1. Plaintiff is the petitioner. He filed a suit for recovery of money. In the plaint he stated that on 1-4-1966 the defendant borrowed from him Rs. 2000. The defendant gave a chit stating that he had received Rs. 2000. In the evening it is alleged by the plaintiff that a promissory note was executed by the defendant for Rs. 2000. On 27-3-1969 the plaintiff went to the house of the defendant and asked for the money or for an endorsement on the promissory note. It is stated that the defendant's son took the promissory note and tore it to pieces. In the plaint the relief that was sought for was for recovery of Rs. 2000 which had been received by the defendant on execution of the chit. In the column relating to the cause of action it is stated that the cause of action arose on the date when the defendant executed the chit for Rs. 2000 and in the evening when the executed a promissory note. In the amendment plaint the plaintiff sought to introduce a relief based on the promissory note which the defendant's son tore on 27-3-1969.
2. It may be seen that in the originally plaint itself all the facts have been stated to enable the plaintiff to seek his relief on the promissory note. In fact it was stated that the cause of action arose on the day when the promissory note was executed on 1-4-1966. The amendment sought for is based entirely on the facts set out in the plaint and there can be no objection for allowing such amendment.
3. The learned counsel for the respondent submitted that a suit based on the promissory note would have been time barred on the day when the amendment petition was filed on 21-6-1971. If the suit had been filed for the first time on 21-6-1971, based on the promissory note it would have been time barred. But as already stated, all the relevant facts for claiming the relief had been stated in the original plaint itself and the mere fact that this particular relief would have been time barred is no ground for refusing the amendment. The learned counsel for the respondent relied on a decision of a single Judge of this Court in Chinnasami v. Kandaswami : AIR1970Mad81 , wherein the learned Judge observed that, 'the question is one of limitation and not one of sympathy or expediency. If excusing the delay is permissible, that is another matter. In the absence of an enabling provision, I do not see how, on the date the application for amendment was made the suit would have been barred by limitation, there is any escape but that the application has got to be dismissed on the ground of limitation. The learned Judge relied on the decision in Madina Bibi v. Ismail Durga Association AIR 1940 Mad 789, wherein, in the appeal before the High Court the learned counsel prayed that he be allowed to amend the plaint and turn the suit into a representative one. The Bench observed that if the failure to sue in a representative capacity was the result of oversight, the Court might have been disposed in these circumstances to allow the amendment, but that is not the case. The appellant in her written statement raised this very question and an issue was framed regarding whether the suit should be in a representative capacity or not. Having gone to the trial on this issue, the Court held, it was too late in the day for the Association to ask for leave to amend in the appeal. The Bench decision does not support the view of the learned single Judge that when on the day of the application for amendment the suit has become barred by limitation there is no escape except to dismiss the petition for the Bench observed that they might have allowed the amendment but for the circumstances stated.
4. The Privy Council as well as the Supreme Court have taken the view that even though a relief could have become time barred on the date when the amendment is sought for, the pleadings could be amended. The Privy Council in Charandas v. Amir Khan, 47 Ind App 255 AIR 1921 PC 50 observed-
'Though the power of a Court to amend the plaint 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, yet there are cases where such considerations are outweighed by the special circumstances of a case.'
The Supreme Court held in Leach and Co. Ltd. v. M/s. Jardine Skinner and Co. : 1SCR438 that though 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 is a factor to be taken into account in exercise of the discretion as to whether the amendment should be ordered and does not affect the power of the Court to order it, if that is required in the interests of justice. The same view was reiterated by the Supreme Court in Pirgonda Hongonda v. Kalgonda Shidgonda : 1SCR595 .
5. On the face of the decisions of the Privy Council and the Supreme Court the plea of the learned counsel for the respondent based on a decision of a single Judge of this Court in : AIR1970Mad81 , cannot be upheld. In the result, the petition is allowed and the plaintiff will be permitted to carry out the amendment sought for in the plaint. The defendant will be at liberty to file additional written statement. No order as to costs.
6. Petition allowed.