B.C. Misra, J.
(1) This revision petition has been filed by the defendants against an order of the trial Court dated 21st March, 1973 by which it had disallowed their, application for amendment of the application for leave to appear and defend the suit.
(2) The material facts giving rise to the revision are that the plaintiffs (respondents herein) on 25th August, 1972 instituted a suit for the recovery of Rs. 13,662.43 on the basis of cheques under the provisions of Order 37 of the Code of Civil Procedure. Summonses of the suit were issued and served on the defendant-petitioners on 25th October, 1972 The defendants filed an application under Order 37. Rule 3 of the Code which, was contested by the respondents who in their reply filed on 25th November, 1972 raised an objection that the petitioners had in their application made no prayer for leave to defend the suit, but had claimed; that the suit was barred by time and not maintainable and be dismissed. On the 19th December, 1972, the defendant-petitioners filed an application under Order 6, Rule 17 and section 153 Code of Civil Procedure for leave to amend paragraph 8 of the application. This application was resisted and the Court below by the impugned order has held that the application for amendment had been moved after the expiry of 10 days which was the period prescribed for filing the application for leave to appeal and defend the suit arid so it dismissed it oh this ground alone. [After citing para 8 the judgment proceeds]
(3) The defendant-petitioners in the aforesaid application had titled it as an application on behalf of the defendants under Order- 37, Rule 3 read with section 151, Civil Procedure Code . for leave to defend the suit unconditionally. In the body of the application, they had contended that the suit of the plaintiff was barred by time .and, was not maintainable under Order 37 of the Code. They had denied the consideration of the cheques in in dispute and had stated that the cheques were not meant for presentation they also denied the accrual of the cause of action and asserted that notransaction had taken place between the parties. In paragraph 1 of the additional pleas, the defendants had also stated that the summons of the case had been received by them on 25th October, 1972 and the reply was being filed within the prescribed period of 10 days and this was without prejudice to the fact that the suit under Order 37 of the: Code was not maintainable.
(4) A perusal of the title and contents of the application shows that the defendants in substance were filing an application under Order 37, Rule 3 of the Code and they had made material allegations to seek relief to appear and defend the suit. The application shows that it gives notice to the plaintiff that the defendants were filing a reply within. the prescribed period of limitation and they were challenging the maintainability of the suit under Order 37 and were urging that the suit must be dismissed. Asa matter of fact, the defendants had in this application asked for a much larger relief than they were entitled to obtain at that stage of the suit. Really they ought to have asked for leave to appear and defend the suit and on its being granted, then in the written statement raise pleas to show that suit was liable to be dismissed. It is, however, open to the Court to grant lesser relief than asked for or even the relief which had not been asked for if the facts and pleas necessary for such relief had been pleaded. It cannot be contended that in asking for the dismissal of the suit at that stage and applying for amendment to have the relief for leave to appear and defend the suit, the defendants had not made an application, within the prescribed period of limitation or they had by their omission to make the correct prayer caused any surprise or prejudice to the plaintiffs. The Privy council in Mashwe Mya vs. Maung Ma Hnuang A.I.R. 1922 PC 249, observed that all rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is essential that they should be made to serve and be subordinate to that purpose and should always be liberally exercised and that it would be regrettable if, when in fact the whole of a controversy between the parties was properly open, rigid rules prevent its determination. In Gopal vs Mohammed Jaffar : AIR1954SC5 , the Court directed amendment of the plaint to be made at stage of appeal before the High Court where the plaintiff had failed to claim the relief in proper form, though the facts on which the relief in proper form could be given had all been set out in the plaint and it was considered that the amendment accordingly was of a purely formal character. Similarly in Nanduri Lakshminarasimhachar vs . Smt. Agasthee Swaraswamivaru. : 2SCR768 , the Court approved the order of the High Court in allowing amendment at the appellate stage by addition of a new prayer in the prayer cause when all the material allegations had been made in the plaint and the the parties were fully cognisant of the point in controversy.
(5) The Supreme Court in LJ. Leach and Company Limited Vs . Messrs Jardine Skinner and Company : 1SCR438 , held that it was no doubt true that the Court would, as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application, but that was a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and did not effect the power of the Court to order it, if that was required in the interests of justice. The Privy Council in Charan Das v. Amir Khan A.I.R. 1920 PC 50, observed that there was full power to make the amendment which could be disputed and though such a power should not, as a rule, be exercised where its effect was to take away from a defendant a legal right which had accrued to him by lapse of time, yet there are cases where such considerations were outweighed by the special circumstances of the case. The Supreme Court in P.H. Patil Vs . K.S. Patil : 1SCR595 , the authority on which the learned counsel for the respondents has placed strong reliance, has approved the rule of law laid down by the High Court of Bombay in Kisandas Rupchand v. Rupchand Vithoba I.L.R. 1957 Bom 644, and has observed that all amendment ought to be allowed which satisfy the two conditions, namely (1) not working injustice to the other side and (2) of being necessary for the purpose of determining the real question in controversy between the parties; amendments should be refused only where the other parly 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. The Supreme Court then proceeded to observe that it was merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit, had become barred by limitation, the amendment must be refused; to allow if would be to cause to defendant an injury which could not be compensated in cost by depriving him of a good defense to the claim the ultimate test, thereforee, still remains the same can the amendment be allowed without injustice to the other side or can it not
(6) In a still later decision, the Supreme Court in Jai Jai Ram Manohar Lal Vs . National Building Material Supply, Gurgaon, : 1SCR22 , again had an occasion to consider the scope of Order 6, Rule 17 of the Code of Civil Procedure and it observed as follows :-
'RULESof procedure are intended to be a handmaid to the administration of justice as party cannot be refused just relief merely because of. some mistake, negligence, inadvertence or even .infraction of the rules of procedure the Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by blunder, he had caused injury to his opponent which may not be compensated for by an order of costs however, negligent or careless may have been the first omission and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.'
In this case the Supreme Court set aside the order of the High Court which had refused amendment in the misdescription of the original plaintiffs.
(7) Applying the aforesaid tests laid down by the Supreme Court, I am of the view that the claim being barred by time is not an absolute ground for refusal of amendment, but it only constitutes a factor for consideration in exercise of the discretion. But where no new cause of action is sought to be introduced, the question of limitation is irrelevant. In the instant case, no new facts or set of ideas are sought to be introduced by the amendment and in fact without altering the material allegations already made. the amendment sought is for substitution of a proper relief according to law in place of a larger or wrong relief originally claimed. It was open to the Court to grant a smaller or appropriate relief even without the amendment, but the amendment is only of a formal nature and ought to have been allowed. The Court below has committed a jurisdictional error in not applying the correct principles of law and in not examining the true nature of the existing application of the defendants and their application for amendment. It has erred in not taking into consideration the real matter in controversy between the parties and whether the allowance of the application for amendment would cause any surprise, prejudice, or irreparable injury to the plaintiff and whether or not the award of costs would have compensated the plaintiff for the delay in moving the application for amendment.
(8) Mr. Harnam Dass, counsel for the plaintiff-respondent has also contended that Order 6, Rule 17 of the Civil Procedure Code applies only to the pleadings, the plaint and the written statement as defined by rule 1 of Order 6 and it does not apply to the application of the defendants. This objection has no merit. The same rules which govern amendment of the pleadings will apply to the amendment of the applications filed under the Code. Even apart from Order 6 Rule 17, the general power to allow amendments is conferred on the Court by section 153 of the Code. Under this section, the Court has the power to amend any defect or error in any proceeding in a suit and all necessary amendments are directed to be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Reference may be made to Pallipurayia Asan Kutti v. Mukkolakkal Keyaman Kutti A.I.R. 1937 Mad 352, in which it has been held that the word 'proceeding' in section 153 of the Code means any application to a Court of justice however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. I respectfully agree with the aforesaid observation and reject the contention of the respondent. (M.G. Dhingra, Adv.)