VAITHILINGAM PILLAI Vs. KANDASWAMI PILLAI

JUDGEMENT

(1.) In one respect I am prepared to go further than my learned brother. In my opinion no appeal lies in this case. As has been pointed out, the District Munsif disposed of the suit on all the issues framed by him, and it is not contended that those issues did not cover the whole suit as it originally stood or omitted any contention raised by the defendant in his written statement or at the settlement of issues. When a Court has disposed of the whole suit as it stands before it in that way, to say that it has disposed of the suit on a preliminary point merely because it has not dealt with the further issues which might have arisen if the suit had been framed otherwise originally or if an amendment of the pleadings had been allowed later in the history of the suit appears to me to be almost an abuse of language. I am clear that nothing in the opinion of the Full Bench in Raman Nair v. Krishnan Nambudripad (1922) I.L.R. 45 M. 900 : 43 M.L.J. 354 (F.B.) would justify us in going so far as that. Mr. Patanjali Sastri suggested at one stage of his arguments that the history of the litigation which led up to the Full Bench decision was very similar to the history of this case. But on an examination of the printed papers in that case that suggestion appears to be incorrect, The plaintiff in that case did not, as Mr. Patanjali Sastri at first suggested, by a subsequent pleading put in after the written statement, raise a new plea, and the District Munsif was not held to have decided the suit against him on a preliminary point because he refused to take into consideration the contents of any such subsequent pleading. He decided the suit, it was held, on a preliminary point because he dealt with it on his view that the plaintiff did not raise in his original pleadings a certain plea, which the Subordinate Judge on appeal found he did raise, and shut out some evidence. That is quite unlike the present case.

(2.) But I agree that, although there is no appeal in this case, it is one in which we should interfere in revision. The learned District Munsifs refusal to allow the plaint to be amended appears to have been quite correct. As is well known, a plaint may be amended at any stage of a suit, subject to proper provision as to costs, for the purpose of bringing out the questions really in controversy between the parties or for correcting any mistake or error in the plaint which has obscured the plaintiff's real claim as intended by him; but plaints cannot properly be allowed to be amended if the amendment would change the fundamental character of the suit, would change a suit based on one legal relation into a suit based upon another one or a suit based upon one title into a suit based upon another title, when the plaintiff's claim on the second legal relation or title is time-barred on the date on which the application for amendment is made. Now, as has been pointed out in this case, the plaintiff's claim as the heir to the stridhanam property of Rajamanikathammal was time-barred on the date when he made his application for amendment to the District Munsif. If he had brought a suit on that basis on that date, he was bound to fail. But the learned District Judge has given him an opportunity nevertheless to sue on that time-barred claim. It appears to me that in so amending and remanding the suit the learned District Judge undoubtedly committed an irregularity in procedure, and, if it was an irregularity, it was certainly a material one. Therefore in my opinion this is a case in which we can interfere in revision and should do so.

(3.) I agree with the order proposed by my learned brother both as to costs and otherwise. Anantakrishna Aiyar, J.