PIRGONDA HONGONDA PATIL v. KALGONDA SHIDGONDA PATIL & Ors.

(,'hara11 Das v .. Anzir I<han (L. R. 47 I.1\. 255), relied on. L. /. Leach & Co. \". /ardine Skinner & Ca. ([1957] S.C.R. 438), followed. Observa~ions of Batchelor J. Rachappa Vithoba (I.L.R. 33 Barn. 644, 649), approved. in Kisandas Rttpchand \'. CIVIL APPELLATE JURISD!CTION : Civil Appeal No. 228 of 1953. leave from the Appeal by special Judgment and Decree dated September 6, 1951, of the Bomboy High Court in Appeal No. 1% of 1950 from the Judgment and Decree dated March 31, 1950, of the Civil Judge, Senior Division, Kolhapur in Civil Suit No. 23 of 1949. S. C. Isaacs, S. N. Andlev, R.ameshll•m· Nath ai:d /. B. Dadachanji, for the ap1;ellant. Achhru Ram, G. A. De.«1i am! Natmit Lai, for res pondents Nos. 1 and 2.

#1957. February 7. The Judgment of the Court was delivered by S. K. DAs J .-This is an appeal by special from the judgment and decree of the · High Court of Bombay dated Septemher 6, 1951, by which the said High Court set aside. on appeal the decree passed by the Civil Judge (Senior Division) Koibapur, in Civil Suit No. 25/49 and allowed an amendment of the pbnt at the appellate conditions. in the circumstances stated belov./. sr:1ge, subject ccrtam respondent No. 3 1"'he appeflant before us In 1942 the origiml plaintiff \.Vas defendant No. 1 in the suit. Respondent:; 1 and 2 arl: the heirs of the original plaintiff anci respondent No. 3 was defendant No. 2 in the action. a suit againot for posscss1011 of the suit properties and obtained a decree in ejcctmcnt on March 28, 1944. This decree was confirmed in appeal on July 9, 1945. U1• a further appeal, the then Supreme Court of Kolbpur affirmed In applica the meantime, the original plaintiff made an the decree but was resisted or tion for execution of the decree on April 2, 1946. ·filed • S.C.R. SUPREME COURT REPORTS 597 appellant the present obstructed in obtaining possession of the said properties. He then made an application under O. XXI, r. 97 of the Code of Civil or obstruc Procedure, complaining of such resistance tion. This application was heard and dismissed . under 0. XXI, r. 99 of the Code of Civil Procedure, on April 12, 1947. On March 12, 1948, the original plaintiff this appeal has arisen) instituted the suit (out of which under 0. XXI, r. 103 of the Code of Civil Procedure, for a declaration that he was entitled to recover posses sion of the suit properties from the present appellant who was impleaded as the first . defendant. 1957 Pirgonda Hongonda Patil "· Kaigotida ShidgonJa Pali. S. K. Das]. that miscellaneous . against the suit the said However, properties, getting Prior to its amendment, the plaint stated : "Defend dant No. 2 in collusion with· defendant No. 1 caused objection to be submitted against execution. The plaintiff had conducted Misc. Suit No. 5/1946 for getting possession of objection removed. the plaintiff. proceeding has been decided filed the present suit for the plaintiff has Therefore, right to take getting declared that the plaintiff has possession of the suit property against defendants Nos. 1 and 2:" Apart from the decree obtained eailier suit, no particular averments were made as to the facts or grounds on which the plaintiff based his appellant. title to the properties in suit as against the the present An application was made on behalf of appellant on November 20, 1948, it was pointed out that the plaintiff filed the suit on the basis of the decision in an earlier suit to which the present It was then stated : "As appellant was not a party. said decree, the the defendant is not a party in the plaintiff will not acquire ownership whatever the said decree. And the against the defendant from plaintiff has not given even explanation the slightest as to how he has ownership against the defendant. So permission should not be hereafter given to the plaintiff to make amendment in respect of showing ownership". A copy of this application was made over to the learned pleader for the plaintiff who noted thereon as follows : "The plaintiff's suit is under 0. XXI, r. 103 of the relief which can be Code of ·Civil Procedure. Hence in which 1957 Pirgonda Hc11~onfln Patil v. II... lg nda Shidgo11da Patil S. J:. I>as ]. 598 SUPREME COURT REPORTS [1957] per this granted as provision may be granted." An objection was also taken with regard to the description of the suit properties the schedule. This objection was however met by making the necessary amendment. a insert further permission to the plaintiff wanted to tenable. against the On December 20, 1949, the present appellant took the objection his written statement and, inter alia, that the suit was not maintainable against him, as the plaint disclosed no cause of action so far as he was concerned. A preliminary issue was then struck on question whether January 19, 1950, which raised appellant. the suit as framed was When the trial of this issue began, an application was made on March 29, 1950, on behalf of the original plaintiff for and better particulars of the claim made in the plaint, an<l for that purpose paragraph as para !(a) in the plaint and a few sentences in para 3. It is necessary to quote these here, because subsequently allowed by these were the amendments Judges of the High Court of Bombay by the learned their order dated September 6, 1951. The new para Ichalkaranii graph was m village families 'taxima', viz., Mulki (Revenue) Patil and Police Patil. The suit properties are the lnam lands in the Police Patil family. A woman by name Bhagirathibai, wife of Shivagonda Patil, was the Navwali 'warchi Vatandar' (representative Vatandar) of the Police Patil family. This woman died in the year 1936. Due to the death heirship-owner of the woman the plaintiff acquired ship over the near heir. The the suit property as in the possession and under the suit properties were vahiwat of defendant No. 2 without right. Therefore., the plaintiff filed Suit No. 3/1942 for getting declared his ownership of the suit property and for getting the In Appeal No. 9/44 and Supreme possession thereof. Appeal No. 5/46 preferred therefrom the plaintiff was unanimously declared to be the heir and the owner and the possession of the suit properties had been granted to the plaintiff." The sentences to he added to para from the Mulki graph 3 were : "Defendant No. 1 is independent Patil terms : "In 1957 Pir,~onda l-]ongunJa Pat:l v. Kalgonda S!iidgonda Patil S. K. Da,]. S.C.R. SUPREME COURT REPORTS 599 (Revenue) Patil family. He has nothing the suit property in the Police Patil family." to do with 1Q50, to the putting allowing to do , we may deprive that of pleading a bar of Judges observed: "\Ve realise Ry his order dated March 31, the learned Civil Turlge reiected the application and on the same day he dismissed the suit on the ground that the plaint made out no case of title against defendant No. l, appellant before us, who was not a party to the earlier suit in eicctmcnt in which the plaintiff had obtained a decree against defendant No. 2. From judgment and decree of the learned Civil Judge an appeal was taken to the High Court of Bombay and the learned Judges of the High Court allowed an amendment the plaintiff on terms as of the pbint after to costs, etc. While the amendment learned that by doing what we propose · defendant of a verv valuable right which he daims he bas acquired, namely, tation against the amended plaint, but we ,ire guided principles of this matter by rc.:gard more in substantial justice and we think that if we can make sufficient making drastic orders of costs in his favour and against the plaintiff, we shall not be doing him. This is, after all, a question of title property and we would be justifird ejectment was filed obscn·ation that when by Shidgonda against Pirgonda Annappa in the year 1942 he based it on his title to the suit property and it was onlv against Pirgonda Annappa that he had \Vhrn this decree which he had obtained obtained second Pirgonda defendant, was mentioned as a starting point in the plaint as it came to be filed, it would not be stretching too much of a point in favour of the plaintiff to observe 'that the dc.:cree which he had obtainc.:d against the second defendant, having strength of his title to the suit property, was really one of his documents of title. . . . . . . . . . . . . . . So far as the first defendant was concerned, the averment nece; sary under 0. XXI, r. 103, of the Cod~ of Civil Procedure, was that the first defendant was wrongfully obstructing injustice 111 making the decree. agamst been obtained compensation the suit in defend:mt Annappa, • 1957 Pirgonda Hongonda Patil v. Kalganda Shidganda Patil S.K. Da;J. 600 SUPREME COURT REPORTS (19571 in that behalf. This being the plaintiff from obtaining possession of property in execution of the decree which he obtained against the 2nd defendant in a suit constituted we think we are not doing first defendant if we allow his plaint even at this late stage by putting paragraphs in the plaint as suggested by him application March 1950." regularly the position, to amend in his the plaintiff and better particulars for further injustice though the The appellant then obtained special leave from this Court, and filed the present appeal. The m:iin point which has been argued before us on behalf of the appellant is that in the circumstances of this case the Judges of the High Court were wrong in learned such a late allowing an amendment of the plaint at stage. It may be stated here th:it learned counsel the appellant did not argue that the appellate Court had no jurisdiction or power to allow the amendment. His submission was that even appellate Court had such power or jurisdiction, circumstances should not have been exercised in the of the present case. Two such circumstances were greatly emphasised before us. One was period of limitation for a suit under 0. XXI, r. 103, of the Code of Civil Procedure, had already expired before March 29, 1950, on which date the application for amendment or for giving further and better parti culars was made. The second circumstance which learned counsel for the appellant emphasised was that the attention of original plaint had been drawn by the application filed on behalf of the appellant on November 20, 1948, and in spite of that application, no amendment was asked for till March 29, 1950. to the defect the plaintiff Judges of the High Court. Both these circumstances were fully considered by It is worthy the learned of note that the period of limitation for a suit under 0. XXI, r. 103 of the Code of Civil Procedure, namely, one year from the date of the adverse order made under r. 99 of 0. XXI, had expired some time before November 20, 1948, on which date the appellant made S.C.R. SUPREME COURT REPORTS 601 his first application pomtmg out the defect in the plaint, the adverse order under 0. XXI, r. 99, having been made on April 12, 1947. The application which the appellant made on November 20, 1948, had not the merit of such beneficent purpose as is now sought to be made out by learned counsel for the appellant. When the application was made, the period of limi tation had already expired, and the clearly said that no permission should be given to the plaintiff thereafter. We do not therefore think that the appellant can make much capital out of the application made on his behalf on November 20, 1948. to make an amendment appellant 1957 Pirgonda Hon&imda Patil v. KaJgonda Shidgonda Patil S. K.Das]. is required interests of suit on the the discretion true that courts would, as a rule, decline Recently, we have had occasion to consider a similar prayer for amendment in L. f. Leach & Co. v. Jardine Skinner & Co. ( 1 ) where, in allowing an amendment of the plaint in an appeal before us, we said : "It is no allow amendments, if a fresh amended claim would be barred by limitation on the date of the be taken into application. But that is a factor to whether account in exercise of amendment should be ordered, and does not affect the power of the court to order it, if justice." These observations were made in a case where damages were originally claimed on the footing of conversion of goods. We held, in agreement with the learned Judges of the High Court, damages on the that on the evidence the footing of conversion must fail. The plaintiffs applied to this Court for amendment of the plaint by raising, alternative, a claim for damages for breach of contract for non-delivery of the goods. The respondents and one application was resisted by the the period of of the grounds of resistance was that correct limitation had expired. We accepted decision in Charan Das v. Amir Khan (2) which down that "though there was full power to make the rule be amendment, such a power should not as a exercised where the effect was to take away from a defendant a legal right which had accrued to him by claim for in the (1) [1957) S.C.R. 438. (2) (1920) L.R. 47 I.A. 255. 1957 Pirgotlda Hongonda Patil v. Kalgoruta Shidgonda Patil S. K. Das]. 602 SUPREME COURT REPORTS [1957} latter, time ; In the so exercised that it was there were outweighed by cases where such consi the special circumstances lapse of derations were of the case". As pointed out in Charan Das' case (1 ), the power , exercised was undoubtedlv one within the discretion Judges. All that can be urged is that of the learned the discretion was exercised on a wrong principle. We the present do not think case. The facts of the present case are very similar to those of the case before their Lordships of the Privy respondents sued for a Council. certain declaration of their right of pre-emption over land, a form of suit which would not lie having regard to the proviso to s. 42 of the Specific Relief Act (I of 1877). The trial the first appellate Court to be amended by claiming refused to allow the plaint time had expired possession on pre-emption, since right. Upon a for bringing a suit to enforce second appeal the Court allowed the amendment to be that the made, there being no ground for suspecting plaintiffs had not acted in good faith, and the proposed amendment not altering the nature of the relief sought. In the case before us, there was a similar defect in the Judge refused to allow the plaint plaint, and the trial to be amended on the ground that the period of limi tation for a suit under 0. XX!, r, 103, of the Code of Civil Procedure, had expired. The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought. Judge and Learned counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba (') reliance on the observations of and pbce<l great simple Beaman J. at p. 655: "In my op1mon, tests, and two only, need is within the principle. ascertain whether a given case First, could to amend obtain the party asking If same quantity of relief without the amendment ? not, the proposed the other party at a disadvantage, amendment places to be applied,- in order necessarily it follows (•i [•920] L.R. 47 I.A. 255. (2) [•900] LL.R. 33 Bom. 644. 1957 Pirgonda Jlongonda Patil v. Kalgonda Shidgonrfa Patil S. K. Das]. S.C.R. SUPREME COURT REPORTS 603 relief," in the that the inflexible the rule, amendment jacket of an "quantity of present case was be allowed." in the is so peculiar as in any way to be made in it allows his opponent to obtain more from him than he would have been able to obtain but for die amend ment. in those circumstances, can the party Second, thus placed at a disadvantage be compensated by costs ? If not, not, unless the case to be taken out of the He contended that the first test laid down aforesaid observa present case. We do tions was not fulfilled not agree with this contention. First, it is not feasible to encase a discretionary power within nor advisable formula. Secondly, the strait we do not expression somewhat difficult of appreciation or appli affected cation in all circumstances, was this case. by the amendments allowed ·what happe'ned was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he asked for ; that removed by the amendments. The quality defect was and quantity of the rel~tfs sought remained the same ; whether the reliefs should be granted is a different matter as to which we are not called upon to express any opini)n at this stage. We think that the by Batchelor J. in correct principks were enunciated same case, viz., Kisandas Rup hi' judgment in the chand's case ( 1 "All allowed which satisfy amendments ought to be two conditions other side, and (b) of being necessary for the purpose of determining i11 controversy bet- ween the from citing I refrain further authorities, as, in my opinion, they all down precisely the same doctrine. That doctrine, I understand it, should be refused is that amendments only where the other party c;rnnot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury It is merely which could not be compensated a particular case rule that where a plaintiff seeks to amend by setting up a fresh claim in ) , when he said at pp. 649-650: (a) of not working injustice parties .......... but the real questions of this general in costs. (1) [1900] l.L.R. 33 Born. 6H. 1957 Pirgondo Hongonda Patil v. Kalgo11da Shid.1!,onda Patil S. 1-.. Dns }. 604 SUPREME COURT REPORTS [1957] in costs sa111c : can injustice to it would be the defendant an claim was for dissolution of partnership suit had become barred by limitation, the institution respect of a cause of action which since of the amendment must be refused ; to allow injury which could not be compensated by dcpri ving him of a good defence to the claim. The ultimate test therefore still tl1c a111endment be allowed remains the t11e ot!1er side, or can it not?" vvithout J. made thccc observations in a case where Batchelor J.ccounts, the plaintiffs alleging th:it in pursuance of a delivered Rs. 4,001 p:irtnership the defendants. The Subordinate worth of cloth the plaintiffs did deliver the cloth, judge found that no partnership was but came created. At the ap1dlate stage, the plaint.iffs abandon ed the plea of partnershi!' and prayed for Rs. 4,001. At that d::te the claim for the money was that the amend barred by ment was rightly allowed, as the claim was not a new claim. by adding a prayer agreement they h:'d to the C0'1c!usion It was held limitation. recovery The same principles, we hold, should apply in the present case. The ~mendments do not really introduce a new case, and the application filed by the appellant taken by surprise ; himself showed that he was not nor did he have to meet a 11etu claim set up for first time after the expiry of the period of limitation. For these reasons, vve sec no merit which is accordingly dismissed with costs. in the appeal, Appeal dismissed.