MONMOHAN RAKSHIT Vs. DOMINION OF INDIA

JUDGEMENT

(1.) This is an application for amendment of a plaint. The suit was filed in 1949 claiming damages alleged to have been suffered by reason of delay in delivery of a consignment of potatoes. Delivery of the goods was to be had at Shalimar, outside the jurisdiction of this Court, but the plaint contains an averment that notices under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure were served within such jurisdiction and leave was obtained under Clause 12 of the Letters Patent enabling the Plaintiff to file the suit in this Court. The Plaintiff who claimed to be the endorsee for value of the Railway receipt covering the goods, now seeks to amend his plaint by pleading that the said railway receipt was endorsed by the Imperial Bank of India at Nos. 1-3 Strand Road, Calcutta, within the jurisdiction of this Court.

(2.) The amendment is opposed on the ground that the application is barred under the provisions of Article 181 of the Limitation Act which governs all applications for which no period of limitation is provided elsewhere in the Schedule to the Act or by Section 48 of the Code of Civil Procedure. Under the said Article the said period commences when the right to apply accrues. It is contended that all applications for amendment of pleadings are made under the Code of Civil Procedure and as such are governed by the said Article unless they are covered by any other specific Article. Order 6, Rule 17, of the Code of Civil Procedure which governs the rights of the parties to have their pleadings amended is couched in the following words:

(3.) Reliance was placed on the case of Subbarayan v. Natarajan,1922 ILR(Mad) 785. and specially to the judgment of Ramesam, J', at p. 795 where the learned Judge observed that the phrase "period of limitation" can be used in two senses, (1) a strict sense and (2) a loose sense. On behalf of the applicant, Mr. Sinha the learned advocate for the applicant, drew my attention to the judgment in Durag Pal Singh v. Panchan Singh, 1939 AIR(All) 403 and Kundaswami Pillai v. Kamrappa Chetty, 1952 AIR(Mad) 186 where the above Madras judgment has been rather severely criticised.