BHUWANLAL Vs. SUMRANLAL

JUDGEMENT

(1.) THE plaintiff non-applicant Sumranlal sued the defendant-applicant Bhuwanlal in the Court of the additional Subordinate Judge, first class, Chhindwara, for possession of five khasra numbers in M. M. Barelipar and Chandanwara on the allegation that these were his khudkasht fields from which defendant had dispossessed him. The par- ties are real brothers. Defendant denied that the fields were plaintiff's khudkasht or that the latter had any title to them. Defendant's case further was that a partition had been effected by which the fields in suit fell to his share. He admitted having taken possession of the fields on 1st June 1925. The plaintiff traversed these allegations and finally prayed that the suit might be treated as one under Section 9, Specific Relief Act. The additional Subordinate Judge granted this prayer by his order, dated the 30th April 1926, pointing out therein that plaintiff's original relief was only one of possession; that it was defendant who had raised questions of title; and that the alteration made in reality no change in the nature of the case. It is the propriety or otherwise of this order which is in question in the present revision case.

(2.) ON behalf of the defendant-applicant, the contention has been that the amendment in question should not have been allowed as the relief then claimed was barred, possession having been taken in June 1925, while the amendment was allowed on the 30th April 1926 : cf. Article 3 of the schedule to the Limitation Act. Reliance has been placed on Upendra Narain Roy v. Janaki Nath Roy [1918] 45 Cal. 305, Mangal Prasad v. Chandramall [1905] 1 N.L.R. 117, Shriram v. Ganpati Kunbi [1906] 2 N.L.R. 79, and Nemasa v. Ramkrishna [1914] 10 N.L.R. 32, in this connexion. The Madras case quoted is not peculiarly apposite in this connexion, the points involved being entirely different from the present case. The decision in Mangal Prasad v. Chandramal [1905] 1 N.L.R. 117 is so far authority for the view that an amendment should not be allowed when its effect is to preclude the defence from setting up a plea like a bar of limitation and that when a new cause of action is added the question whether the claim based on that cause of action is time barred must be determined with reference to the date on which the suit was instituted. A similar view was taken by Ismay. J.C., in Shriram v. Ganpati Kunbi [1906] 2 N.L.R. 79, while in Nemasa v. Ramkrishna [1914] 10 N.L.R. 32, the question of allowing a plaintiff to add a fresh relief which meanwhile had become barred was similarly decided. In the same case, it was, however, pointed out that there would be an exception to the above rule when the amendment was ordered at the instance of the defendant.

(3.) THERE seems to me to be three essential conditions which must ordinarily be fulfilled before an amendment like the present one can be allowed. There must be good faith on the part of the plaintiff : the amendment must be possible with out prejudice to the defendant, and the amendment must not turn the suit into one of a different character. There is here no question of mala fides on plaintiff's part : the amendment was made as a result of pleas offered by the defendant who went out of his way to suggest the possibility of its being made Again I cannot see that defendant was prejudiced. The cause of action, viz., plaintiff's dispossession and the relief claimed, viz., re-entry into possession, remained the same and the question of title will have to be fought out separately. Finally, the character of the suit has not been integrally changed; possession is still claimed, the 'only difference being that the question of title has been waived aside for the present.