HARI SHANKAR SINGHANIA Vs. GAUR HARI SINGHANIA

JUDGEMENT

(1.) HEARD Mr. Madon for the plaintiff, Mr. Kadam for defendant Nos. 1 to 9 and Mr. Shah for defendant Nos. 10 to 17. The defendants oppose the chamber summons on the ground namely that the case made by means of amendment is such that it would have been barred by limitation if the suit was instituted on the date of the application for amendment.

(2.) IN Jai Jai Ram Manoharlal v. National Building Material Supply reported in AIR 1969 SC page 1267 while allowing the amendment, the Apex Court observed thus :

(3.) MORE than four decades ago in L. J. Leach Co. Ltd. v. Jardin Skinner and Co. reported in AIR 1957 SC page 357, a four bench judgment of the Supreme Court observed in para 16. "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. (Emphasis supplied) In the case of L. J. Leach Co. Ltd. the Apex Court while laying down that limitation is only a factor to be taken into account in exercise of discretion whether amendment should be ordered and not affecting the power of court to order it, allowed the amendment in the facts and circumstances of that case. This judgment of a four judge bench of the Apex Court which has held the field for more than 4 decades was applied recently in Raghu Tilak D. John v. S. Raypa reported in (2001) 2 SCC 472. In para 6 of the judgment, the Apex court observed: