1. This appeal raises an interesting point relating to the amendment of pleadings. The appellant is defendant 6 who is the grandson of the man with whom the plaintiffs had business dealings. Defendant 6 is taking up the position as to the correctness of which we say nothing that he is not liable if the suit transactions are post-partition and that he may be liable if the suit transactions are pre-partition. The suit, as it was originally framed, was founded upon Ex. P-1 which is dated 7th March 1929 and takes the form of an acknowledgment of liability. In point of fact, defendant 6 has been urging (and it is so found in the judgment of the trial Court) that before that date there was a partition so that the transaction of 7th March 1929 is post, partition. That position obviously had been adverted to or at least adumbrated in argument, and accordingly we find that in this case after all the witnesses had been in the box and all the documents had been put in and the matter stood reserved for argument, on 25th February 1933 an application was put in to permit the plaintiffs to amend their plaint by adding allegations which in point of fact founded their claim not upon the agreement or the receipt of 7th March 1929 but upon an agreement dated 9th October 1927, Ex. P. 7, which is in the following words:
I have executed a receipt for Rs. 6700. This day, on 9th October 1927 that is, on making account of Rs. 5133 due on receipt dated 17th October 1927, Rs. 6618-10-0 including interest thereon, are found due (by me) and took Rs. 51-6-0 in wash this day, total Rs. 6700. I have therefore executed a receipt therefor. I will pay interest thereon at the rata of ten anna's per cent, per mensem and will satisfy the same within two years.
2. It is now necessary to mention some dates in relation to limitation.
3. It will be seen that Ex. P-7 founds a cause of action on 9th October 1929, that is, two years from 9th October 1927 which was the starting point for the liability to repay that amount, and accordingly that cause of action would be time-jarred on 9th October 1932. On the other hand the, first agreement is time barred on 7th March 1932. The suit was brought on 7th March 1932 that is the last flay of limitation. The application to amend, as already stated, was dated 25th February 1933. The amendment was allowed on 17th March 1933, and the pleadings were amended on 3rd April 1933. Nobody doubts but that, the critical date for limitation, purposes is other the date of the plaint that is amended or the date of the application to amend. It has been urged before us that beaming in mind the fact that this is a second appeal and the terms of Section 100 of the CPC, this being a discretionary matter, it should not, be interfered with. We are however of the opinion that the learned Judge who allowed the amendment proceeded on a wrong view of the law so that he could not have applied his mind to the question whether he should or should not in his discretion allow this amendment because he quite clearly was much impressed by the view that whether you looked at the original cause of action or whether you looked at the new cause of action, both were in time and they were both within time because, in his view, when you are considering amending you should regard the new cause of action as in time if it was in time when the original suit was brought. In our opinion that is not so. The leading case on this subject is (1887) 19 QBD 394,1 which has been followed in India in a very considerable number of cases referred to in Sir Dinshaw Mulla's Code of Civil Procedure (Edn. 10) p. 547 from which it is clear that as an ordinary case an amendment should not be allowed where to allow it would be to bring on the record a new case which, at the date of the application to amend, was time-barred. As Lord Esher, M.R, observed in that case:
We must act on the settled role of practice; which is that amendments are not adrbissible when they prejudice the rights of the opposite party as existing at the date of such amendments. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.
4. Here it has been urged that this is one of those exceptional cases and 11 MIA 4682 has been particularly relied on together with another Privy Council decision reported in 48 Cal 1103 and by way of additional weight the following decisions of High Courts in India have also been referred to on this point by the respondent: 33 Bom 644,4 33 All 616,5 36 Mad 378,6 50 Cal 8787 at p. 891, AIR 1929 Bom 518 and AIR 1931 Bom 218,9 If 48 Cal 110 is referred to, it will be seen that, it is a case where it was clear that what was being litigated was the plaintiff's right to pre-emption and what the plaintiff was seeking was pre-emption. What he actually claimed was a declaration that he had a right to pre-empt and the amendment was one that followed on the declaration and was ancillary thereto. To have refused amendment in such a case would have been to make idle litigation the purpose of which was apparent to every one. As their Lordships observed at p. 116 “their cause of action was one and the same whether they sued for possession or not.” In 11 MIA 468, their Lordships allowed an amendment which at first sight looks as though they were permitting an entirely fresh cause of action to be litigated at a very late stage. If however that case is carefully regarded, specially their Lordships' observations at pp. 473 and 474, it will be seen that it was another case where their Lordships were patting right a mere blunder and that all the facts were already present and the litigants perfectly well knew what the subject-matter in contest was. They observe at p. 473 as follows:
Though this Committee is always disposed to give a liberal construction to pleadings in the Indian Courts, so as to allow every question fairly arising on the case made by the pleadings to be raised and discussed in the suit, yet this liberty of construction must have some limit. A plaintiff cannot be entitled to relief upon facts or documents not stated or referred to by him in his pleadings.
5. The cases, in which amendments out of time have been allowed, have all been exceptional cases of little slips which created a difficulty in the plaintiff's way and could be removed by an amendment that would not cause the other side in any way to be taken by surprise. To show how far this case is outside11 MIA 468 it is only necessary to look at p. 3 of the paper book, para. 7 of the plaint in which the plaintiffs say after reciting the various documents which they filed with the plaint:
there is no other paper either in the possession of the plaintiffs or other persons to be produced in evidence of the claim.
6. That means that the plaintiffs were taking up the position that this document (Ex. P-7), which is the document on which they are now relying, was irrelevant to the claim which was originally pleaded. Never, the less it has been urged by counsel for the respondents that in truth and in fact the amendment made no important difference; all the way through the plaintiffs were suing on an account; all the way through it was well known to the other side what account was all the way through they had before them the account books and this is merely an amendment that is necessary to get over a technical defect. We are unable to take that point of view. This amendment is not only out of time but is made at a very late stage after the case was over — apart from argument—and therefore falls within the decision in 36 Cal 780.10 It is also, in our opinion, an amendment that introduces a new case, a new cause of action, a new contract, a contract made at a different time having a different period of limitation and having different legal consequences and therefore falls within 48 Cal 832,11 another Privy Council decision.
7. Amendments should always be made, in our opinion, with great readiness. In most cases up to issue stage no special burden as to costs is called for and thereafter justice is met by leave being granted conditionally on the payment of costs thrown away. But where one sees an amendment asked for at so late a stage, which introduces a new cause of action one should ask oneself: Where would the applicant be if he were to bring a fresh suit at the time he seeks this amendment? If you find that he is out of time and he has not got the power to bring that fresh suit without finding himself opposed by the defence of limitation, very exceptional circumstances have to be present to justify a Court letting him do in one litigation when he cannot do it in another. This case, in our opinion, possesses all the features which entitle a Court to refuse an amendment, including the feature that a Court should not be astute to impose on grandsons liability for their grandfather's debts. The amendment being swept away, the case is senst back to the trial Court for a new judgment on the evidence as it stood when evidence was closed, adding to the issues already drafted issues raising the question whether defendant 6 is bound by the oral agreement pleaded in para. 1 of the plaint before amendment and further whether defendant 6—bearing in mind the fact that is an agreement come to after the partition alleged — is bound by such oral agreement should it appear that the partition alleged is found for. All the costs incurred after the application to amend up to and including the costs of this appeal defendant 6 is entitled to receive in any event, that is to say, whether his defence succeeds or not. The costs in the trial Court hitherto or hereafter incurred will be costs in the cause.
B.D/R.K
8. Order accordingly.