1. In one respect I am prepared to go further than my learned brother. In my opinion no appeal lies in this case. As has been pointed out, the District Munsif disposed of the suit on all the issues framed by him, and it is not contended that those issues did not cover the whole suit as it originally stood or omitted any contention raised by the defendant in his written statement or at the settlement of issues. When a Court has disposed of the whole suit as it stands before it in that way, to say that it has disposed of the suit on a preliminary point merely because it has not dealt with the further issues which might have arisen if the suit had been framed otherwise originally or if an amendment of the pleadings had been allowed later in the history of the suit appears to me to be almost an abuse of language. I am clear that nothing in the opinion of the Full Bench in Raman Nair v. Krishnan Nambudripad I.L.R. (1922) M. 900 : 43 M.L.J. 354 would justify us in going so far as that. Mr. Patanjali Sastri suggested at one stage of his arguments that the history of the litigation which led up to the Full Bench decision was very similar to the history of this case. But on an examination of the printed papers in that case that suggestion appears to be incorrect, The plaintiff in that case did not, as Mr. Patanjali Sastri at first suggested, by a subsequent pleading put in after the written statement, raise a new plea, and the District Munsif was not held to have decided the suit against him on a preliminary point because he refused to take into consideration the contents of any such subsequent pleading. He decided the suit, it was held, on a preliminary point because he dealt with it on his view that the plaintiff did not raise in his original pleadings a certain plea, which the Subordinate Judge on appeal found he did raise, and shut out some evidence. That is quite unlike the present case.
2. But I agree that, although there is no appeal in this case, it is one in which we should interfere in revision. The learned District Munsifs refusal to allow the plaint to be amended appears to have been quite correct. As is well known, a plaint may be amended at any stage of a suit, subject to proper provision as to costs, for the purpose of bringing out the questions really in controversy between the parties or for correcting any mistake or error in the plaint which has obscured the plaintiff's real claim as intended by him; but plaints cannot properly be allowed to be amended if the amendment would change the 'fundamental character of the suit, would change a suit based on one legal relation into a suit based upon another one or a suit based upon one title into a suit based upon another title, when the plaintiff's claim on the second legal relation or title is time-barred on the date on which the application for amendment is made. Now, as has been pointed out in this case, the plaintiff's claim as the heir to the stridhanam property of Rajamanikathammal was time-barred on the date when he made his application for amendment to the District Munsif. If he had brought a suit on that basis on that date, he was bound to fail. But the learned District Judge has given him an opportunity nevertheless to sue on that time-barred claim. It appears to me that in so amending and remanding the suit the learned District Judge undoubtedly committed an irregularity in procedure, and, if it was an irregularity, it was certainly a material one. Therefore in my opinion this is a case in which we can interfere in revision and should do so.
3. I agree with the order proposed by my learned brother both' as to costs and otherwise.
Anantakrishna Aiyar, J.
4. The defendant has preferred this Civil Miscellaneous Appeal against the order of remand passed by the learned District Judge of South Arcot in Appeal No. 277 of 1928 on his file, by which he reversed the decision of the District Munsif of Chidambaram and remanded the suit for fresh disposal.
5. When this appeal was opened by the learned advocate for the appellant, Mr. Bhasihyam Aiyangar who appeared for the respondent-plaintiff raised a preliminary objection that the appeal is not maintainable as it could not be said that the order of remand passed by the learned District Judge was passed under Order 41, Rule 23 of the Code of Civil Procedure. The learned advocate argued that it must be taken that the order of remand in this case was passed under the inherent jurisdiction possessed by the appellate Court, and that in such cases no appeal would, lie to this Court against the order of remand. To the preliminary objection the learned advocate for the appellant answered by referring, us to the decision of the Full Bench reported in Raman, Nair v. Krishnan Nambudripad I.L.R. (1922) M. 900 : 43 M.L.J. 354. We were taken through the opinions delivered in that case by all the three learned Judges who heard the reference to the Full Bench and Mr. Patanjali Sastri for the appellant argued that the decision in the present case must be taken to be on a preliminary point within the meaning of the opinions of the learned Judges in the Full Bench case. Before dealing with this objection I think it is necessary that I should refer to the course the present case took in the first Court as well as in the Lower Appellate Court.
6. The plaintiff alleging that he was the reversioner to the estate of one Dharmalingam Pillai who died about 20 years ago filed the suit to recover possession of certain moveables or their value on the ground that they belonged to the estate of Dharmalingam Pillai and that on his death the same came to Rajamanikathammal, his widow, who died on the 29th August, 1924. The plaint, as we understand it, is based on the allegations that the properties belonged to the estate of the last male holder, that they were in the possession of his widow as a life-estate holder, and that on her death the defendant took possession of the same; and as the reversioner to the last male holder's estate the suit is laid by the plaintiff to recover possession of the moveables or their value. The plaint was filed on the 29th August, 1927. On the 10th November, 1927, the plaintiff filed an application to have the plaint amended by introducing a new cause of action. The plaintiff wanted to have the relief originally claimed in the plaint granted to him on the new ground that he put forward in the application, namely, that the properties belonged absolutely and as stridhanam properties to Rajamanikathammal, and as she left no nearer heirs than the plaintiff, the plaintiff wanted relief also on the footing that as the nearest heir of Rajamanikathammal, he would be entitled to those properties on the ground that they were the absolute stridhanam properties of that lady. The trial Court disallowed the plaintiff's request and dismissed that application and ruled that that was not a case where the plaintiff should be allowed to amend the plaint. The trial accordingly proceeded and the suit was, as originally laid (which was in fact the only plaint before the Court), tried on its merits on all the issues framed in the case, and the trial Court came to the conclusion that the properties referred to in the plaint did not belong to the last male holder but were the properties of Rajamanikathammal. The suit was accordingly dismissed by the trial Court. On plaintiff's appeal, the learned District Judge agreed substantially with the findings of the trial Court. The learned District Judge held that it was not proved that the properties were the properties of the last male holder. He also agreed with the trial Court that the properties were the absolute properties of Rajamanikathammal. There was some difference of opinion as to whether all the items in suit were given to Rajamanikathammal by the defendant in the case or whether some were given to her by the defendant and some by Dharmalingam Pillai, but the Lower Appellate Court concurred with the finding of the first Court that the properties were not the properties of Dharmalingam Pillai.
7. The Lower Appellate Court also agreed with the finding of the trial Court that, according to the allegations in the original plaint, it could not be reasonably contended that the plaintiff claimed any relief in the present suit based upon the properties being the absolute properties of Rajamanikathammal. The Lower Appellate Court was not prepared to accept the plaintiff's contention that, even without an amendment and on the allegation in the plaint as it stood, the plaintiff was entitled to have this new question also tried in the present suit. However, the learned District Judge thought that he should allow an amendment of the plaint by allowing the plaintiff to introduce into the plaint fresh allegations regarding the properties being the stridhanam properties of Rajamanikathammal and that the plaintiff was entitled to recover the same as the nearest heir of Rajamanikathammal. The defendant objected to the amendment. One of the grounds on which the defendant raised the objection was that on the date on which the application to amend the plaint was filed, the plaintiff's right to bring an independent suit claiming recovery of the properties on the footing of his being the heir to the stridhanam properties of Rajamanikathammal would be barred by limitation, and in the circumstances the defendant contended that the amendment should not be allowed. The learned District Judge, however, overruled the contention of the defendant, and directed that the plaint should be amended, as in his view the two claims could not be said to be 'inconsistent with one another'. He accordingly reversed the decree of the trial Court and remanded the suit for fresh disposal after allowing the plaintiff to amend the plaint in the way he sought to do. It is against this order of remand that the present appeal has been brought by the defendant.
8. In answer to the preliminary objections the learned advocate for the appellant relied strongly on the decision of the Full Bench reported in Raman Nair v. Krishnan Nambudripad I.L.R. (1922) M. 900 : 43 M.L.J. 354 and he argued that all points should be taken to be preliminary where, if the decision was in, one way, there would be no necessity to try other issues in the suit. I do not think it is necessary for purposes of this case to give a decided opinion on the question whether in the present case there would be a right of appeal or not; but before leaving this part of the case I should like to observe that in properly appreciating the point before the Full Bench in Raman Nair v. Krishnan Nambudripad I.L.R. (1922) M. 900 : 43 M.L.J. 354 it should be remembered that according to the pleadings in the plaint which was the subject of the reference before the Full Bench the plaintiff had filed a suit to recover possession of certain immoveable property and had alleged in the plaint that the defendants were holding the property on Adimayavana tenure and that they had declined to render services, and that accordingly the plaintiff was entitled to recover possession of the properties along with the paddy rent that had been allowed in respect of the services. The documents on which the suit was instituted contained reference to this 'Adimayavana.' The trial Court, however, declined to go into the matter because;, as it remarked, it was not mentioned in the plaint that there was a forfeiture, and therefore the plaintiff was not entitled to any relief based upon forfeiture by reason of the non-rendering of the services. The Lower Appellate Court, on appeal filed by the plaintiff in regard to the dismissal of the suit as regards possession, held that the allegations in the plaint were enough to enable the plaintiff to raise the question, and to make the matter clear the plaint might be amended accordingly. It accordingly reversed the trial Court's decree and remanded the case for fresh disposal. It is against the order of remand that an appeal was preferred to the High Court, in which a Full Bench reference was made. I make these observations because in understanding the observations of the learned Judges whose opinions were delivered in the case, it may probably be useful to remember exactly the facts of the case before them with reference to which they made those observations. In the case before me, it is not now pretended that the allegations in the plaint would entitle the plaintiff to have this new case tried by the Court. In fact both the trial Court as well as the District Judge on appeal in the present case agreed with the defendant's contention that the plaint, as it stands, could not in any way be said to refer to this aspect of the case at all. That being so, can I say that the present is a case which has been disposed of by the trial Court on a 'preliminary point' within the meaning of Order 41, Rule 23, Civil Procedure Code? It seems to me, as at present advised, that I cannot say that Order 41, Rule 23 applies to the case before me. . All the points that were actually raised before the trial Court were enquired into by that Court and findings have been recorded on all the issues framed; and the Lower Appellate Court has recorded an opinion in this case concurring with these findings of the trial Court. Taking it that it was open to the plaintiff to include in the, original plaint the present cause of action also, does the fact that he omitted in the first instance to include this cause of action in the plaint but subsequently changed his mind and wanted to have the scope of the original suit enlarged by adding this particular cause of action also, which the trial Court did not allow him to do, enable us to say that the disposal by the trial Court was on a preliminary point? It seems to me difficult to say that it was. Our attention was drawn to some cases where this question of what is a preliminary point within the meaning of Order 41, Rule 23 has been discussed. I must admit that on this question the cases are not uniform, and unless the case before us is covered by the Full Bench decision in which case of course we are hound by the same, it cannot be said that the matter is made dear by decided cases. As I said, it is not necessary for me to say decidedly whether an appeal lies or not in the present case, but as at present advised I think that it cannot be said that the disposal of the present suit by the trial Court was on a preliminary point within the meaning of Order 41, Rule 23. I have not thought it necessary to pursue this matter further, because 1 am clear that the present is a case where the High Court should interfere in its powers of revision. Order 41, Rule 23 limits the powers of the Appellate Court in the matter of passing orders on remand in cases where the trial Court's decision proceeded upon a preliminary point and the same is reversed on appeal. Now in the face of an express provision of law defining the powers of Appellate Courts to pass orders of remand, it seems to me at least doubtful whether Courts can rely upon the inherent power of remand in other cases. For the present, I do not think it is necessary for me to give a decided opinion upon this point, because, even assuming that Counts have got inherent powers in such cases, such powers should not be exercised in a case like the present. Here the plaintiff who was (I assume) at liberty to include the present cause of action also in his original plaint did not choose to do so. On the other hand certain statements made in the Lower Appellate Court would seem to suggest that the plaintiff omitted to do so for some purposes of his own. However, when he ultimately made up his mind to apply to the Court to have the plaint amended, admittedly a suit instituted on that new cause of action would be time-barred. Courts should not ordinarily exercise their powers of discretion in such matters where their allowing the plaintiff to amend the plaint would prejudice the defendant by making the plea of limitation unavailable (most probably) to him. Courts have held that in passing orders regarding amendment, this principle should not be lost sight of. There is also the further fact that the Lower Appellate Court in this case thought it fit to exercise its powers of amendment at a very late stage and after the suit had passed through the first Court and had been heard on the merits by the trial Court. In the circumstances, I think that it was at least an irregular exercise of its jurisdiction in the present case which we are entitled to correct by virtue of our powers of revision. The learned advocate for the respondent, however, argued that even assuming that the defendant had all the rights that I have mentioned, the present is not a case where the High Court would be justified in interfering in revision. I am unable to agree. Courts have held that powers of revision can be properly exercised in cases where, but for the High Court's intervention, there would be multiplicity of proceedings, the time of the Courts would be unnecessarily taken and the parties put to unnecessary expense. In the case reported in Sree Krishna Doss v. Chandook Chand I.L.R. (1908) M. 334 : 19 M.L.J. 307 Justice Miller had a case where it was argued that the High Court should not interfere in its powers of revision because the matter could be set right at a later stage by the filing of a fresh suit. This is what His Lordship stated in answer to the contention:
But here we have a case in which there is no doubt as to the rights of the parties, and no remedy if I do not interfere, except by a suit to which there can be no defence, and which therefore would merely multiply proceedings.
9. I may also refer to a recent decision of this Court reported in Ramaseshayya v. Venkataramayyai (1930) M.W.N. 584, where Cornish, J., and I had a case in which after a suit had been tried on its merits by the trial Court the Appellate Court ordered a remand for a new question to be tried whether the agreement relating to the exchange of two plots of land was opposed to public policy, a question not raised in either of the Lower Courts and which could not possibly arise having regard to the pleadings in the case. While holding that there would be no appeal against the order of remand passed in such a case, the Court held that the High Court was not only entitled but in fact was bound to interfere in revision in such circumstances. It therefore seems to me that the present is pre-eminently a case in which we should interfere in revision; and, accordingly, I would set aside the order of remand passed by the Lower Appellate Court and dismiss the Appeal No. 277 of 1928 preferred by the plaintiff to the Lower Appellate Court with costs in the Lower Appellate Court. I direct that the appeal before us be treated as a Civil Revision Petition and I pass orders on that footing. There will be no costs in the High Court.
10. In the result, the District Munsif's decision will be restored.