S.S. Chadha, J.
(1) An interesting question of law has been raised in this revision petition, namely, whether an amendment of the plaint having the effect of the bypassing of the extinguishment of right, title and interest under Section 27 of the Limitation Act, 1963, can be allowed. It has arisen on these facts
(2) Bhagchand Motumal Mamtani (for short plaintiff.) filed on April 27, 1976 a suit in the Subordinate Court against Shri Jawahar Lal Motumal Mamtani (Defendant No. 1). The plaintiff claims to be the owner and in possession of the one storeyed building No. III-C/37 Lajpat Nagar, New Delhi (hereinafter called the property in dispute). Defendant No. 1 is the real brother and defendant No. 2 is the real sister of the plaintiff. The allegations made in the plaint are that in the year 1963 the defendants were allowed to stay in the property in dispute with the plaintiff as licensee under him; that in the year 1965 defendant No. 1 filed a suit for partition against the plaintiff and others; that the plaintiff in the year 1965 revoked the license allowing the defendants to stay and use the property in dispute; that by judgment and decree dated October 3, 1975 in suit No. 181 of 67 this Court held that the property in dispute is solely owned by the plaintiff and the defendants have no right, title or interest in the property in dispute and that the suit of defendant No. 1 was dismissed by this Court. It is further averred that in the year 1965 and up to the date of the filing of the suit the plaintiff has been as long as the defendants to stop using the property in dispute, to remove their goods from the property in dispute and also to vacate the property in dispute in the possession of the plaintiff. The plaintiff also claims damages for use and occupation of the property in dispute as compensation for the period April 27, 1973 to June 26, 1976 @ Rs. 250 per month amounting to Rs. 9000. The relief clause in the unamended plaint is:
'IT is prayed that the decree with costs for a mandatory injunction directing the defendant to stop using the said property, to remove their goods from the said property and to vacate the above said property and for Rs. 9000 on account of compensation and also for future compensation for use and occupation @ Rs. 250 per month for the period from the date of the suit till the date of stop using the property, removing the goods and vacating the said property be passed in favor of the plaintiff and against the defendants with costs.
(3) Defendant No. 1 filed R. F. A. (OS. 27 of 76 against the judgment and decree dated October 3, 1975. The appeal was dismissed by a Division Bench of this Court on December 21, 1979. The plaintiff then moved an application on January 5, 1980 under Order 6 Rule 17 read with Section 151 Civil Procedure Code . for amendment of the plaint to add three more paragraphs and a further relief. Proposed para 11 narrates the facts of the filing and the dismissal of the appeal on December 21, 1979 and it operating as rest judicata against the defendants. Para 12 relates to the details of the portion in occupation and for the common use of the defendants in the property in dispute and a copy of the plan is proposed to be annexed. In para 13 the plaintiff claims to be entitled to the exclusive possession of the entire house as well as he is entitled to dispossess the defendants from the entire house. The consequential change is that the suit is valued for the purposes of possession at Rs. 5000 and proper court-fee is paid thereon. In the prayer Clause in addition to the reliefs already sought; it is proposed to be added. : -
'AND to pass a decree for possession of the house No. III/C-37, Lajpat Nagar, New Delhi in favor of the plaintiff by dispossessing the defendants from the said house and giving possession to the plaintiff and pass any other order arid decree which the Hon'ble court may deem just and proper.'
(4) The application for amendment of the plaint was opposed by defendant No. 1. It is stated that on January 7, 1980 defendant No. 1 filed a suit in the High Court being suit No. 26 of 1980 with a prayer that defendant No. 1 being the owner of the property in dispute be declared as such. It is pleaded that although the limitation for the suit for possession commenced in 1962 and that bad already expired in 1974, defendant No. 1 is submitting successive cases for limitation; that the limitation again began to run in 1963, again on several occasion in 1965-66, when the title of the plaintiff was denied and again in 1967 and that the limitation that began to run in 1965, 1966, 1967 expired in 1977, 1978 and 1979. As a valuable right has accrued to defendant No. 1 by expiry of limitation and that right is the right of the ownership of the property in dispute which is valued at Rs. 1,60,000, no amendment can be allowed to defeat that right.
(5) By the impugned order dated April 21, 1980 Shri Bhola Dutt. Sub Judge 1st Class, Delhi has allowed the application for amendment of the plaint as prayed for on payment of Rs. 50 as costs. Defendant: No. 1 (petitioner herein) filed the present petition for revision under Section 115 Civil Procedure Code At the time of the admission of the revision petition, Mr. Arun Mohan learned counsel for defendant No. 1, contended that even it the trial court was justified in allowing the amendment of the plaint, the amendment ought to have been made effective only as from the date on which it was allowed and should not be impliedly deemed to relate back to the date of the institution of the suit. T.P.S. Chawla J. expressed the view that such a preposition was not thought to be tenable as it seemed that a condition that the Amendment would operate from the date it was allowed was destructive of the whole theory of amendment and defeated its very purpose. Another Single Judge of this Court had expressed the opinion in an earlier reported case that it could be made effective in suitable cases from the date of application for amendment. Chawla J. formulated to following question : -
'CAN the Court by. allowing an amendment under Order 6 rule 17 of the Code of Civil Procedure, order that the amendment shall take effect from the date of the application for amendment and not the date of the institution of the suit.'
and placed the case before Hon'ble the Chief Justice for constituting a larger Bench. It was later constituted. A Division Bench of this Court by order dated October 16, 1980 answered the reference in the affirmative. No observation was made on the merits of the amendment as to whether the amendment as allowed or not allowed was correct or incorrect. The case was sent back to the Single Judge for decision of the revision petition on merits. This is how the revision petition is before me for disposal.
(6) Mr. Arun Mohan does not dispute that while determining the nature of the suit and the relief claimed the plaint has to be read and construed as a whole and it is the substance which is the guiding factor. He says that it is for the plaintiff to choose whether he wishes to proceed with the suit on the original plaint and it will then be open to defendant No. 1 to raise legal objections to the maintainability of the suit or otherwise at the trial. If the plaint of the suit is construed as a suit for possession then the application made by the plaintiff contains allegations in line with what was stated in the original plaint. In that case the amendments would be redundant and could not be allowed. The counsel does not ask this Court to examine the plaint as a whole and to express as to what is the nature of the relief and proceeds on the assumption that the relief of possession is distinct. The plaintiff has chosen to seek an amendment of the plaint by incorporating facts as to the portion in occupation of the defendants and alleging that the plaintiff is entitled to the exclusive possession of the entire house and on that basis the plaintiff seeks a decree for,possession of H. No. III/C-37, Lajpat Nagar, New Delhi by dispossessing the defendants from the property in dispute. The counsel submits that it is the additional facts and the relief which the plaintiff is claiming by way of amendment that threatens to deprive defendant No. 1 of his valuable right in the property acquired by prescription as the license was revoked according to the plaintiff himself in the year 1965 and the possession became adverse. In support reliance is placed on Section 27 of the Limitation Act, 1963. It is urged that in view of the principles underlying Section 27 the plaintiff's right to the property in dispute must be held to have been extinguished on the determination of the period of twelve years when the possession of defendant No. 1 became adverse to the plaintiff. The contention is that on the expiry of the statutory period the plaintiff has not merely lost his right to sue for possession of the property in dispute but his right in the property in dispute itself has been extinguished. Relying on 'East and West Steamship Vs . S. K. Ramalingam., : 3SCR820 (1), the counsel submits that there is a distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though the distinction is fine yet it is of great importance. Section 3 of the Limitation Act, 1963 provides a bar of limitation and every suit instituted after the period prescribed is to be dismissed although limitation has not been set up as a defense. In those cases, the right is not extinguished but the right to claim the relief is not enforceable because of the bar of limitation. In case of immovable .property on the determination of the period limited to any person for instituting a suit for possession of any property, his right to such property gets extinguished. Reliance is placed on 'Yeshwantrao Laxmanrao Ghatge and another vs . Baburao Bala Yadav, : 2SCR814 (2) wherein it was held : -
'THE effect of Section 28 of the Limitation Act was that right to the property was extinguished resulting in conferment of a title by adverse possession on the persons in possession of the concerned properties. It is well known that the effect of Section 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone.'
There is .the extinction of the title in the property by adverse possession beyond a period of 12 years and an acquisition of title by law of prescription and so defendant No. 1, according to the counsel, could not be divested of that title by allowing the amendment to operate from the date the suit was filed.
(7) On the other hand the argument, of Shri Ram Panjwani, the learned counsel for the plaintiff is that though the trial court had a discretion to decline to allow amendment, if a fresh suit on the amended claim would be barred by limitation on the date of the application and this was a factor which was taken into consideration by the trial court in exercise of its discretion, yet the amendment was allowed as the amendment was required in the interest of justice. It is urged that the discretion exercised by the trial court is not to be interfered within a petition under section 115 of the Code of Civil Procedure. Section 115 applies to jurisdiction alone; that is the irregular exercise, non exercise of it or the illegal assumption of it. Reliance is placed on 'Amir Khan vs. Sheo Baksh Singh' I.L.R. 11 Cal 6 Bala Krishan v. Vasudeva Iyyer Air 1917 P.C. 71 and Sehdev Seth v. Vidya Vati Air 1974 Del 234 that this Court should not interfere in the discretion of the trial court. On merits the submission is that the Court has the power to allow amendments if it is required in the interest of justice even to include a claim which would be barred by limitation on the date of the application. Reliance is placed on 'L.J. Leach and Co. Ltd. and another vs. M/s. Jordine Skinner and Co.' : 1SCR438 (6), 'Charan Dass vs. Amir Khan' 1921 P.C. 50 and various cases applying the law laid down in the aforesaid two cases and also on 'Suraj Prakash vs. Raj Mani' 1981 S.C. 485 wherein it is held :
'THE liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted of the opposite party under pretence of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung, Air 1922 Pc 249 : see p. 1283-84, of Air Com. Civil Procedure Code - (1908) Edn. 2. All rules of court are nothing but provisions intended to secure the proper administration of justice and it is, thereforee, essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.'
I find considerable merit in the submissions of the counsel for defendant No. 1. Order 6 Rule 17 of the Code of Civil Procedure provides that 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 shall be made as may be necessary for the purpose of determining the real question between the parties. The power to allow an amendment is undoubtedly Wide and it will be permissible when it is necessary for the determination of the real controversy in the suit. It can be exercised at any stage in the interest of justice, the law limitation notwithstanding. The established rule of conduct of the Court is that however negligent or careless the first omission may have been, and however late the proposed amendments, it should be allowed if it can be made without injustice to the other side. One of the cases in which an amendment may work injustice is where it takes away from a party a right accrued to him by lapse of time. There may however, be, special circumstances to allow the amendment even though the claim may have become barred by limitation since the filing of the plaint.' It is no doubt true that courts 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 is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.' (Se Leach & Co. Ltd. vs. M/s. Jordine Skinner Ltd., : 1SCR438 .
(8) The plaintiff on the strength of the title to the property in dispute alleges that in the year 1965 and up to the date of the filing of the suit the plaintiff has been asking the defendants to stop using the property in dispute, to remove their goods from the property in dispute and also to vacate the property in dispute in the possession of the plaintiff. This cause of action allowed the plaintiff two alternative reliefs, and on the suit as framed in the original unamended plaint the plaintiff claimed only the relief of a mandatory injunction directing the defendants to stop using the property, to remove their goods and to vacate the property. The plaintiff by way of amendment now seeks in addition the second alternative relief of possession of the property in dispute. If the plaintiff could not or need not have sued for possession, then section 27 of the Limitation Act, 1963 is not attracted. In that case there is no question of any determination of the period limited to him for instituting a suit for possession. The plaintiff claims in the plaint of the suit to be in possession of the property in dispute. If it is so established then obviously there is no need to sue for possession. The amendment sought is then redundent. The plaintiff wants to exercise his right to sue and claim in addition the relief for possession on the basis of his title in the property in dispute which only belongs to the true owner. The allegations of the defendants are that the plaintiff has suffered his right to be forfeited at the determination of the period of twelve years limited for instituting a suit for possession. The title of the plaintiff has become extinct or destroyed and got vested in favor of the defendants who are in possession. The extinguishment of the title of the rightful owner operates in law a good title to the wrong door who acquires it by prescription. Defendant No. 1 has already filed a suit for a declaration of his title so acquired in this Court and that suit is pending determination. This objection was pointedly raised before the Court below but not considered at all with the result that there is clear illegality in the exercise of jurisdiction.
(9) The law of limitation bars the remedy of plaintiff but does not extinguish his right. It is meant to see that the plaintiff does not resort to dilatory tactics, but seeks his remedy within a time fixed by the legislature. The right continues to exist notwithstanding that the remedy is barred by limitation. A debtor may pay the time barred debt to the creditor. He cannot claim if back on the plea that it was time barred. A debtor who owes several debts to a creditor may pay a sum of money to the creditor. If there is no specification, then the creditor can adjust the payment towards any of the debts, including the one whose recovery is barred by limitation. A barred debt can constitute a Valid consideration for a fresh contract. Under Section 25(3) of the Contract Act, 1872 an agreement in writing undertaking to pay a time barred debt is valid and binding. But there are special cases in which, on the remedy becoming barred by limitation, the right itself is extinguished like the one contemplated in Section 27 of the Limitation Act, 1963. It says that at the determination of the period thereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The law of limitation has to be distinguished from the law of prescription when. there is a conferment of the title on the person in possession,. Whether the plaintiff can obtain the complete relief on the original plaint or not, I am not called upon to pronounce. Obviously he is playing safe and wants to amend the plaint for the additional relief. If the amendment is allowed to take effect from the date. of the original plaint, then it may have the effect of reviving the title of the original owner who has lost it by prescription. Such an amendment would work injustice to defendant No. 1 and cannot be allowed.
(10) In Charan Dass's case (supra) heavily relied upon by Shri Ranjwani, the defendants there in their defense admitted the plaintiffs right to preemption, but pointed out that a mere claim to such a right was not a claim to any right to property within the meaning of Section 42 of the Specific Relief Act, and the right of preemption could not be enforced by a mere declaratory decree. The plaintiffs there then applied to have their claim amended by asking the substantive relief and the amendment was allowed by the Judicial Commissioner. Their Lordship of the Privy Council expressed that the plaintiffs there through some clumpy blundering attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit. It was further observed that it would be quite open to the interpretation that they had in fact claimed preemption and not the declaration of the rights. Their Lordship however, noticed that a power of amendment 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, but such consideration was held as outweighed by the special circumstances option was held as outweighed by the special circumstances of the case. Even in that case the suit for possession by preemption on the date of the amendment was only barred by time. A plea that the suit is not brought within the period of limitation, is, different and distinct from the plea that the right in the property is itself destroyed or extinguished. I am, thereforee, interfering as there is a gross and palpable of the trial court and it is with an object to prevent manifest injustice to the defendants.
(11) The plaintiff is seeking to amend the plaint by setting up a fresh claim and relief in respect of a cause of action which since the institution of the suit has become extinct. To allow such an amendment from the date of the institution of the suit has the effect of divesting the title, an injury which can never be compensated by costs. The amendment from the date of the plaint cannot be allowed as it would work injustice to defendant No. 1. Any observation made may not be taken as an expression of any opinion that the plaintiff has been deprived of his 'title or defendant No. 1 has been successful in getting his adverse possession upheld. These questions will have to be determined in Civil Suits.
(12) For the above reasons the revision petition succeeds to the extent that the amendment of the plaint would take effect from the date of the application and not from the date of the institution of the suit. On the facts and circumstances of the case, I make no order as to costs.