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Ramaswami Chetti Vs. Anaiya Padayachi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad545; 165Ind.Cas.737
AppellantRamaswami Chetti
RespondentAnaiya Padayachi and ors.
Cases Referred and Gangadhar Sarkar v. Kaja Abdul Aziz Nawab Salimulla Bahadur
Excerpt:
- - the suit is filed on 9th october 1930. to save the bar of limitation, he relied on a number of payments endorsed on the mortgage-deed, the last of which was on 9th october 1918. defendants 1 to 3 were ex parte and defendant 4 pleaded that the endorsement dated 9th october 1918 was false, that the said mortgage was long ago discharged by the deposit of the amount due in the said o. ' true, there is nothing to preclude the court from allowing an amendment of the kind in question even in second appeal, but except under exceptional circumstances it should not be allowed. 6. in this case both the lower courts have dismissed the suit as being time-barred and the defendant has now acquired a valuable right which by virtue of the amendment would be defeated......sum of rs. 2,707 into court under section 83, t.p. act, in redemption of and full discharge of the suit mortgage.2. the plaintiff contended that more was due to him but a consent memo seems to have been filed in that o. p. on 29th january 1920, ex. d, in and by which it was agreed that without prejudice to the contentions of the parties the plaintiff might draw the amount and the plaintiff accordingly received the said amount. the suit is filed on 9th october 1930. to save the bar of limitation, he relied on a number of payments endorsed on the mortgage-deed, the last of which was on 9th october 1918. defendants 1 to 3 were ex parte and defendant 4 pleaded that the endorsement dated 9th october 1918 was false, that the said mortgage was long ago discharged by the deposit of the amount.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit to enforce a mortgage bond dated 15th September 1900. It was executed by one Karuppa Padayachi, the late undivided father of defendants 1 to 3 in favour of one Devantha Chetty for Rs. 1,000. The plaintiff obtained an assignment for the mortgage on 21st August 1908. The mortgaged properties were sold in Court auction between 9th October 1918 and 31st December 1918, in execution of simple money decrees against the mortgagor and was purchased by one Krishnadesikachariar from whom the plaintiff purchased in 1924. Prior to his purchase defendant 4 was also a puisne mortgagee under two mortgages dated 1904 and 1911. As puisne mortgagee, in O. P. No. 37 of 1919 on the file of the District Munsif's Court of Cuddalore, defendant 4 deposited a sum of Rs. 2,707 into Court under Section 83, T.P. Act, in redemption of and full discharge of the suit mortgage.

2. The plaintiff contended that more was due to him but a consent memo seems to have been filed in that O. P. on 29th January 1920, Ex. D, in and by which it was agreed that without prejudice to the contentions of the parties the plaintiff might draw the amount and the plaintiff accordingly received the said amount. The suit is filed on 9th October 1930. To save the bar of limitation, he relied on a number of payments endorsed on the mortgage-deed, the last of which was on 9th October 1918. Defendants 1 to 3 were ex parte and defendant 4 pleaded that the endorsement dated 9th October 1918 was false, that the said mortgage was long ago discharged by the deposit of the amount due in the said O. P. No. 37 of 1919 and the suit was not maintainable. The learned District Munsif found the endorsement not genuine. He also found that nothing was due under the document as according to him the amount that was deposited in Court went in full discharge of the mortgage. He came to this conclusion on a construction of the document. It may be stated that the plaintiff's case is that upon a proper construction of the document interest at a particular rate should be allowed and if that was done, a considerable sum of money would be due to him and that was the amount which he claimed in the suit. It is this contention which the learned District Munsif negatived.

3. On appeal the learned Subordinate Judge concurred in the opinion of the District Munsif that the endorsement was a forgery and the alleged payment was false, but he was of opinion that the amount deposited into Court should not be taken to be in full discharge as according to his construction of the document more would be due, but however in the view he took of the endorsement he dismissed the appeal. In view of the findings of the fact that the endorsement of 9th October 1918 was not true, the suit is barred and the second appeal ought to be dismissed. But Mr. Panchapagesa Sastri contends that the suit is not barred by reason of an acknowledgment of liability by the mortgagor in Ex. C, dated 31st December 1918, executed by the mortgagor in favour of the plaintiff. That document purports to be executed in discharge of the suit mortgage for the principal amount due thereunder, the reason, for such execution being that the plaintiff had obtained an assignment of the original suit mortgage bond. It was admittedly after the Court sale of the suit properties. In the plaint, it may be stated the plaintiff did mention Ex. C, but he alleged that so far as defendant 4 was concerned he was not acting on it. It may also be pointed out that this ground of exemption now relied on has neither been stated in the plaint nor put forward in either of the two Courts but is now taken for the first time in second appeal.

4. Mr. Panchapagesa Sastri contends that he is entitled to rely on it, and at any rate, leave to amend the plaint may now be given to him. His argument is as some ground of exemption was stated in the plaint, if the plaintiff is not able to support on that ground, he can rely upon any other ground which is disclosed in the evidence, and for this position he relies on the ruling in Amir Begum v. Hussain Bibi 1922 2 Lah 5 and the decision of Mookerjee, J., in Nistarini Debi v. Chandi Dasi Debi (1910) 12 CLJ 423. But this view has not been accepted by Cornish and Walsh, JJ., in our High Court. They are of opinion that unless the plaint is amended it would not be open to a party to rely on an exemption not pleaded in the plaint : vide Palani Chetti v. Sevugan Chetty 1933 64 MLJ 317 and Mahadeva Sastrigal v. Marulai Reddiar 1933 MWN 931. Order 7, Rule 6 is in these terms:

Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.

5. Thus it will be seen that it is obligatory as a matter of pleading to show the ground upon which exemption from limitation is claimed. Else it would not be open to him to rely upon such ground. I think the view taken in our High Court is the sounder view. The question then is: Should the amendment be permitted Mr. Panchapagesa Sastri says it is open to a Court to allow amendment even in second appeal and under Order 6, Rule 17 ' all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.' He strongly relies on two rulings of the Calcutta High Court, namely Nistarini Debi v. Chandi Dasi Debi (1910) 12 CLJ 423 and Gangadhar Sarkar v. Kaja Abdul Aziz Nawab Salimulla Bahadur (1910) 14 CWN 128. In the former case Mookerjee, J., was of opinion that an amendment should ordinarily be allowed unless by the amendment sought the defendant would be prejudiced and at the same time observed : 'The time and extent of each amendment are in the judicial discretion of the Court.' True, there is nothing to preclude the Court from allowing an amendment of the kind in question even in second appeal, but except under exceptional circumstances it should not be allowed. In exercising discretion whether such an amendment should be allowed or not, the first principle to be observed is that an amendment is not permissible when it would prejudice the right of the opposite party existing on the date of such amendment. It is not a question whether the defendant would be taken by surprise by such an amendment or not, but whether by allowing such amendment prejudice and injustice would be caused to him. The second principle to be observed is whether the conduct of the party seeking the amendment has been bona fide and he has come to Court with clean hands, and whether by the exercise of due diligence the relief for amendment could have been sought earlier.

6. In this case both the lower Courts have dismissed the suit as being time-barred and the defendant has now acquired a valuable right which by virtue of the amendment would be defeated. Further the plaintiff relied upon an endorsement which has been found by both the lower Courts to be untrue. Defendant 4 took the plea in the written statement that the endorsement, dated 19th October 1918, was a false one. Yet the plaintiff did not choose to rely on the acknowledgment of liability under Ex. C. In spite of the fact that the learned District Munsif held that the endorsement was not genuine and the suit was time-barred, the plaintiff never chose to urge this ground of exemption even in the lower appellate Court, though a ground was taken in the memorandum of appeal.

7. Further the amount which was alleged to be due under this mortgage was deposited so early as 1920 and in respect of a mortgage for Rs. 1,000 the plaintiff was paid nearly a sum of Rs. 3,000. The contention of defendant 4 at the time of the deposit was that nothing more was due under the mortgage whereas the contention of the plaintiff was that something more was due and he allowed 10 years to elapse, and his conduct is such as to make any reasonable man believe that there was nothing more due under the document In fact it may be that relying on the conduct of plaintiff, defendant 4 purchased the property in 1924, four years after the deposit. In 1927 defendant 4 called upon the plaintiff to return the mortgage document duly cancelled by a registered notice sent through a lawyer. But the plaintiff never chose to send any reply stating that anything was due under the mortgage. But on the last day of limitation he has chosen to file this suit and persisted in relying upon a false endorsement to save the bar of limitation Thus, having regard to all the circumstances in this case, I do not think this will be a proper case in which I should exercise my discretion by: allowing the amendment at this late stage in second appeal. I however make no order as to costs in this Court. Leave refused


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