RADHA KISHAN Vs. ANOOP CHAND

JUDGEMENT

(1.) THIS is an application by the appellant for amendment of the plaint. The material facts for purposes of this appeal are as follows. Respondents Anoopchand, Meharchand and their deceased brother Santoshchand had executed a mortgage in respect of their house in favour of one Payarelal and his son Amarlal (respondent No, 4) for a consideration of Rs. 8.500 on 11 -8 -1943 by a registered deed of mortage (Ex P. 2). One of the terms of the mortgage was that the mortgage money shall be payable after five years from ' the date of the mortgage. Again on 14 -8 -1943 the aforesaid three mortgagors executed a second mortgage deed in favour of Pyarelal and Amarlal in respect of the said house for a consideration of Rs. 2,500 by a registered deed of mortgage (Ex. P. 3). The terms and conditions of the second mortgage were the same as that of the earlier mortgage. Mortgagor Santoshchand is dead and is represented by his son Vijaychand (respondent No. 3). Mortgagee Pyarelal also is dead and is represented by his three sons Amarlal, Jagdishprasad and Kishanlal (respondents 4 to 6). Respondents 4 to 6 transferred their rights under the mortgage deeds dated 11 -8 -1943 and 14 -8 -1943 to the plaintiff appellant Radhakrishna for a consideration of Rs. 11,000 by a registered sale -deed dated 11 -8 -1960 (Ex. P -1). As the mortgagors did not make any payment towards the mortgage, the appellant filed a suit on 13 -8 -1960 to enforce the said mortgages against respondents 1 to 3. The original mortgagees, that is, respondents 4 to 6 were also joined as parties to the suit. The suit was contested by the mortgagors (respondents 1 to 3) inter alia on the ground of limitation. The trial Court held in favour of the plaintiff -appellant on other points, but dismissed the suit on the ground that it was barred by limitation. Being aggrieved thereby the plaintiff -appellant has filed this appeal.

(2.) IN the trial Court the contention of the appellant was that the suit was within limitation as the second mortgage deed dated 14 -8 -1963 contained an acknowledgment of their liability by the mortgagors under the earlier mortgage and as such limitation was to be computed from the date of expiry of the period of five years commencing from the date of the second was accepted by the trial Court. In the memo of appeal so far as the question of limitation was concerned it was urged that the View taken by the trial Court was not correct. But on 17 -9 -1970 the appellant filed an application under Order 14 rule 2 C. P. C. for urging an additional ground of appeal to the effect that Ex. D -2 dated 7 -7 -1950 which is a registered deed of partition contains an acknowledgment of liability within the meaning of section 19 of the Limitation Act and the suit is within limitation because limitation should be computed from the date of this document. Subsequently on 18 -9 -70 the appellant filed an application for amendment of the plaint so as to claim extension of limitation on the basis of the aforesaid acknowledgment; in Ex. D -2. This application has been vigorously opposed by the Learned Counsel for the respondent and the question for consideration is whether it should be allowed.

(3.) APPLYING the aforesaid test, it would be clear that by this amendment plaintiff is not introducing a new cause of action or a new case. His claim is not based on the acknowledgment in Ex. D -2. His claim is based on the two mortgage deeds. He merely wants to show that his claim is within limitation because of an acknowledgment by the mortgagors of their liability under the mortgage deeds in Ex. D -2. Thus all he wants to introduce is a new fact to entitle him to succeed oh the claim as originally laid.