Gatiganti Subbarayudu and Others vs Arumilli Surayya

Oldfield, J.—The plaintiff sued, alleging in his plaint that he had been obstructed by defendants in taking possession of property purchased

by him in a Court sale held under a mortgage-decree, which he and others had obtained against the 6th and 7th defendants. He asked for

possession and removal of the obstruction. The plaint averred that the sale by the 6th and 7th defendants to the 1st defendant and the re-sale by

the 1st defendant could not affect the plaintiff. Issues were framed in 1911, and ever two years later, though before trial, the plaintiff, apparently

with reference to the decision in Kutti Chettiar v. Subramania Chettiar 4 Ind. Cas. 1077 which had been published in 1909, applied for leave to

amend by substituting an averment that the sales to and by the 1st defendant were valid and a prayer for a direction to 1st to 5th defendants to

redeem and for possession in case they failed to do so. The District Munsif refused leave to amend, apparently treated the original attack on the

1st defendant''s title as abandoned and dismissed the suit. The lower Appellate Court held that the amendment should have been allowed, and

remanded the suit for re-trial on that basis.

The amendment was allowed first on the ground that it consisted only in the insertion of a prayer for an appropriate instead of an inappropriate

remedy. That was not the case, since, as pointed out above, it also involved the substitution of an affirmation of the validity of the 1st defendant''s

purchase for a denial of it, the foundation of (he claim being thus entirely changed. Next the lower Appellate Court thought it immaterial that the

new claim proposed by the amendment would have been barred at its dale, because it would not have been barred when the plaint was filed : and

it has, no doubt, been recognised in a number of cases from Mohummud Zahoor Ali Khan v. Musammat Thakooranee Rutta Koer 11 M. I.A.

onwards that in such circumstances leave to amend should not necessarily be refused on the ground of limitation. But it does j not follow, and

it is not the law, that delay in asking for leave to amend and the : resulting argument from limitation are to be disregarded, when the Court is called

1 on to exercise its discretion in the matter, j Vide the observations in Mulla Veettil Seethi Kuiti v. Korambath Paruthooli Achutan Nair 10 Ind.

Cas. 218. Bach case must be dealt with on its merits : and it is possible that the extreme limit of indulgence was reached in Sevugan Chetty v.

Krishna Aiyangar 13 Ind. Cas. 268. on which the plaintiff has relied But, although the facts there are obscure, they appear to differ from those in

question before us, since they included no change in the plaint averments, but only an addition to the claim made. Here there is no such recent

decision as to the law and pardonable mistake regarding it as was in question in Mulla Veettil Seethi Kutti v. Korambath Paruthooli Achutan Nair

21 M. L.J. 475. and Narayanaswami Aiyar v. Krishnamurti Aiyar (1915) M. W. N. 122. and Viswanathier v. Aiyavier 26 Ind. Cas. 383. On the

contrary, there was great delay in asking for the amendment and no suggestion of any special reason for granting indulgence, The lower Appellate

Court''s order allowing amendment is, therefore, unsustainable and is set aside.

The District Munsif apparently did not deal with the merits of the plaintiff''s original case or try the issues framed. It does not appear that that

case was ever abandoned. The suit must, therefore, be remanded to the District Munsif for restoration to file and disposal on its merits on those

issues. The plaintiff will pay the defendants'' costs in the lower Appellate Court and here. Costs to date before the District Munsif will follow the

result and be provided for in the decree to be passed.

Krishnan, J.

I agree.