MUTHAMMAL Vs. GURUSAMI NAYAKKAN

JUDGEMENT

(1.) The petitioner contends that the lower Court ought not to have allowed the amendment of the plaint. Mr. K.V. Ramchandra Aiyar relies upon the well-known rule that no amendment should ordinarily be allowed, which has the effect of taking away an existing right from the defendant. In the first place, it is important to note that this very statement of the rule assumes that it is not an inflexible one. As the Judicial Committee observe in Charan Das v. Ameer Khan 1921 P.C. 50 (l), the special circumstances of a particular case may outweigh the considerations underlying this rule. Secondly, in the present case, by the proposed amendment, neither is a new relief prayed for based on the same cause of action nor is a fresh cause of action added. The kind of amendment which the decisions say, ought ordinarily not to be allowed, is that which takes away an existing right from the defendant. That is one thing, but it is a very different thing to say, that no amendment should be allowed, which would deprive the defendant of a bare right to raise a plea of limitation. The argument overlooks an important distinction and confuses a legal right accrued with a mere right to plead. The object of the decisions is to secure the former and not the latter right to the defendant. The facts of the leading English case Weldon V/s. Neal (1887) 19 Q.B.D. 394, serve to bring out this point clearly. There, the plaintiffs commenced an action for slander and afterwards sought to amend the plaint by setting up an addition to the claim for slander, fresh claims in respect of assault, false imprisonment and other causes of action, which at the time of the amendment sought, were barred by the statute of limitations, although not barred at the date of the writ. The amendment was refused on the ground that it would take away art existing right from, the defendant. It will be observed that new causes of action were sought to be added. This-is expressly referred to by Lopes, L.J., who remarks: But here the amending paragraphs set up causes of action which were not in the original claim and which are now barred by the statute of limitations. The effect of allowing those amendments would be to take away from the defendant the defence under that statute an& therefore unjustly to prejudice the defendant.

(2.) Where the cause of action remaining: unaltered, the amendment seeks to add fresh reliefs, the Courts would be less: averse to grant the request. This is illustrated by Charan Das V/s. Ameer Khan 1921 P.C. 50, the case already referred to. The plaintiffs there sued for a declaration of their right of pre-emption, a form of suit which would not lie having regard to the proviso to Section 42, Specific Belief Act. In second appeal the Court allowed the plaint to be amended by possession being claimed on the basis of pre-emption, and this order was upheld by the Privy Council. In the course of their judgment, their Lordships make reference to the following statement of the Judicial Commissioner with which, they observe, they are in full agreement. That statement runs thus: However defective the frame of the suit may be, the plaintiffs object was to pre- empt the-land; their cause of action was one and the same, whether they sued for possession or not.

(3.) But as already observed, in this case: there is not even a fresh relief sought to be added. The promissory note on which the suit is based was executed in 1924. The suit was filed in 1932. The ground on which exemption from limitation was claimed was, that there was a payment on 18 August 1930. The object of the amendment is to rely on a further ground of exemption, namely, that there was an acknowledgment of liability. The date of this alleged acknowledgment has not been mentioned, but it is assumed for the purpose of the argument that it was beyond three years from the amendment. I fail to see how the plaintiff can be prevented from relying upon this fresh ground. The amendment proposed does not change the cause of action, nor does it bring in a new relief. Granting that by reason of Order 7, Rule 6, Civil P.C. no fresh ground of exemption can be added without the plaint being amended, by the, leave of the Court Palani Chetty V/s. sevugan Chetty 1933 Mad. 395, it by no means follows that the amendment seeks to change the cause of action.