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P.L.S.P.L. Palaniappa Chettiar Vs. Y.P.R.Y.N.Y. Chidambaram Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad53; (1937)2MLJ737
AppellantP.L.S.P.L. Palaniappa Chettiar
RespondentY.P.R.Y.N.Y. Chidambaram Chettiar and ors.
Cases ReferredMa Shwe Mya v. Maung Mo Hnaung
Excerpt:
- - 6. but the limitations of this rule have been on account of a series of authorities also well defined. c): all rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full power of amendment must be enjoyed, and should always be liberally exercised......these were not mentioned either specifically or generally and were proposed to be brought, as the acts committed before the 3rd of april could not, according to the full bench decision, form a basis or ground for adjudicating respondents on the petition presented to the court on 3rd july, 1934. it might be stated in passing that the full bench decision gave effect to the rulings in ex parte games: in re bamford (1879) 12 ch. d. 314 and in re maund: ex parte maund (1895) 1 q.b. 194.5. i have tried to show that this was not as stated by the district judge in his judgment dated 3rd october, 1936, merely a case of specifying the acts in detail which had already been alleged. the application for amendment was put in with the object of saving it from being dismissed by pleading further acts.....
Judgment:

Abdur Rahman, J.

1. The petitioner seeks in this case to revise the orders passed by the District Judge of Ramnad at Madura on 3rd October, 1936, confirming those of Additional Sub-Judge of Devakottai who had permitted respondent No. 1 to amend his petition which he had presented to the Court on 3rd July, 1934, praying that the petitioner and other respondents to these proceedings be adjudged as insolvents.

2. The petition has been very ably argued on behalf of the parties, and 1 have been called upon to satisfy myself whether the orders passed by both these Courts were according to law. Respondent No. 1 had in his petition for the adjudication of the petition and the remaining respondents, relied on certain acts of insolvency which were stated by him in para. 6 of his petition. I have examined para. 6 of the petition generally and para. 6(c) of the petition particularly, and am of the opinion that the transfers referred to in that clause were only those which were alleged to have been effected by the respondents to the petition during the three months prior to the closing of the Court for summer recess on 1st May, 1934, and did not cover the acts which might have been committed by them subsequently, that is, within the three months before the actual presentation of the petition.

3. There is no doubt that the petition for amendment was presented on account of a Full Bench decision of this Court in Chenchuramana Reddi v. Arunachalam : (1935)69MLJ283 in which while overruling NarayanaAiyar v. Official Receiver, Calicut (1933) 39 L.W. 449 it was held that the period of three months fixed in Section 9(1) (c) of the Provincial Insolvency Act is not a period of limitation but is a condition precedent during which the alleged acts of insolvency must have been committed by the person or persons who is, or are, proposed to be adjudicated. It was accordingly held that the period of vacation would be of no avail to the petitioner in increasing the period within which the alleged acts of insolvency must be proved to have been committed by the respondents, and the provisions of the Limitation Act would not be able to help the petitioner in extending that period on account of the fact that the period of three months expired at a time when the Civil Courts were closed for long vacation.

4. As the petition for insolvency was in this case presented on 3rd July, 1934, and the alleged acts of insolvency were stated to have been committed on 20th February, 1934 and 23rd February, 1934, an application for amendment was considered to be necessary. This was made on his behalf on 23rd July, 1935, with the object of including other acts of insolvency committed by the respondents in April, May and July, 1934. These were not mentioned either specifically or generally and were proposed to be brought, as the acts committed before the 3rd of April could not, according to the Full Bench decision, form a basis or ground for adjudicating respondents on the petition presented to the Court on 3rd July, 1934. It might be stated in passing that the Full Bench decision gave effect to the rulings in Ex parte Games: In re Bamford (1879) 12 Ch. D. 314 and In re Maund: Ex parte Maund (1895) 1 Q.B. 194.

5. I have tried to show that this was not as stated by the District Judge in his judgment dated 3rd October, 1936, merely a case of specifying the acts in detail which had already been alleged. The application for amendment was put in with the object of saving it from being dismissed by pleading further acts of insolvency which according to the Full Bench authority were no longer so and had ceased to be impeachable under the Insolvency Act. It must be stated at the outset that under the provisions of the Insolvency Act the provisions relating to amendment of pleadings contained in the Code of Civil Procedure, would be applicable to the petitions made under the Act. I am also fully aware of the established rules and practice of the Courts, both in England and in India, which act with considerable liberality in the matter of granting amendments and ' which should be allowed ' as remarked by Lopes, L.J., in Weldon v. Neal (1887) 19 Q.B.D. 394 :

However negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side.

6. But the limitations of this rule have been on account of a series of authorities also well defined. As pointed out by Lord Buckmaster in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 I.A. 214: I.L.R. 48 Cal. 832 at 835 (P.C):

All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full power of amendment must be enjoyed, and should always be liberally exercised.

7. The noble lord, however, adds the following qualification which should not be lost sight of:

Nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another.

8. If I found that respondent No. 1 was in this case relying on the same cause of action which he had pleaded in the petition or that he was merely asking for further relief or an appropriate remedy which he had on account of some slip or mistake forgotten to ask in his petition, it would not have been necessary for me to examine the orders passed by the lower Courts minutely and revise them if necessary. But when I find that by this devise respondent No. 1 wishes the Courts to help him in alleging new acts of insolvency which according to the Full Bench authority had become unimpeachable and ceased to be acts of insolvency in fact under Section 9 of the Act and on which he neither relied nor did he intend to rely when presenting his petition, the matter assumes a different complexion. If the amendment were allowed to remain, the petitioning creditor would be enabled to substitute new grounds for those which he had set up originally but which are of no avail to him now. This is bound to cause serious injury and grave injustice to the other party which cannot be compensated by costs. It is true that the Courts have wide powers in this matter but they have to be exercised judicially and with care. The effect of granting this amendment would be to clothe the petitioning creditor with rights which he would not have had, if a new petition for insolvency was presented by him on the date on which he applied for leave to amend.

9. In these circumstances I hold that an amendment of this nature prayed could not be granted. The amendment is there fore cancelled and the petition allowed with, costs throughout.


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