1. According to the ruling of the Full Bench the only suit that the plaintiffs in this suit were entitled to institute was one for sale on the footing of their mortgage; and as the plaint contains no prayer for sale of the properties mortgaged to them the suit is liable to be dismissed. They ask for leave to amend the plaint by substituting a prayer for sale for the relief asked for in the plaint. This request is strongly opposed by the learned Counsel for the appellant. His opposition is based on several grounds. He contends that the proposed amendment would convert the suit into one of a character inconsistent with its present character as the plaint proceeds purely on the title acquired by the purchase of the property by the 2nd plaintiff at the sale in execution of the decree obtained by the 1st plaintiff. This objection is altogether untenable. The suit is really to enforce the plaintiffs' rights on the mortgage and on the court sale, and the amendment the plaintiffs wish to make now is intended to enforce the right which according to the Full Bench ruling they are entitled to in virtue of the mortgage and the sale. To a suit in ejectment based on the auction purchase only the 1st plaintiff would not be a necessary party at all. The plaint, moreover, sets out the plaintiffs' mortgage and asks the court to hold that the contending defendants have no subsisting right under their puisne mortgage or only the right to redeem the first mortgage. The cause of auction in the plaint as proposed to be amended would be the same as in the original plaint. The relief asked for alone would be different.
2. The second ground of opposition is that the plaintiffs persisted in both the courts below in maintaining their view as to the remedies open to them under the law, although the puisne mortgagees pointed out their error. We think that the plaintiffs can hardly be blamed for the view they took of their rights, having regard to the fact that both the lower courts upheld their contention. Besides, as is apparent from the judgment of the Full Bench, there has been considerable conflict in the judgments of the High Courts including this Court with respect to the remedies open to a person in plaintiffs' position. Mr. K.P.M. Menon has referred to several cases in which leave to amend was refused in appeal or second appeal when the plaintiffs, notwithstanding the objection taken by the defendant, did not ask for leave to amend in the lower court. We do not consider it necessary to refer to these cases in detail as none of them lays down any rule of general applicability. They proceed merely on the view taken in each particular case of the conduct of the plaintiff. It would not, in our opinion, be reasonable in the present case to refuse leave to amend on the ground that the plaintiffs' advisers adhered in the courts below to their view with respect to a complicated question of law, especially when that view was accepted by two courts.
3. The third and most important contention of the appellant's counsel is that leave to amend should not be granted where the result of the concession would be that the defendant would be deprived of the advantage which he would have, of raising a plea of limitation if the plaintiffs had to institute a fresh suit instead of amending their former plaint. The decisions in Weldon v. Neal (1887) 19 Q.B. 394, Mallikarjuna v. Pullayya I.L.R. (1892) M. 319. Alagappa Chetty v. Vellian I.L.R. (1894) M. 33 and Pattah Veeran Kutty v. Kunhi Kandi Shazhati Veettil Appu (1911) 2 M.W.N. 182 are relied on in support of this contention. It is not argued that these cases lay down any general rule that the court should, in no circumstances, allow an amendment of the plaint on the ground that the defendant would not be able, in consequence to plead limitation as a defence to the suit. Weldon v. Neal' which is really the basis of all the subsequent rulings, decides merely that the plaintiff will not be allowed to add fresh causes of action by way of amendment when if a fresh suit were instituted on these causes of action it would be barred by limitation. Even this position is stated by the learned Judges who decided that case to be subject to exceptions. We cannot hold that the case is applicable where the cause of action is the same, but the plaintiff has made a mistake as to the appropriate remedy which he would be entitled to in law on that cause of action. The established practice of the courts, both in England and in India, is to act with considerable liberality in the matter of granting amendments. Bowen L.J. observed in Cropper v. Smith (1889) 26 Ch. D. 700 : 'I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct.' The true test to be laid down with respect to the defendant's contention appears to us to be this : Where an amendment is necessitated by the plaintiff's carelessness or mistake it would not ordinarily be fair to allow him to rectify his error if the amendment would deprive the defendant of an advantage which he can legitimately claim to have gained by the plaintiff's mistake. But it would be hardly proper to apply this test to cases where the plaintiff cannot be charged with not having exercised reasonable care in the drafting of his plaint - see Nandlal Thakersey v. Bank of Bombay 11 Bom. L.R. 926. On the other hand it would be undesirable, according to the view of the Judicial Committee of the Privy Council in Mahammad Zahoor Ali Khan v. Mussumat Thakooranee Ratta Koer (1867) 11 M.I.A. 468, to allow the defendant to raise a dishonest plea of limitation by refusing permission to the plaintiff to amend his plaint, where he has acted with prudence and care - see Satappa Chetti v. Jogi Sorappah I.L.R. (1893) M. 67 where leave to amend was granted on the ground that the plaintiff's error was a 'not unnatural' one; Dhani Ram Shaha v. Bhaghirathi Saha I.L.R. (1875) C. 692 , where Banerjee J. overruled the defendant's opposition because there was no fraud or overreaching on the plaintiffs' part; Kishendas Rupchand v. Racchappe Vithoba I.L.R. (1909) B. 644 where Batchelor J. points out that the bar of limitation in case a fresh suit if launched would be barred is sometimes a proper ground for allowing an amendment instead of being an objection to doing, so.
4. The cases in Mallikarjuna v. Pullayya I.L.R. (1892) M. 319 and Alagappa Chetti v. Vallian I.L.R. (1894) M. 33 are not to the point, as the amendment sought in those cases was by way of introducing new parties into the suit. Section 22 of the Limitation Act expressly lays down that in such a case limitation would run up to the time of the addition of the fresh parties. With reference to the decision in Pattah Veer an Kutti v. Kunhi Kandi Shazhatt Veettil Appu (1911) 2 M.W.N. 182 we do not think that the learned judge who decided that case and proceeded on the authority of Weldon v. Neal (1887) 19 Q.B.D. 394 intended to lay down any general rule against allowing amendments where a suit or application would be barred at the date of the amendment, but merely held that in the particular case the party asking for leave to amend was not entitled to the indulgence. We are of opinion that, as no blame can be imputed to the plaintiffs in this suit for considering themselves entitled to the reliefs they asked for, we should allow them to amend their plaint by substituting a prayer for sale for the prayers for ejectment and foreclosure. The defendants concerned will be entitled to put in a fresh written statement if so advised, and any fresh issues arising on such written statement must of course be tried.
5. The decrees of the lower courts are therefore reversed and the suit is remanded to the court of first instance for trial in accordance with the above directions.
6. In the circumstances of the case, all costs incurred up to date must be reserved and abide the final decision of the suit.