SRIRANGAN CHETTIAR Vs. MSORNAM PILLAI

JUDGEMENT

(1.) The only point of substance is, whether the Court had the power to order the amendment in question. In the petition, as it originally stood, where the acts of insolvency were mentioned, the words "with intent to defeat and delay his creditors" were owing to a defective drafting omitted. The object of the amendment was to insert these words so that the requirements of the section might be complied with. Section 5, Provincial Insolvency Act, provides that subject to the provisions of the Act, the Court has the same powers, and shall follow the same procedure as in the exercise of original civil jurisdiction. This section renders the provisions of Order 6, Rule 17, Civil P.C., relating to the amendment of pleadings applicable. The general rule is, that leave to amend will be granted so as to enable the real question in issue to be raised, where the amendment will occasion no injury to the opposite party except such as can be sufficiently compensated for by costs or (other terms to be imposed by the order. As Lopes, L.J., remarks Weldon V/s. Neal (1887) 1 Q.B.D. 394: However negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side.

(2.) In the case in hand, the amendment sought is of a most formal kind; there can be no possible doubt as to what the petitioner really meant. The acts of insolvency have been set out clearly, there being a formal defect arising from the omission of certain words. I have not the slightest doubt that a defect of this kind should be invariably allowed to be remedied. But it is contended that the amendment was ordered more than three months from 4ho alleged acts of insolvency, and on that ground, the lower Court's order is attacked. I think there is no substance in this contention. The rule as laid down in the case is, that except in special cases, leave to amend will be refused where the effect of the proposed amendment is to take away from the defendant a legal right which has accrued to him by lapse of time. I have held in a recent judgment Muthammal V/s. Gurusami nayakkan 1935 Mad. 158 that what this rule contemplates is, the taking away of an existing right from the defendant and not of a bare right to raise a plea of limitation. There I observed: 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.

(3.) These observations apply with equal, if not greater, force to the facts of the present case and I do not propose to respect the reasons contained in that judgment. "Whether the period of three months is regarded as a condition precedent or a period of limitation, makes in my opinion no difference. Mr. Balaram relies upon Ex. parte Coates In re Skelton (187) 5 Ch. 979. There a bankruptcy petition alleged that the debtor had departed from his dwelling house but did not allege that he did so with intent to defeat or delay his creditors. It was held that the question was one of substance and not a mere matter of form and that the amendment should not be allowed. But in In Fiddin, Squire & Co. (1892) 66 L.T (N.S.) 203 this case was distinguished on the ground that it merely decided that after adjudication there could not be any such amendment, and the contention that the defect was such as the Court would not permit it to be remedied, was repelled. Mr. Balaram next relies on A.M.M. Murugappa Chattiar V/s. N.C. Galliara 1934 Rang. 87, but if in that case it was intended to depart from the rule laid own in In re Fiddian Squire & Co. (1895) 66 L.T. (N.S.) 203 just cited, I must, with great respect, refuse to follow it. In the result, the lower Court's order is upheld and the civil revision petitions are dismissed. My order as to costs is this. The petitioning creditor shall get from the estate costs amounting to Rs. 57-1-0 mentioned. at p. 14 of the pleadings in C.R.P. No. 211 of 1933. He shall get from Srirangan Chetty the costs of C.M.A. No. 87 of 1932 on the file of the District Court and of C.E.P. No. 211 of 1933 in this Court. As for Srirangan Chetty, he shall get from the estate the costs of C.M.As. Nos. 10 and 12 of 1932 on the file of the District Court.