1. This Civil Revision Petition is against the order of the lower Court refusing to permit an amendment of the plaint in Rule 8. No. 59 of 1924. The suit as originally framed was based on a security or mortgage-bond, dated 1st July, 1921, executed by defendants Nos. 2, 3 and 4, the mortgage amount being the sum found to be due to the plaintiff by the 1st defendant on that date on running accounts. The plaint allegation was that, as on 1st July, 1921, it was asserted that the 1st defendant was insane and, therefore, could not himself execute the bond, defendants Nos. 2, 3 and 4 executed it, the 3rd defendant doing so as guardian of the 1st defendant.
2. After 1st July, 1921, the running accounts went on, and on the taking of accounts between 1st July, 1921, and 26th September, 1924, the date of plaint, the plaintiff admitted that Rs. 1,016 was due by him and allowed for that set-off in his plaint. The defence, inter alia, was that the 1st defendant was not insane on the date of the mortgage and, therefore, the mortgage is an invalid document and does not bind him. The plaintiff, after putting forward a case that the 1st defendant had ratified the mortgage after recovering his sanity, applied to allow him to amend his plaint by adding an alternative prayer to the effect that if the mortgage is found to be not binding on the 1st defendant he may be allowed to sue on the running accounts, on the footing that there was no settlement on 1st July, 1921, This prayer the lower Court has refused. It seems to me that the lower Court has not rightly exercised its jurisdiction in refusing this prayer. This suit is really to recover an amount due to the plaintiff by the 1st defendant on accounts between them. The plaintiff's original case was that at .one stage this debt due was crystallised into a mortgage-debt. Defendants in effect say it was not. The plaintiff then pleads that if it is found that it was not, he may be allowed to sue on the accounts as if it was not. I cannot see here any radical change in the cause of action. The primary party liable on the accounts has all through been the 1st defendant. I shall come to the case of defendants Nos. 2 to 4 later; but so far as the 1st defendant is concerned, I cannot see how the amendment prejudicially affects him or changes the essential cause of action against him. He cannot plead surprise because it is part of his case that he was unaware of the mortgage and was all along under the belief that the accounts were running on as before and that there was no settlement on 1st July, 1921 (see para. 11 of his written statement). His main objection is that the amendment will open to the plaintiff an opportunity of appropriating against time-barred items prior to 1st July, 1921, sums already appropriated against debts which have arisen after 1st July, 1921, and thus entirely alter the complexion of the accounts as set out in the plaint after 1st July, 1921. No doubt it will have this effect, but the lower Court is quite capable of dealing with such a contingency, and it Will be open to the 1st defendant to plead before it such questions of-limitation and re-appropriation, The 1st defendant cannot plead with the same breath that the plaintiff cannot rely on the mortgage and yet that he must be bound by his system of accounts following from it. The 'plaintiff, no doubt, taken by surprise when the 1st defendant repudiated the insanity, was entitled to put forward the alternative plea; on the contingency that the insanity was not proved, and such a plea must proceed on the footing that there was no settlement on 1st July, 1921, binding on the 1st defendant, because the settlement was not with him although he was mentally sui juris and that, therefore, the running, account has not been interrupted by any such settlement.
3. The lower Court's order refusing this prayer seems to me to be based on a confusion of thought, It regards the amendment as introducing a new cause of action, because there was a settlement on 1st July, 1921, when the old balance of account was discharged by the mortgage. But the whole question is whether or not there was a settlement, and if the Court held on trial that the 1st defendant was not insane, then there was no settlement with the 1st defendant. The plaintiff's case was not that he accepted the transfer of the debt from the shoulders of the 1st defendant to those of defendants Nos. 2 to 4, but that he effected a direct settlement with the 1st defendant through his guardian. If there was no such direct settlement then the accounts with the 1st defendant are open and the case falls to be decided on that footing. Similarly with appropriations after 1st July, 1921, these were on the footing that there had been a direct settlement with the 1st defendant and if there was no such direct settlement the plaintiff is entitled to re-appropriation so far as the law of limitation, will permit. The plaintiff is entitled to whatever 1st defendant owes him on the footing of the items on running accounts which are not barred by limitation. On this footing, of course, the only items after 1st July, 192], to be reckoned in the accounts of the 1st defendant will be those items of personal dealing with the 1st defendant after that date and not any items of dealing with the other defendants.
4. As regards defendants Nos. 2 to 4, the new case requires some scrutiny. They only came on the scene on 1st July, 1921, and their dealings with the plaintiff dale from this. They will not, if the mortgage is found not binding on the 1st defendant, carry over any of the 1st defendant's liabilities either before or after the settlement, aid the claims against them will be each on his own personal obligation, if any, under the mortgage, and on such transactions as he has had personally with the plaintiff since then. The plaintiff's prayer in his proposed amendment in para. 5(a), that they should be held personally liable for the sum found after appropriating payments subsequent to 1st July, 1921, towards earlier debts cannot, therefore, be permitted and the last sentence, namely, 'and from defendants Nos. 2 to 4 according to suit mortgage and security bond' must, therefore, be and is disallowed.
5. Except for this I consider the amendment should be allowed. Order VI, Rule 17 is wide enough to cover this case. The lower Court has erred in its treatment of the matter and it has irregularly exercised its jurisdiction. Such an error is vital to the trial of the suit and must be corrected here and now.
6. I reverse the order of the lower Court and allows the amendment, subject to the restriction noted above. The petitioner will have his costs from 1st defendant here and pay the costs of defendants Nos. 2 to 4 here.