TMI Blog1974 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... im based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the court found that consideration of lapse of time is out weighed by the special circumstances of the case. The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim. - Civil Appeal No. 1991 of 1971 - - - Dated:- 24-7-1974 - RAY, A.N. AND MATHEW, KUTTYIL KURIEN, JJ. For the Appellant : V.M. Tarkunde and Rameshwar Nath For the Respondent : K.S. Ramamurthy and B.R. Agarwal. JUDGMENT RAY, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed the appeal and set aside the order dated 6 July, 1970 allowing the amendment. The appellant repeated the contentions which had been advanced before the High Court. First, it was said that no appeal could lie against an order of amendment because it was not a judgment within the meaning of clause 15 of the Letters Patent. Secondly, it was said that an order allowing the amendment was a discretionary cider. Therefore, the appellate court should not have interfered with the discretion. Counsel for the appellant submitted that judgment means a decision finally adjudicating the rights between the parties. It was emphasised that a judgment would be a decision on substantive rights of parties. Amendment was submitted to be a procedura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court in Asrumati Debi s case (supra) said that a judgment within the meaning of clause 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned. Second, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on the merits. In this context this Court referred to observation of the Full Bench of the High Court of Madras in Tuljaram v. Alagappa I.L.R. 35 Mad. 1. The test formulated by the Madras decision is not the form of the adjudication but its effect on the suit or proceeding in which it is made. The Madras High Court sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the defendant so far as the Court making the order was concerned. In finding out whether any decision is a judgment within the meaning of clause 15 of the Letters Patent each case must be looked into, in order to find out as to whether there is a decision determining the right or liability of the parties affecting the merits of the controversy between the parties. It is in that light that this Court in Asrumati Debi s case (supra) described the order refusing to rescind leave to be within the category of a judgment as laid down in the Calcutta cases though no final opinion was expressed as to the propriety of that view. The present appeal concerns an application for amendment of the plaint. The suit was filed in the year 1964 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis-description. Where a new legal entity is substituted, it was held in the M. B. Sarkar case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M. B. Sarkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise farther contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. it does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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