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Chunilal Bhogilal Shah Vs. Abdul Dawood Vohra - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 135 of 1944
Judge
Reported in(1947)49BOMLR748
AppellantChunilal Bhogilal Shah
RespondentAbdul Dawood Vohra
DispositionAppeal dismissed
Excerpt:
.....plaint basing suit on previous possessory mortgage-amendment application filed twelve years after date of mortgage-amendment whether allowable.;certain property was mortgaged to the plaintiff by defendants on juno 22, 1929. on january 13, 1941, the plaintiff sued the defendants for possession of the property on the ground that he had purchased it from them by a sale-deed on december 20, 1933. on november 11, 1941, the plaintiff made an application to amend the plaint by claiming in the alternative to sue also as a possessory mortgagee for possession. the amendment was allowed by the trial court. on the question whether the trial court had properly exercised its judicial discretion in allowing the amendment:-;(1) that at the date when the amendment application was filed the defendants..........and prayed for leave to amend the plaint by adding a prayer for the recovery of rs. 4,001. at this date the claim for the money was barred by limitation. the lower appellate court allowed the amendment to be made and allowed the plaintiffs' claim. the defendants in appeal to the high court contended that the amendment had been wrongly allowed. it was held that the amendment had been rightly allowed, because the defence of limitation was a defence to which the defendants were never fairly entitled, and the allowance of the amendment only withdrew from them an advantage which they ought to have received. batchelor j. referred to the two principles which should be satisfied before an amendment under order vi, rule 17 could be allowed, namely (a) it should not work injustice to the other.....
Judgment:

Sen, J.

1 This suit was brought by the appellant for possession of the suit property on the ground that he had purchased it by a sale-deed on December 20, 1938, from the mother of the two defendants. Prior to the sale-deed there had been a mortgage of the suit property on June 22, 1929, by the defendants' father in favour of the plaintiff, the mortgage being possessory. In the suit, however, the plaintiff did not mention anything about the mortgage though it was mentioned in the sale-deed on which he relied. In March, 1941, the defendants, who were minors at the date of the sale, contended that the sale was not legal under the Mahomedan law, having been effected by their mother, and that both the mortgage and the sale were without consideration. The suit was originally against defendant No. 1 alone and in his written statement, he also urged that defendant No. 2, his brother, should also be joined. Thereafter on July 29, 1941, the plaintiff made an application to join defendant No. 2 and it was granted. On November 11, 1941, the plaintiff made an application seeking to amend the plaint by claiming in the alternative to sue also as possessory mortgagee for possession. On that date twelve years had already expired from the date of the mortgage. The defendants objected to the amendment, but it was granted by the Court on December 9, 1941. The trial Court found that the sale-deed though proved was not binding on the defendants. It also held that the plaintiff was entitled to sue alternatively on the mortgage, and it came to the conclusion that the plaintiff's claim under the mortgage was time-barred. Both the parties agreed that the claim made on the basis of the mortgage must be deemed to have been made when the plaintiff sought to amend the plaint, that is, on November 11, 1941, and on that basis, the claim under the mortgage was held to be time-barred. Accordingly, the suit was dismissed with costs. On appeal to the District Court the parties, departing from the position which they had taken regarding the date on which the claim on the basis of the mortgage must be deemed to have been made, accepted the position that for the purpose of limitation the date of the plaint as amended should be taken to be the date of the original plaint and not the date on which the amendment was allowed. On that basis the learned District Judge held that the claim of the plaintiff for possession on the ground of the mortgage would be in time, but he further held that the learned trial Judge was not justified in allowing the amendment of the plaint. He came to the conclusion that the plaint on its being amended altered the whole nature of the suit, the original suit being for possession as owner and the suit as amended being for possession as a mortgagee. On that ground and on the ground that the amendment had been allowed at a time when if a separate suit had been filed on the new ground it would have been time-barred by six months, he held that the learned trial Judge had not exercised his discretion judicially in allowing the amendment. He next held that on this ground it was open to him to set aside the order of amendment of the plaint and on that basis decide the appeal. Accordingly, he held that the suit had been rightly dismissed and, therefore, dismissed the appeal with costs.

2. Two questions have been argued before me by Mr. Choksi on behalf of the appellant: (1) If the amendment was properly allowed, whether the suit was in time, that is, whether the amended plaint related back to the date of the original plaint and (2) whether the amendment was properly allowed. On the first question he has referred to Nanjibhai v. Popatlal (1931) 34 Bom. L.R. 628, Mahanth Kesho Das v. Hari Kishun Das I.L.R.(1937) Pat. 268 Patel Mafatlal Narandas v. Bai Parson I.L.R(1894) . 19 Bom. 320and Lalji Nensey v. Keshowji Punja 14 Bom. L.R. 840. He has contended that when a plaint has been allowed to be amended, the relevant date of the amended plaint should be taken as the date of the original plaint as conceded by both the parties in the lower appellate Court. On reference to the authorities cited I am not satisfied that the said proposition would apply to the facts of a case where the amendment is of a substantial nature, altering even the cause of action, for there is no doubt that the cause of action under the amended plaint was based on the mortgage of 1929 while in the original suit the cause of action WAS based on the sale-deed of 1933. I am, however, satisfied that the learned District Judge was right in holding that in this case the learned Subordinate Judge had not exercised his discretion judicially in allowing the amendment. Under Order VI, Rule 17, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments are directed to be made as may be necessary for the purpose of determining the real questions in controversy between the parties. There can be no doubt that for the purpose of determining the real question in controversy in this case, it was necessary that the Court should inquire into the rights of the parties under the mortgage and that it was rightly held that the sale by the defendants' mother was void and of no effect. But the difficulty arises from the fact that when the application for amendment was made on November 11, 1941, twelve years had already expired from the date of the mortgage and valuable rights had accrued to the defendants. Was it competent to the Court to override those rights and allow the plaintiff to amend his plaint in such a manner that it was only the rights of the parties as they existed before the expiry of twelve years from the date of the mortgage that was to be inquired into by the Court? The leading English case on the subject is Weldon v. Neal (1887) 19 Q.B.D. 394. There the original action was simply for damages for slander and the plaintiff was non-suited. Later she sought to amend her claim by setting up in addition to the claim for slander a fresh claim in respect of assault, false imprisonment and other causes which at the date of such amendment were barred by limitation though not barred at the date of the writ. The application for leave to amend the plaint was refused, and Lord Esher M.R. said (p. 395):-

We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments... Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.

Two instances in which the Privy Council approved of amendments being granted under such peculiar circumstances are Charan Das v. Amir Khan 22 Bom. L.R. 1370 and Mohummud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer (1867) 11 M.I.A. 468. In Charan Das's case the plaintiffs sued for a declaration of their right of pre-emption over certain land, but omitted to ask for consequential relief, namely, possession as required by Section 42 of the Specific Relief Act, 1877, The two lower Courts refused to allow the plaint to be amended since the time had expired for bringing the suit to enforce the right to possession on pre-emption. Upon a second appeal, the Court allowed the amendment to be made, and this was confirmed by the Privy Council, and their Lordships observed (p. 262):.all that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit.

These decisions clearly show that where a valuable right has accrued to the defendant, it will be only in very exceptional circumstances that the Court may allow an amendment overriding such rights, and that ordinarily such an amendment should not be allowed. Mr. Choksi has relied on Kisandas Rupchand v. Rachappa Vithoba 11 Bom. L.R. 1042, which was followed in Bhogilal v. Jethalal : (1928)30BOMLR1588 . In Kisandas's case the plain tiffs, alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants, sued for an order of dissolution of the partnership and for accounts. The Subordinate Judge found that the plaintiffs did deliver Rs. 4,001 worth of cloth to the defendants as alleged, but he also came to the conclusion that no partnership was created and that the suit as framed would not lie. The plaintiffs appealed, and when the appeal came on for hearing, they admitted that the facts stated in the plaint did not constitute a partnership and prayed for leave to amend the plaint by adding a prayer for the recovery of Rs. 4,001. At this date the claim for the money was barred by limitation. The lower appellate Court allowed the amendment to be made and allowed the plaintiffs' claim. The defendants in appeal to the High Court contended that the amendment had been wrongly allowed. It was held that the amendment had been rightly allowed, because the defence of limitation was a defence to which the defendants were never fairly entitled, and the allowance of the amendment only withdrew from them an advantage which they ought to have received. Batchelor J. referred to the two principles which should be satisfied before an amendment under Order VI, Rule 17 could be allowed, namely (a) it should not work injustice to the other side and (b) it should be necessary for the purpose of determining the real questions in controversy between the parties. In that case both the conditions were satisfied, and though it is stated that at the date when the amendment to the plaint was sought the money claimed had been barred by limitation, it was held that the defence of limitation was not one to which the plaintiffs had been ever fairly entitled. This circumstance, in my opinion, clearly distinguishes that case from the present case. Here at the date when the amendment application was filed the defendants had clearly become entitled to rely on limitation against the plaintiff for more than twelve years had expired from the date of the mortgage. There can also be no doubt that the plaintiff sought by the amendment to substitute a new cause of action for the one relied on originally in his plaint. For these reasons I am satisfied that the decisions in Kisandas Rupchand v. Rachappa Vithoba and Bhogilal v. Jethalal are inapplicable to the facts of this case and that the lower appellate Court was right in holding that the trial Court had not properly exercised its judicial discretion in allowing the amendment. The plaintiff had only himself to thank for seeking to get the plaint amended ten months after the date of the plaint, although within about two months after the plaint had been filed the defendants stated their whole case and specifically mentioned the mortgage of 1929. The plaintiff had thereafter three months more within which he might have applied for an amendment of the plaint, but they chose to do nothing till November, 1941, when their rights under the mortgage to possession had already been lost. In these circumstances it seems to me that the trial Court was not justified in allowing the amendment. The appeal, therefore, fails and is dismissed with costs.


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