G.D. Sahgal, J.
1. The suit giving rise to this appeal was filed for recovery of money on the basis of a mortgage by only one of the mortgagees of his share of money due under the mortgage without any prayer for enforcement of security by sale of the mortgaged property. The suit was time-barred as the mortgage deed was executed on the 22nd of November, 1949 and the mortgage money was payable within three years, i.e., by the 22nd of November, 1952. The period of limitation for such a suit being six years, it expired on the 22nd of November, 1958, the suit itself being filed on the 22nd of November, 1964.
2. When faced with this situation, the plaintiff-appellant claimed that it was a suit for enforcing the mortgage security under Section 67 of the Transfer of Property Act and not under Section 68 of that Act and he sought the permission for making the co-mortgagees also parties to the suit This application was made long after the expiry of the period of limitation and was rejected by the learned Civil Judge with the result that ultimately the suit itself was dismissed as time-barred. An appeal was filed before the learned District Judge, Kheri who dismissed the same. This second appeal has been directed against the judgment and decree of the learned District Judge.
3. The only point for consideration in the case is as to whether the amendment ought to have been allowed and the two tower courts were wrong in rejecting the application for amendment.
4. The suit by one of the mortgagees only for a part of the share in the mortgaged property was not maintainable under Order XXXIV, Rule 1 of the Code of Civil Procedure and also Section 45 of the Indian Contract Act as would appear from a Full Bench case of this Court in Rameshwar Bux Singh v. Ganga Bux Singh, : AIR1950All598 . It was because of this that the appellant to make the other co-mortgagees also defendants in the suit But he came to move this application long after the period of limitation had expired, as the suit itself was filed on the last date of limitation if it could be treated as a suit for the enforcement of the mortgage security.
5. The rule as laid down in Charan Das v. Amir Khan, AIR 1921 P.C. 50 is as follows :
'That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases. .... where such considerations are outweighed by the special circumstances of the case. . . .'.
6. In Bhagwanii Morarji Goculdas v. Alembic Chemical Works Co. Ltd. the order of the High Court refusing leave to amend was upheld by the Privy Council because at the time the leave to amend was sought a new claim under the alleged implied agreement would have been barred by limitation.
7. There are, however, cases where in spite of the period of limitation having expired the amendment has been allowed to be made. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. : 1SCR438 a suit for damages for conversion was allowed to be converted into a suit for damages for breach of contract. The suit was based on an agreement (document Ex. A) in that case and it was only on account of the misunderstanding of the terms of the agreement that the suit was brought for damages for conversion and not for damages for breach of contract. The suit for damages for conversion would have been in order if the property in question in that case had passed to the plaintiff, but was wrongly withheld by the defendants But what was found was that the property in question had not passed to the plaintiff and that the defendants had been guilty of a breach of contract in not supplying the property to the plaintiff. It was, therefore, a case based on the misunderstandings of the legal position, there being no dispute as to facts.
8. Again in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil : 1SCR595 what happened was that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs, he asked for That defect was removed by the amendments The quality and the quantity of the reliefs sought remained the same. Following the principle laid down by Batchelor, J. in Kisandas Rupchand v. Rachappa Vithoba Shilwant, (19091 ILR 33 Bom 644 at pp 649-650 viz.,
'. . all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. . . .but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine That doctrine, as I understand it is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular ease of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of acause of action which since the institutionof the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore, still remains the same; can the amendment be allowed without injustice to the other side or can it not?'
the amendment was held to be in order.
These observations were made by Batchelor, J, in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4,001. At that date the claim for the money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim.
9. In the instant case, what we find is that the claim was not only time-barred on the date the amendment was sought to be made but even on the date the suit itself was filed the claim could not have been decreed without the co-mortgagees being made parties to it. The co-mortgagees, therefore, cannot be allowed to be made parties to the case as the effect of their being made parties to the case amounts to giving life to a case which was already dead. The case is different from the cases where we have all the facts of the case before us and there is only some error on the part of the counsel in the drafting of the pleadings. Here it is not a defect in the drafting of pleadings as pointed out in AIR 1921 PC 50 (supra) that is a defect of form only arising out of clumsy blundering as a result of an attempt being made of asserting rights that the plaintiff undoubtedly possessed under the statute in a form which the statute did not permit, but a defect of non-joinder in the frame of the suit itself which was sought to be cured by the amendment The two courts therefore, were right in refusing the amendment.
10. The appeal has no force and is summarily dismissed.