that courts would	 as a rule	 decline to allow amendments	 if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered	 and does not affect the power of the court to order it	 if that is required in the interests of justice." "	 These observations were made in a case where damages were	 originally claimed on the footing of conversion of goods. We held	 in agreement with the learned Judges of the High Court	 that on the evidence the claim for damages on the footing of conversion must fail. The plaintiffs then applied to this Court for amendment of the plaint by raising	 in the alternative	 a claim for damages for breach of contract for non delivery of the goods. The application was resisted by the respondents and one of the grounds of resistance was that the period of limitation had expired. We accepted as correct the decision in Charan Das vs Amir Khan (2) which laid down that " though there was full power to make the amendment	 such a power should not	 as a rule be exercised where the effect was to take away from a defendant	 a legal right which had accrued to him by (1) ; 	 (2) [1920] L.R. 47 I.A. 255. 602 lapse of time; yet there were cases where such consi derations were outweighed by the special circumstances of the case ". As pointed out in Charan Das ' case (1)	 the power exercised was undoubtedly one within the discretion of the learned Judges. All that can be urged is that the discretion was exercised on a wrong principle. We do not think that it was so exercised in the present case The facts of the present case are very similar to those of the case before their Lordships of the Privy Council. In the latter	 the respondents sued for a declaration of their right of pre emption over certain land	 a form of suit which would not lie having regard to the proviso to section 42 of the Specific Relief Act (I of 1877). The trial Judge and the first appellate Court refused to allow the plaint to be amended by claiming possession on pre emption	 since the time had expired for bringing a suit to enforce the right. Upon a second appeal the Court allowed the amendment to be made	 there being no ground for suspecting that the plaintiffs had not acted in good faith	 and the proposed amendment not altering the nature of the relief sought. In the case before us	 there was a similar defect in the plaint 	 and the trial Judge refused to allow the plaint to be amended on the ground that the period of limitation for a suit under 0.XXI	 r. 103	 of the Code of Civil Procedure	 had expired. The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought. Learned counsel for the appellant referred us to the decision in Kisandas Bupchand vs Rachappa Vithoba and placed great reliance on the observations of Beaman J. at P. 655: " In my opinion	 two simple tests	 and two only	 need to be applied	 in order to ascertain whether a given case is within the principle. First	 could the party asking to amend obtain the same quantity of relief without the amendment ? If not	 then it follows necessarily that the proposed amendment places the other party at a disadvantage	 it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second	 in those circumstances	 can the party thus placed at a disadvantage be compensated for it by costs ? If not	 then the amendment ought not	 unless the case is so peculiar as to be taken out of the scope of the rule	 to be allowed. " He contended that the first test laid down in the aforesaid observations was not fulfilled in the present case. We do not agree with this contention. First	 it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula. Second 	 we do not think that the " quantity of relief	 an expression somewhat difficult of appreciation or application in all circumstances, was in any way affected by the amendments allowed to be made in this case. What happened in the present case was that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he asked for; that defect was removed by the amendments. The quality and quantity of the reliefs sought remained the same; whether the reliefs should be granted or not is a different matter as to which we are not called upon to express any opinion at this stage. We think that the correct principles were enunciated by Batchelor J. in his judgment in the same Case, ViZ., Kisandas Rupchand 's case(1), 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 amendments 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. 4	001. At that date the claim for the money was barred by limitation. It was held that the amendment was rightly allowed	 as the claim was not a new claim. 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. For these reasons	 we see no I merit in the appeal	 which is accordingly dismissed with costs. Appeal dismissed.

Summary:
section obtained a decree of	 ejectment against the third respon dent and while attempting to take possession of the properties ir execution of the decree he was obstructed by the appellant and the application for removal of the obstruction was dismissed by the Court on April 12	 1947. He thereupon filed the present suil on March 12	 1948	 under 0. XXI	 r. 103	 of the Code of Civil Procedure	 for a declaration that he was entitled to recovery possession of the suit properties	 impleading the appellant and the third respondent. In the plaint	 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 suit properties as against the appellant. Both in his application dated November 2o	 1948	 and in his written statement	 the appellant	objected to the maintainability of the suit on the grounds that he was not a party to the previous suit and that the plaint disclosed no cause of action against him. On March 20	 1950	 when the suit was taken up for trial on the preliminary issue as to whether the suit as framed was tenable	 an application was made by the plaintiff for the amendment of the plaint by giving further and better particulars of the claim made in the plaint. The trial judge rejected the application and dismissed the suit	 but the High Court	 on appeal	 allowed the application. The appellant appealed by special leave and contended that the application for amendment should not have been allowed because (1) on the date of the application for amendment	 the period of limitation for a suit under 0. XXI	 r. 103	 Code of Civil Procedure	 had already expired	 and (2) though the attention of the plaintiff to the defect in the original plaint 'had been drawn as early as November 2o	 1948	 no application for amendment was made till. March 29	 1950. Held	 that the application for amendment was rightly allowed by the High Court	 because the amendments did not really introduce any new case nor alter the nature of the reliefs sought	 and	 though the application was made after the expiry of the period of limitation for a suit under 0. XXI	 r. 103	 Code of Civil Procedure	 the appellant did not have to 77 596 meet anew case and 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. Charan Das vs Amir Khan (L. R. 47 I.A. 255)	 relied on. L. J. Leach & Co. vs Jardine Skinner & CO. ([1957] S.C.R. 438)	 followed. Observations of Batchelor J. in Kisandas Rupchand vs Rachappa Vithoba (I.L.R. 	 649)	 approved.