Deonandan Prasad Singh and others vs Piaray Singh and others

Mohammad Noor, J.—This application in revision was heard by me ex parte on 10th April 1935, and by my order of that date I set aside the order of the lower Court. It was through an oversight that the opposite party could not appear at the previous hearing. Later on, they applied for review, and by my order of this day in Civil Review No. 19 of 1935, I granted the review and set aside my previous order and proceeded to re-hear this revision application. Having heard the Government Pleader, who appeared on behalf of the opposite party, I see no reason to change the view I took when I decided the case ex parte.

The application is against an order of a Subordinate Judge of Patna, refusing to allow the plaintiffs, who are petitioners in this Court, to amend their plaint in a mortgage suit. The petitioners claimed to have two mortgages against the defendants. The one mortgage on which the suit has been instituted was executed by defendant 1, Piarey Singh alone. Two properties are mortgaged in it. The second one was executed by Piarey Singh and his son Gauri Shanker Singh alias Rampratap. The two properties which are mortgaged in the first bond are, along with some other properties, mortgaged in the second bond also. As I have said, the plaintiffs have sued on the first mortgage only. They now want to add to the plaint the claim under the second mortgage also. They are apprehensive that perhaps they may not be able to institute a fresh suit on the basis of the second mortgage on account of the provisions of S. 67A, T.P. Act. The Subordinate Judge refused the amendment on the ground that the trial would be prolonged and that there was no foundation for the plaintiffs'' apprehension as S. 67A, T.P. Act, which has been added by the Amending Act of 1929, was not retrospective. On the previous occasion I held that the plaintiffs were within their rights if they were not prepared to take the risk of losing their second suit on account of the applicability of S. 67A if it is applicable. It is not necessary for me on the present occasion to decide whether or not S. 67A is retrospective. I am concerned whether there is any just ground for refusing to allow this amendment and thereby to force the plaintiffs to face the plea of the second suit being barred under S. 67A, T.P. Act.

The Government Pleader has contended that the plaintiffs do not ask for an amendment of the plaint, but for adding a new claim to the suit. In my opinion, "amendment" is a very wide term and includes addition of claims also. It was held in the Calcutta High Court in Upendra Narain Roy v. Janaki Nath Roy, 1910 Cal 904 = 47 I C 129 = 45 Cal 305, that if a plaintiff through his inadvertence omitted to include a portion of the claim in his suit, a claim which if not included in the suit would become barred under O. 2, R. 2, he can amend the plaint and include the omitted claim. It has been held in several cases that a plaintiff cannot be allowed to amend his plaint by including a claim which has become time barred. This clearly indicates that claims which arc not time barred can always be included if otherwise permissible. Whether S. 67A is retrospective or not, the policy of the legislature seems to be that the question between the mortgagor and the mortgagee about all the mortgages held by the latter be tried once for all in one and the same suit. The Government Pleader however contended that the claim under the second bond cannot be included in the present suit. The mortgagors of the two mortgages are different. The first mortgage was executed as I have said by Piarey Singh alone, while the second one was executed by him and his son. The plaintiffs'' case however is that Piarey Singh executed the first mortgage as karta of a joint Hindu family consisting of himself and his son, and the [second mortgage was executed by both father and son. According to the plaintiffs'' allegation therefore the mortgagor in both the cases is the joint Hindu family consisting of Piarey Singh and his son. It is clear therefore that in order to ascertain whether the two mortgagors are one and the same person, an issue of fact, namely, whether the first mortgage on which the suit has been instituted was executed by Piarey Singh in his capacity as karta of the family, will have to be decided. This question cannot obviously be decided in this revision application. I am informed that an issue to this effect is to be tried in the suit which is now pending, and I cannot anticipate the decision on that topic. The simple question before rue is this: whether circumstances have been made out for allowing amendment of the plaint. I think that the plaintiffs should be allowed to amend their plaint. Of course, it will be open to the defendants to raise such plea that the two mortgagors are not one and the same person or persons. No doubt, the trial of the case will be delayed, but I think the addition of the claim will carry out the intention of the legislature in enacting S. 67A, T.P. Act, if in fact the mortgage, which is the subject-matter of the pending suit, was executed by Piarey Singh as member of the joint family.

I therefore set aside the order of the Subordinate Judge and direct him to amend the plaint as asked for by the plaintiffs and then proceed with the suit according to law. The amendment will be allowed subject to the plaintiffs paying in the Court below to defendants 1 and 2 a sum of Rs. 50 as costs. I pass no order for the costs of this application.