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Alapati Ramaswami Vs. Dasari Venkataranayana - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.330
AppellantAlapati Ramaswami
RespondentDasari Venkataranayana
Cases ReferredBalkaran Upadhya v. Gaya Din Kalwar
Excerpt:
.....borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the..........defendant made himself liable to pay the market value of the paddy in ponnur market on the 30th phalguna bahula of the same year. there is also a provision in the bond to the effect that in case the first instalment was not fully paid, the last instalment also became due and that in case the second instalment was not paid the seventh instalment also became due; and so on. for the first instalment a small quantity of paddy had been delivered; and on 20th november 1918 the plaintiff instituted a suit for the recovery of the amount due with respect to the first and eighth instalments. the plaint in this suit was returned for presentation to the proper court on 24th february 1919, and it was presented in the district munsif's court of baptla on 26th february 1919. the present suit out of.....
Judgment:

Viswanatha Sastry, J.

1. Second appeal by plaintiff against the decree of the District Judge of Guntur in A.S. No 332 of 1920.

2. The question to be considered in this appeal is one of limitation, and the facts are as follows:--The defendant executed a hypothecation bond Ex. A on 10th October 1917. Under this bond a sum of Rs. 2,000, was due to the plaintiff and the defendant undertook to deliver 7 candies of paddy every year for a period of eight-years. The paddy was deliverable on Pushya Bahula 30th of every year, and in case default was made in the delivery of the paddy, the defendant made himself liable to pay the market value of the paddy in Ponnur market on the 30th Phalguna Bahula of the same year. There is also a provision in the bond to the effect that in case the first instalment was not fully paid, the last instalment also became due and that in case the second instalment was not paid the seventh instalment also became due; and so on. For the first instalment a small quantity of paddy had been delivered; and on 20th November 1918 the plaintiff instituted a suit for the recovery of the amount due with respect to the first and eighth instalments. The plaint in this suit was returned for presentation to the proper Court on 24th February 1919, and it was presented in the District Munsif's Court of Baptla on 26th February 1919. The present suit out of which this second appeal arises was in respect of the second and seventh instalments. One of the Contentions urged was that the suit was barred under Order II, Rule 2 of the C.P.C. Both the Courts below upheld this contention and dismissed the suit.

3. It is contended before me that the cause of action in the present suit which was in stituted on 31st August 1920 did not arise on the date when the plaint for the first and eighth instalments was filed and that, even if it did arise the date of the cause of action was not 30th January 1919 as stated in the plaint, but 30th of Phalguna-Bahula which would be about March 1919. For considering when the cause of action really arose, reference has to be made to Ex A. This document recites that the paddy was deliverable on Pushya Bahula 30th of every year, and that in case there was failure to deliver the paddy, defendant was to pay the value of 14 candies at the rate prevailing in the Ponnur market on Phalguna Bahula 30th. Before the parties went to trial, the plaintiff put in a petition to amend the plaint by stating that the cause of action arose on Phalguna Bahula 30th and this application was refused by both the Courts below on the ground that a change in the cause of action would prevent the suit being barred and thus deprive the defendant of his right to have the suit dismissed. Both the lower Courts were of opinion that the amendment would make a change in the cause of action, but this does not appear to me to be so. The change would be only in the date when the cause of action arose and not in the cause of action itself which would remain the same. The document distinctly provides that the value of the paddy as and on Phalguna Bahula 30th was to become payable in case the paddy was not delivered. For the purpose of instituting the suit the plaintiff would, therefore, have to wait till Phalguna Bahula 30th for the purpose of ascertaining the price on that date. It is only after ascertaining the price that he could have valued his suit and come in with his plaint. The cause of action remains as it was, namely, the failure to deliver paddy, but the only variation which the plaintiff wanted to make was as to when the cause of action arose. Therefore such an amendment could be allowed as laid down by this Court in Sevugan Chetty v. Krishna Aiyangar 22 M.L.J. 139. The Vakil for the respondent relied upon a case in Balkaran Upadhya v. Gaya Din Kalwar 24 Ind Cas 255 but all that this case lays down is that no amendment should be allowed when there is a change in the cause of action and not when there is a change in the date when the cause of action arose. The grounds on which the lower Courts declined to allow the amendment seem to me to be untenable; and the amendment, in my opinion, ought to have been allowed. In this view the suit would not be barred by limitation.

4. Other pleas were also raised which form the subject-matter of Issues Nos. 2 and 3. No evidence was let in and no finding given on these issues by the Trial Court.

5. The appeal is, therefore, allowed, and the suit is remanded to the Trial Court for disposal after receiving evidence on the remaining issues.

6. Costs in this Court will be paid by the respondents. Costs in the lower Courts will abide and follow the result.

7. The appellant will get refund of the Court-fee paid on the memorandum of second appeal, and in the memorandum of appeal to the lower Appellate Court.


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