TMI Blog2008 (9) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... as the partnership firm and the appellant No. 2, who is defendant No. 4, was a partner of the said firm. In the said suit for dissolution of partnership, the appellants by their written statement disputed the existence of such partnership and had taken a plea that by way of a family arrangement, the defendants/appellants were allowed to carry on the business of setting up South Konkan Distilleries. In their written statement, the appellants also claimed that in view of various letters addressed to various Banks, the said distillery could not be commenced as scheduled in May, 1986 and as a result thereof, the appellants suffered, heavy loss. Accordingly, in the written statement, a counter claim of ₹ 52 lakhs was made against the original plaintiff/respondent. The said written statement was, however, filed on 17thof June, 1987. The counter claim of the appellants was based on a notice of the learned Counsel dated 23rdof October, 1986. In 2000, i.e., after thirteen and a half years, the appellants filed an application for amendment of the written statement and the counter claim seeking enhanced amount. In the application for amendment, the appellants had alleged that as they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the parties, we had taken up the question at issue raised before us. The question is whether an amendment of the written statement and the counter claim could be allowed, which was filed after thirteen and a half years of filing of the written statement and the counter claim, if the claim was already barred by the law of limitation. 6. As noted herein earlier, the High Court as well as the trial Court rejected the application for amendment of the written statement and the counter claim on the ground that as the cause of action had arisen in 1986, the claim of the appellants sought to be amended by filing the application for amendment of the written statement and the counter claim was clearly ex-facie barred by the law of limitation. 7. Having heard the learned Counsel for the parties and considering the nature of amendment and the length of time after which the prayer for amendment was made by the appellants in the written statement and the counter claim, we are of the view that the High Court as well as the trial court had exercised their jurisdiction in a proper manner in rejecting the application for amendment of the written statement and the counter claim. 8. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice. In Ragu Thilak D. John v. S. Rayappan and Ors. 2001 (2) SCC 472, this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself. In a decision in Vishwambhar and Ors. v. Laxminarayan (Dead) through Lrs. and Anr. AIR 2001 SC 2607, this Court held that the amendment though properly made cannot relate hack to the date of filing of the suit, but to the date of filing of the application. Again in Vineet Kumar v. Mangal Sain Wadhera [1984] 2 SCR 333 this Court held that if a prayer for amendment merely adds to facts already on record, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment, the appellants are now completely making out a. new case by alleging' that the appellants were incurring damages on continuous basis, which is contrary to the pleadings made in the written statement and the counter claim which has already been stated hereinabove. 14. An argument was advanced at the instance of the learned Counsel for the appellants that by way of an amendment, the appellants only sought to introduce certain subsequent events after filing of the original written statement. This submission of the learned Counsel for the appellants cannot be supported. The issue of alleged damages cannot be said to be a subsequent event as the appellants are now trying to plead. Even assuming for the sake of arguments that certain losses were being caused but such losses were within the knowledge of the appellants all along even at the time of filing of the original written statement i.e. since 1987. In any case, in the original written statement and the counter claim, there is no averment regarding the continuous nature of losses on daily basis which has been claimed after thirteen and a half years of filing the written statement, when in the original written statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision, it was made clear that the amendment of pleadings introducing new case cannot be allowed, if suit on such case is barred. In that decision also, it was made clear that in the matter of allowing amendment of pleadings, the general rule 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 the new cause of action is barred. However, an exception was given in that decision, saying where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. We have already observed that there is no quarrel on the proposition enunciated by this Court in the aforesaid decision. As held hereinabove, the date on which the application for amendment of the written statement and the counter claim was filed, the claim was already barred by limitation. Therefore, if a fresh suit was filed on the amended claim, there cannot be any dispute that the same could also lie barred by the law of limitation. Under these circumstances an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectified by the amendment applied for. This is not the position in the present case. Admittedly the claim of 1986 was sought to be made by way of the amendment of the written statement and the counter claim in the year 2000, when that claim had already become barred by the law of limitation. Such being the position and in view of the principle laid down, as noted herein above, that if a suit was filed for the amended claim which could have become barred by the law of limitation, the application for amendment was rightly rejected. 19. Keeping the aforesaid findings made by us and also the findings arrived at by the courts below in the matter of exercise of discretion to reject the application for amendment of the written statement and the counter claim, in mind, the delay and latches on the part of the appellants to apply for amendment of the written statement and the counter claim would be the relevant factor for rejecting the application for amendment of the pleadings. As noted herein earlier, there has been thirteen and a half years delay in filing the application for amendment of the pleadings. Further more, in the application for amendment, the appellants had not given any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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