S V NALLAPERUMAL PILLAI Vs. RPONNAYA MUDALIAR

JUDGEMENT

(1.) The Civil Revision Petition is against the order of the lower Court refusing to permit an amendment of the plaint in O.S. No. 59 of 1924. The suit as originally framed Was based on a security or mortgage bond, dated 1 July 1921, executed by Defendants 2, 3 and 4, the mortgage amount being the sum found to be due to the plaintiff by the 1 defendant on that date on running accounts. The plaint allegation was that as on 1 July 1921 it was asserted that the 1 defendant was insane and, therefore, could not himself execute the bond, Defendants 2, 3 and 4 executed it, the 3 defendant doing so as guardian of the 1st defendant. After 1 July 1921 the running accounts went on, and on the taking of accounts- between 1 July 1921, and 26 September 1924, the date of plaint, the plaintiff admitted that Rs. 1,016 was due by him and allowed for that set-off in his plaint. The defence inter alia was that the 1 defendant was not insane on the date of the mortgage and, therefore, the mortgage is an invalid document and does not bind him. The plaintiff, after putting forward a case that the 1 defendant had ratified the mortgage after recovering his sanity, applied to allow him to amend his plaint by adding an alternative prayer to the effect that if the mortgage is found to be-not binding on the 1 defendant he may be allowed to sue on the running accounts on the footing that there was no settlement on the 1 July 1921. This prayer the lower Court has refused. It seems to me that the lower Court has not rightly exercised its jurisdiction in refusing this prayer. The suit is really to recover an amount due to the plaintiff by the 1 defendant on accounts between them. The plaintiff's original case was that at one stage this debt due was crystallized into a mortgage debt. Defendants in effect say it was not. The plaintiff then pleads that if it is found that it was not he may be allowed to. sue on the accounts as if it was not, I cannot see here any radical change in the cause of action. The primary party liable on the accounts has all through been the 1 defendant. I shall come to the case of Defendants 2 to 4 later; but so far as the 1 defendant is concerned, I cannot see how the amendment prejudicially affects him or changes the essential cause of action against him. He cannot plead surprise because it is part of his case that he was unaware of the mortgage and was all along under the belief that the accounts were running on as before and that there was no settlement on 1 July 1921: see paragraph 11 of his statement.

(2.) His main objection is that the amendment will open be the plaintiff an opportunity of appropriating against time barred items prior to 1 July 1921 Sums already appropriated against debts which have arisen after 1 July 1921 and thus entirely alter the complexion of the accounts as set out in the plaint after 1 July 1921. No doubt it will have this effect, but the lower Court is quite capable of dealing with such a contingency, and it will be open to the 1 defendant to plead before it such questions of limitation and re-appropriation. The 1st defendant cannot plead with the same breath that the plaintiff cannot rely on the mortgage and yet that he must be bound by his system of accounts following from it. The plaintiff no doubt taken by surprise when the 1 defendant repudiated the insanity, was entitled to put forward the alternative plea on the contingency that the insanity was not proved, and such a plea must proceed on the footing that there was no settlement on 1 July 1921, binding on the 1 defendant, because the settlement was not with him although he was mentally sui juris and that, therefore, the running account has not been interrupted by any such settlement.

(3.) The lower Court's order refusing this prayer seems to me to be based on a confusion of thought. It regards the amendment as introducing a new cause of action, because there was a settlement on 1 July 1921, when the old balance of account was discharged by the mortgage. But the whole question is whether or not there was a settlement, and if the Court held on trial that the 1 defendant was not insane, then there was no settlement with the first defendant. The plaintiff's ease was not that he accepted the transfer of the debt from the shoulders of the 1 defendant to those-of Defendants 2 to 4, but that he effected a direct settlement with the 1 defendant through his guardian. If there was no such direct settlement then the accounts with the 1 defendant are open and the case falls to be decided on that footing. Similarly with appropriations after July, there were on the footing that there had been a direct settlement with the 1 defendant and if there was no such direct settlement the plaintiff is entitled to re-appropriation so far as the law of limitation will permit. The plaintiff is entitled to whatever 1 defendant owes him on the footing of the items on running accounts, which are not barred by limitation. On this footing, of course, the only items after 1 July 1921, to be reckoned in the accounts of the 1 defendant will be those, items of personal dealing with the 1 defendant after that date and not any items of dealing with the other defendants.