1. Defendant is the petitioner. He was sued on a promissory note. The plaintiff's suit was filed after the expiration of the prescribed period of limitation. He accordingly, in pursuance of Order 7, Rule 6, Civil Procedure Code, stated in his plaint the ground on which he claimed exemption from the law of limitation. The ground was that there had been a part payment towards principal and interest on 15th June, 1925, by the defendant 'as per Vaddichittai filed herewith'. Some months later it apparently occurred to the plaintiff or his advisers that the ground alleged in the plaint could not be relied on, and an application was made to amend the plaint by averring payments on later dates by the defendant towards interest. The application was opposed by the defendant as out of time, and the application to amend was withdrawn. As a matter of fact, the payment pleaded was found to have been made towards principal, and as the fact of payment did not appear in the handwriting of the defendant as required by Section 20, Limitation Act, it did not avail to give a fresh starting point for limitation. But the Subordinate Judge, following certain cases which will be referred to presently allowed the plaintiff to prove the later payments towards interest, notwithstanding that they had not been pleaded in the plaint as a ground of exemption from the law of limitation, and decreed the plaintiff's suit.
2. In Jogeshivar Roy v. Raj Narain Mitter I.L.R. (1903) 31 Cal. 195 a Bench of three Judges held that the plaintiff who pleaded acknowledgment of a particular debt as an exemption from the Limitation Act was debarred by Section 50, Civil Procedure Code (corresponding, to Order 7, Rule 6) from proving another acknowledgment at a later date. But the Court indicated that the plaintiff might get over the difficulty by obtaining leave to amend his plaint. The decision was criticised by Beaman, J., in Yakub Ebrahim v. Bai Rahimatbai : (1908)10BOMLR346 . In that case the plaintiff alleged in his plaint that the defendant being an executor of his deceased creditor, there could be no bar of limitation. At the trial plaintiff sought to establish that the defendant was an express trustee within Section 10 of the Limitation Act. The learned Judge said:
It seems to me that when a plaintiff does satisfy the requirements of Section 50, Civil Procedure Code, by stating what is in his opinion the ground upon which he intends to get over the bar of limitation, he ought not to be precluded from taking another and not inconsistent ground should he be later advised that the latter is the true ground.
3. This opinion was approved in Nistarini Debi v. Chandi Dasi Debi (1910) 12 C.L.J. 423. But the Court proceeded to show that the proper course, would be for the plaintiff to apply for leave to amend the plaint. Referring to Order 7, Rule 6, the judgment says:
The discretion of the Court in the mutter of granting or refusing an application for amendment of the plaint cannot be restricted by an inflexible rule of law. It must be decided on the circumstances of each individual case, whether such application should be granted of not.
4. In other words, Order 7, Rule 6 did not stand in the way of an amendment of the plaint. In Hingu Miah v. Heramba Chandra Chakrabarti (1910) 13 C.L.J. 139, the judgment, as in the prior case, was delivered by Mookerjee, J. It cites Yakub Ebrahim v. Bai Rahimatbai : (1908)10BOMLR346 and Nistarini Debi v. Chandi Dasi Debi (1920) 60 I.C. 772 as authority for the proposition that if the plaint shows the ground of exemption, Order 7, Rule 6 is satisfied and the plaintiff ought not to be precluded from taking another and inconsistent ground. This ruling was adopted in Parmeshri Das v. Fakiria (1920) 60 I.C. 772 by the Lahore High Court, though the point actually decided was that a plaintiff who has not pleaded a special ground of exemption might nevertheless take advantage of an admission made by the defendant in his written statement.
5. The learned Subordinate Judge in the present case has, quite reasonably, understood the two cases last cited as laying down that if a plaintiff pleads a ground of exemption, (which may be a bad ground but sufficient for the purpose of saving his plaint from rejection under Order 7, Rule 11), he is free to urge any other ground at the trial without the necessity of amending his plaint. I do not agree with this view of Order 7, Rule 6. It is not the view taken of it in Jogeshwar Roy v. Raj Narain Mitter I.L.R. (1903) 31 C. 195 or by this High Court in Jagannadha Row v. Seshayya (1907) 17 M.L.J. 281 and Marudai Muthirian v. Chinnakannu Muthirian (1918) 52 I.C. 243. Order 7, Rule 6 is a rule of pleading. It makes no exception to the general rule that a plaintiff must plead the facts on which he relies for his case. If a party is advised that his pleadings are defective, the remedy is amendment by leave of the Court. I can see no reason why a different consideration should apply to plaintiff who wishes to throw over the ground of exemption pleaded and to put forward some other ground of exemption which he has not pleaded. In my opinion the plaintiff ought to have applied for leave to amend his plaint, and should not have been allowed to give evidence of the other ground of exemption without such leave having been given. No application for leave to amend was made at the trial, and, as already stated, the previous application was withdrawn by the plaintiff. The suit ought, therefore, to have been dismissed as barred by limitation. This petition is allowed and the decree of the Subordinate Judge will be set aside, with costs here and in the Court below.