@JUDGMENTTAG-ORDER
S.M.N. Raina, J.@mdashThis is an application by the appellant for amendment of the plaint. The material facts for purposes of this appeal are as follows. Respondents Anoopchand, Meharchand and their deceased brother Santoshchand had executed a mortgage in respect of their house in favour of one Payarelal and his son Amarlal (respondent No, 4) for a consideration of Rs. 8.500 on 11-8-1943 by a registered deed of mortage (Ex P. 2). One of the terms of the mortgage was that the mortgage money shall be payable after five years from '' the date of the mortgage. Again on 14-8-1943 the aforesaid three mortgagors executed a second mortgage deed in favour of Pyarelal and Amarlal in respect of the said house for a consideration of Rs. 2,500 by a registered deed of mortgage (Ex. P. 3). The terms and conditions of the second mortgage were the same as that of the earlier mortgage. Mortgagor Santoshchand is dead and is represented by his son Vijaychand (respondent No. 3). Mortgagee Pyarelal also is dead and is represented by his three sons Amarlal, Jagdishprasad and Kishanlal (respondents 4 to 6). Respondents 4 to 6 transferred their rights under the mortgage deeds dated 11-8-1943 and 14-8-1943 to the plaintiff appellant Radhakrishna for a consideration of Rs. 11,000 by a registered sale-deed dated 11-8-1960 (Ex. P-1). As the mortgagors did not make any payment towards the mortgage, the appellant filed a suit on 13-8-1960 to enforce the said mortgages against respondents 1 to 3. The original mortgagees, that is, respondents 4 to 6 were also joined as parties to the suit. The suit was contested by the mortgagors (respondents 1 to 3) inter alia on the ground of limitation. The trial Court held in favour of the plaintiff-appellant on other points, but dismissed the suit on the ground that it was barred by limitation. Being aggrieved thereby the plaintiff-appellant has filed this appeal.
2. In the trial Court the contention of the appellant was that the suit was within limitation as the second mortgage deed dated 14-8-1963 contained an acknowledgment of their liability by the mortgagors under the earlier mortgage and as such limitation was to be computed from the date of expiry of the period of five years commencing from the date of the second was accepted by the trial Court. In the memo of appeal so far as the question of limitation was concerned it was urged that the View taken by the trial Court was not correct. But on 17-9-1970 the appellant filed an application under Order 14 rule 2 C. P. C. for urging an additional ground of appeal to the effect that Ex. D-2 dated 7-7-1950 which is a registered deed of partition contains an acknowledgment of liability within the meaning of section 19 of the Limitation Act and the suit is within limitation because limitation should be computed from the date of this document. Subsequently on 18-9-70 the appellant filed an application for amendment of the plaint so as to claim extension of limitation on the basis of the aforesaid acknowledgment; in Ex. D-2. This application has been vigorously opposed by the Learned Counsel for the respondent and the question for consideration is whether it should be allowed.
3. It is almost settled that an amendment can be allowed at any stage of the suit and even in a second appeal, provided that it does not alter the nature of the case and cause an injury to the other side which cannot be adequately compensated in costs, for example where a fresh suit on the amended claim would be barred by limitation on the date of the application vide
The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.
Their Lordships further observed that the expression "cause of action" in this context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed. It merely means a new claim made on a new basis constituted by new facts (vide para 9).
4. Applying the aforesaid test, it would be clear that by this amendment plaintiff is not introducing a new cause of action or a new case. His claim is not based on the acknowledgment in Ex. D-2. His claim is based on the two mortgage deeds. He merely wants to show that his claim is within limitation because of an acknowledgment by the mortgagors of their liability under the the mortgage deeds in Ex. D-2. Thus all he wants to introduce is a new fact to entitle him to succeed oh the claim as originally laid.
5. Plaintiff is merely seeking extension of time on the basis of an acknowledgment in Ex. D-2. This document purports to be a deed of partition and was filed by the respondent. Anoopchand in the trial Court in support of his plea that he was no longer responsible for the amount due on the mortgages as in a family partition the mortgagors, debt had been assigned to the other mortgagors. This document was on record of the trial Court and it seems that it did hot occur to the appellant earlier that he could claim an extension of limitation on the basis of the acknowledgment contained in this document. The respondents have, however, no room to complain that they are taken by surprise because the document was filed by one of them. There can be no doubt that plaintiff should have sought an amendment of the plaint at the earliest opportunity after the document was filed, but if would not be proper to disallow the amendment on the ground of delay alone, particularly because it does not appear to be mala fide.
6. We may here refer to the recent decision of the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon Civil Appeal No. 697 of 1966 decided on 17.3.1966 wherein their Lordships observed as under :--
However negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
As pointed out above there would be no injustice to the other side by allowing the amendment in question which appears to be necessary in the interest of justice. But the respondents are entitled to substantial costs as the amendment has been sought at a late stage.
7. The application for amendment is, therefore, allowed subject to payment of Rs. 200 as costs to respondents 1 to 3. We do not consider it proper to award any costs to respondents 4 to 6 as they are more or less proforma defendants.
