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Dr. Mela Ram Vs. F. Joginder Singh and Co. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 524 of 1950
Judge
Reported inAIR1952P& H246
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantDr. Mela Ram
RespondentF. Joginder Singh and Co.
Appellant Advocate P.L. Bahl, Adv.
Respondent Advocate A.N. Grover, Adv.
Cases ReferredBhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........sued upon irrespective of promissory note and need no new facts for its support. this being so, a suit brought within three years from the last payment of instalment is in time.8. a judgment of the lahore high court in 'muhammad ism ail khan v. said-ud-din khan', air 1927 lah 819, was then referred to. in that case it was laid down that : 'courts have full power of amendment, and though such a power should not as a rule be exercised where its effect is to take away from defendant a legal right which had accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case.' 9. counsel also relied on 'sevugan chetty v. krishna aiyangar', 38 mad 378 and on 'darbari lal v. wash malik', 56 ind cas 115; but i do not think.....
Judgment:
ORDER

Kapur, J.

1. This is a rule directed against a judgment of Mr. Chaman Lal Puri allowing a limited amendment of the plaint.

2. A suit was brought by the plaintiff, Sant Ram for the recovery of money on the basis of cash and cheques given by him to the defendant firm and also for money due on bricks returned. The amounts claimed are as follows:

Rs. 100/- cash paid on 6th May 1947.

Rs. 100/- paid by cheque on 24th July 1947.

Rs. 162/5/- paid by cheque on 26th July 1947.

Rs. 1,000/- paid by cheque on 21st August 1947. Some bricks were agreed to be exchanged for other bricks, and on this account the plaintiff claimed Rs. 332/- and after giving the defendant credit for bricks worth of Rs. 300/- he brought a suit for the recovery of Rs. 1,394/5/-.

3. The defendant pleaded that he had supplied bricks worth Rs. 2,938/7/3 and this amount was due to him for which he would bring a suit. On the 7th of February 1950, an issue was raised, whether bricks worth more than the amount claimed by the plaintiff had been supplied by the defendant.

4. On the 29th of July 1950, the plaintiff applied for amendment of the plaint and wished to include in his statement of claim a sum of Rs. 3,000/- which he had said had been paid to the defendant by cheques of Rs. 1,000/- each dated the 8th of April 1947, 22nd May 1947, and the 15th of July 1947. The learned Judge allowed the amendment to this extent that he could plead that he had made these payments, but he could not ask for a decree for those extra, amounts. A revision was brought against this order and the rule was issued by my Lord, the Chief Justice,

5. Mr. Bahl submits that even though his claim might have been barred on the date of the application for amendment, the amendment should have been allowed to do complete justice between the parties, and he relied on 'Chran Das v. Amir Khan', 48 Cal 110 (PC), a judgment of their Lordships of the Privy Council. In this case at p. 116 Lord Buckmaster said:

'...... 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. But if once it accepted that they were attempting to establish those rights there is no sufficient reason shown for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their intention in a plainer and less ambiguous manner.'

All that their Lordships said in this case was that the plaintiffs be allowed to put the claim hi proper language and remove ambiguities.

6. The nest judgment relied upon by Mr. Bahl is 'Satchidananda v. Nritya Nath', 50 Cal 878, Here it was held that it was competent to the Court to allow the plaint to be amended even after the expiry of the period prescribed for the institution of a new suit.

7. He next relied on a Full Bench Judgment of the Madras High Court, 'Official Assignee v. V. A. Kuppuswami Naidu', AIR 1936 Mad 785 (FB), where a suit was brought on a promissory note which was barred by limitation and the plaint was allowed to be amended so as to bring the suit on the original cause of action. In this case it was held that the plaint can be amended so as to base the claim on the basis of the original debt because the original debt can be sued upon irrespective of promissory note and need no new facts for its support. This being so, a suit brought within three years from the last payment of instalment is in time.

8. A judgment of the Lahore High Court in 'Muhammad Ism Ail Khan v. Said-Ud-Din Khan', AIR 1927 Lah 819, was then referred to. In that case it was laid down that :

'Courts have full power of amendment, and though such a power should not as a rule be exercised where its effect is to take away from defendant a legal right which had accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case.'

9. Counsel also relied on 'Sevugan Chetty v. Krishna Aiyangar', 38 Mad 378 and on 'Darbari Lal v. Wash Malik', 56 Ind Cas 115; but I do not think anyone of the cases which have been quoted is of much assistance. In none of these cases was an amendment allowed where a new cause of action was sought to be introduced or new items which were barred by time were allowed to be brought into the plaint.

10. In 'Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd.'. AIR 1948 p C 100, it has been held that an amendment of the plaint introducing a new claim, which would have been barred by limitation, at the time when the leave was sought, cannot be allowed. This is a judgment of their Lordships of the Privy Council which applies to the facts of the present case. What the plaintiff is now asking is leave to introduce a new claim on the basis of the three cheques which would be barred at the time when the amendment was sought for.

11. In my opinion, the amendment should notbe allowed and the order of the trial Court shouldbe modified in that instead of allowing the introduction of these cheques in the plaint I order thatthe application for amendment should be whollyrefused.


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