1. This revision petition arises out of a suit to recover from the defendant the waram payable by him to the plaintiff for having cultivated the plaintiff's land. The original plaint relied upon an unstamped written promise to pay amounting to a promissory note, dated the 13th June 1918, and the suit was filed on the 13th June 1921. This District Munsif held that the document was inadmissible in evidence and dismissed the suit. On revision, the High Court allowed the plaintiff to amend the plaint by falling back on the original obligation and remanded the suit. The petitioner then applied for permission to amend his plaint by mentioning an oral agreement on the 13th June 1918, but the Subordinate Judge has rejected the petition for amendment on the ground that there was no separate oral agreement on the 13th June apart from the written note and that if the plaintiff falls back on the original cause of action, the lease, the suit would be barred.
2. I think the plaintiff has brought trouble on himself by applying for amendment not strictly in accordance with the suggestion of Waller, J., who previously disposed of the case. To avoid all further trouble in the case, I think, I should allow the plaintiff to amend the plaint by adding a further sentence somewhat in the following, terms:
even if there was no separate oral agreement on the 13th June 1918, the defendant is liable to pay waram to the plaintiff for having cultivated the plaintiff's lands
3. or on such similar lines as he may be advised. The suit so regarded will not be barred by limitation, if, as is said for the plaintiff the defendant has acknowledged his liability in a partition deed. I think it is safer for the lower Court to go into these matters on the trial of the suit instead of disposing them on the hearings of the petition for amendment and dismissing the suit in the way it has done. After the plaintiff amends the plaint, the defendant will be allowed to file a further written statement in which he will take the question of limitation. The Court will frame separate issues, firstly, whether there was an oral agreement on the 13th June 1918 apart from the written note and secondly, if the plaintiff is to be referred to the original cause of action, whether there is sufficient acknowledgment to save limitation. With these observations, I would send the case back to the lower Court for disposal.
4. The costs of the Court below will abide and follow the result. As the trouble was caused to a certain extent by the negligence of the plaintiff, I direct that so far as the costs in the High Court are concerned, each party do bear his own costs.