KUPPAN CHETTIAR Vs. KESAVAN

JUDGEMENT

(1.) This is a petition to revise an order of the District Judge of Alleppy refusing leave to amend a plaint. According to the plaint allegations, defendant had pattuvaravu dealings with the plaintiff and under the pattuvaravu account plaintiff had to get from the defendant a sum of B. Rs. 14283-9-5 on 25-3-1123. Plaintiff prepared five Demand Drafts for B. Rs. 5,200/- out of the said amount on 24-3-1123, corresponding to 10-11-1947 and cashed them at the South India Bank Limited. As the defendant refused to honour the Drafts when the Bank presented them to him, plaintiff brought the suit in the District Court for recovery of the amount of B. Rs. 5,200/- for which the drafts had been drawn and interest and incidental expenses and costs. It was also stated in the plaint that for the balance due to him under the pattuvaravu account plaintiff would file a separate suit. Defendant contended that he had only purchased goods from the plaintiff and had no pattuvaravu dealings or accounts with him. According to the defendant, the amount mentioned in the plaint as due from him was not correct, and the plaintiff's right to sue on the accounts had become barred by limitation. He contended further that he had not agreed to plaintiff drawing demand drafts on him, that the plaintiff had therefore no right to draw the drafts mentioned in the plaint, and that the suit was consequently not maintainable. After the defendant filed his written statement plaintiff applied for leave to amend the plaint seeking to base his cause of action on the accounts also, and also to recover the entire amount alleged to be due to him under the account and not merely the amount of B. Rs. 5,200/- covered by the drafts. The defendant opposed the application, and the lower court dismissed it. Hence this petition.

(2.) The reasons given by the lower court for dismissing the application are that the plaintiff had expressly reserved in the plaint his right to file a separate suit for the balance and that since it is the defendant's case that a suit on accounts is barred by limitation the amendment, if allowed, would defeat the right he has acquired by lapse of time. The reservation by the plaintiff of his right to file a separate suit for the balance over the amount of B. Rs. 5,200/- for which he had drawn the Drafts and instituted this suit can be no ground for refusing leave to amend the plaint so far as the amount of B. Rs. 5,200/- already sued for is concerned. It is contended in this court that the cause of action and the character of the suit will be changed even in respect of this amount of Rs. 5.200/- if the amendment is allowed. In view of the allegation in the plaint that the amount for which the plaintiff drew the Drafts was part of the amount due to him under the pattuvaravu account, I do not consider that the amendment sought for will introduce an entirely new cause of action or fundamentally change the character of the suit in so far as the amount of Rs. 5,200/- is concerned. The objection based on the ground of limitation has also to be repelled so far as the amount of Rs. 5,200/- is concerned. The following observations made by the Travancore High Court in Krishna lyen v. Parameswara Iyen, XIV TLJ 313 are very pertinent in this connection:-

(3.) The prayer to recover the balance amount due to the plaintiff under the Pattuvaravu account also in this suit stands on an entirely different footing. The plaintiff had expressly stated in the plaint that he would file a separate suit for that balance. It is now urged that it was because the plaintiff had bona fide believed that the defendant would pay the balance without any suit that he filed the suit for the recovery of Rs. 5,200/- alone. When the defendant had refused to pay even the sum of Rs. 5,200/- out of the amount of Rs. 14283-9-5 alleged to be due to the plaintiff, I fail to see how the plaintiff could have bona fide believed that the defendant would pay the balance without a suit. This is a case in which the plaintiff deliberately elected to sue only for a portion of the amount alleged to be due to him and intentionally put off claiming the balance. He must have done so because it was to his advantage to do so at the time when he filed the suit; and if by the lapse of time the claim in respect of the balance has become barred by limitation he cannot be allowed to take away from the defendant the right that has accrued to the latter by his (plaintiff's) own deliberate act. Regarding restrictions to the powers of courts in the matter of allowing amendments, it has been laid down in Narendra Nath v. Ganesh Prasad (AIR 1946 Pat. 408: