BALBIR SINGH Vs. SMARTS PRIVATE LIMITED

JUDGEMENT

(1.) This revision under section 115 of the Code of Civil Procedure is directed against the order of a learned Subordinate Judge 1st Class dated 12/8/1968 allowing amendment of the plaint under Order 6, Rule 17 and section 151, Civil Procedure Code. It was stated by the plaintiff that the mistake sought to be remedied was merely typographical or clerical in nature. The amendment, it may be pointed out, was sought to vary the number of the chit from S. A. 15/25 to S. A. 15/24. The trial Court, after hearing the parties, agreed with the plaintiff's submission that the mistake was merely typographical and clerical in nature. So holding, the amendment was allowed on payment of Rs. 40 as costs. I am informed by the learned counsel for the respondent appearing in this Court that two defendants have accepted the costs and acquiesced in the impugned order and one defendant was given up.

(2.) The learned counsel for the defendant-petitioner in this Court very strongly argues that by now a valuable right has accured to the defendent because the suit has become barred by time on the basis of the chit No. S. A. 15/24. This valuable right, according to the learned counsel, can only be safeguarded by declining the amendment. It is undoubtedly true that, as a rule, the Courts are disinclined to allow amendment if a fresh suit on the amended claim would, on the date of amendment, be barred by limitation, but that is a factor to be taken into account in exercising the discretion whether or not to allow the amendment. The ultimate test on a consideration of all the relevant factors, including the one just mentioned, is the same: can the amendment be allowed without injustice to the other side or can it not? Each case has thus to be decided on its own facts and it is not feasible nor advisable to encase this discretionary power within the straight jacket of an inflexible formula. On the facts and circumstances of the case in hand, the impugned order seems to me to be eminently just and proper and the factor of a successful plea of limitation is more than offset by the reason for the error sought to be rectified by amendment. It is precisely in cases like the present, where, by reason of a typographical error, a claim is going to fail and be barred by time if amendment is not allowed, that, the Court would be well advised to exercise its discretion in allowing the amendment. This indeed is dictated by the cause of substantial justice. The Court below has not held that the mistake was deliberate, intentional or grossly negligent. In a case of this nature, in my view, costs can very reasonably be stated to more than compensate the defendant for the delay in the amendment sought. No new case is being introduced and the defendant is not being taken by surprise. I am, therefore, unable to find any jurisdictional infirmity or material irregularity in the impugned order, which does not go against the recognised principle governing discretion in the matter of amendment of pleadings.

(3.) For the reasons foregoing, I do not find any cogent ground for interfering on revision under section 115 of the Code and decline interference. This revision accordingly fails and is dismissed, but there will be no order as to costs.