ALAPATI RAMASWAMI Vs. DASARI VENKATANARAYANA

JUDGEMENT

(1.) Second Appeal by plaintiff against the decree of the District Judge of Guntur in Appeal Suit No. 332 of 1921.

(2.) The question to be considered in this appeal is one of limitation, and the facts are as follow:--The defendant executed a hypothecation bond Ex. A, on 10-10- 1917, Under this bond a sum of Rs. 2,000 was due to the plaintiff and the defendant undertook to deliver 71/2 candies of paddy every year for a period of eight years. The paddy was deliverable on Pushya Bahula 30 of every year, and in case default was made in the delivery of the paddy the defendant made himself liable to pay the market value of the paddy in Ponnur market on the 30th Phalguna Bahula of the same year. There is also a provision in the bond to the effect that in case the first instalment was not fully paid the last instalment also because due; and that in case the second instalment was not paid, the 7th instalment also became due; and so on. For the first instalment a small quantity of paddy bad been delivered, and on 20-11-1918 the plaintiff instituted a suit for the recovery of the amount due with respect to the first and eighth instalments. The plaint in this suit was returned for presentation to the proper Court on 24-9-19 and it was presented in the District Munsif's Court of Bapatla on 26-9-1919. The present suit out of which this second appeal arises was in respect of the second and seventh instalments. One of the contentions urged was that the suit was barred under Order II, Rule 2 of the Civil P. C.. Both the Courts below upheld this contention and dismissed the suit.

(3.) It is contended before me that the cause of action in the present suit which was instituted on 31-8-1920 did not arise on the date when the plaint for the first and eighth instalments was filed and that, even if it did arise the date of the cause of action was not 30 January 1919 as stated in the plaint, but 30 of Phalguna Babula which would be about March 1919. For considering when the cause of action really arose, reference has to be made to Exhibit A. This document recites that the paddy was deliverable on Pushya Bahula 30 of every year, and that in case there was failure to deliver the paddy, defendant was to pay the value of 141/2 candies at the price prevailing in the Ponnur maket on Phalguna Bahula 30th. Before the parties went to trial the plaintiff put in a petition to amend the plaint by stating that the cause of action arose on Phalguna Bahula 30 and this application was refused by both the Courts below on the ground that "a change in the cause of action would prevent the suit being barred and thus deprive the defendant of his right to have the suit dismissed."Both the lower courts were of opinion that the amendment would make a change in the cause of action, but this does not appear to me to be so. The change would be only in the date when the cause of action arose and not in the cause of action itself which would remain the same. The document distinctily provides that the value of the paddy as and on Phalguna Bahula 30 was to become payable in case the paddy was not delivered. For the purpose of instituting the suit the plaintiff would therefore have to wait till Phalguna Bahula 30 for the purpose of ascertaining the price on that date. It is only after ascertaining the price that he could have valued his suit and come in with his plaint. The cause of action remains as it was, namely the failure to deliver paddy, but the only variation which the plaintiff wanted to make was as to when the cause of action arose. Therefore such an amendment could be allowed as laid down by this court in Sevugan Chetti V/s. Krishna Iyengar (1913) 36 Mad. 378. The Vakil for the respondent relies upon a case in Balharan Upadhya V/s. Gaya Din Kalevar (1914) 36 All. 370 but all that this case lays down is that no amendment should be ; allowed when there is a change in the cause of action and not when there is a change in the date when the cause of action arose. The grounds on which the lower courts declined to allow the amendment seem to me to be untenable; and the amendment in my opinion ought to have been allowed. In this view the suit would not be barred by limitation.