TMI Blog1957 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ctment on March 28, 1944. This decree was confirmed in appeal on July 9, 1945. On a further appeal, the then Supreme Court of Kolhapur affirmed the decree on April 2, 1946. In the meantime, the original plaintiff made an application for execution of the decree but was resisted or obstructed by the present appellant in obtaining possession of the said properties. He then made an application under 0. XXI, r. 97 of the Code of Civil Procedure, complaining of such resistance or obstruction. This application was heard and dismissed under 0. XXI, r. 99 of the Code of Civil Procedure, on April 12, 1947. On March 12, 1948, the original plaintiff instituted the suit (out of which this appeal has arisen) under 0. XXI, r. 103 of the Code of Civil Procedure, for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as the first defendant. Prior to its amendment, the plaint stated: Defendant No. 2 in collusion with defendant No. 1 caused objection to be submitted against the said execution. The plaintiff had conducted misc. Suit No. 5/1946 for getting possession of the suit properties, getting the objection removed. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 6, 1951. The new paragraph was in these terms: In the Ichalkaranji village there are two independent Patil families 'taxima, viz., Mulki (Revenue) Patil and Police Patil. The suit properties are the Inam lands in the Police, Patil family. A woman by name Bhagirathibai, wife of Shivagonda Patil, was the Navwali 'warchi Vatandar' (representative Vatandar) of the Police Patil family. This woman died in the year 1936. Due to the death of the woman the -plaintiff acquired heirship-ownership over the suit property as the near heir. The suit properties were in the possession and under the vahiwat of defendant No. 2 without right. Therefore, the plaintiff filed Suit No. 3/1942 for getting declared his ownership of the suit property and for getting the possession thereof. In Appeal No. 9/44 and Supreme Appeal No. 5/46 preferred therefrom the plaintiff was unanimously declared to be the heir and the owner and the possession of the suit properties had been granted to the plaintiff. The sentences to be added to paragraph 3 were: Defendant No. 1 is from the Mulki (Revenue) Patil family. He has nothing to do with the suit property in the Police Patil family. By h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his plaint even at this late stage by putting in the paragraphs in the plaint as suggested by him in his application for further and better particulars filed in March 1950. The appellant then obtained special leave from this Court, and filed the present appeal. The main point which has been argued before us on behalf of the appellant is that in the circumstances of this case the learned Judges of the High Court were wrong in allowing an amendment of the plaint at such a late stage. It may be stated here that learned counsel for the appellant did not argue that the appellate Court had no jurisdiction or power to allow the amendment. His submission was that even though the appellate Court had such power or' jurisdiction, that power should not have been exercised in the circumstances of the present case. Two such circumstances were greatly emphasised before us. One was that the period of limitation for a suit under 0. XXI, r. 103, of the Code of Civil Procedure, had already expired before March 29, 1950, on which date the application for amendment or for giving further and better particulars was made. The second circumstance which learned counsel for the appellant emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resistance was that the period of limitation had expired. We accepted as correct the decision in Charan Das v. Amir Khan [1920] L.R. 47 I.A. 255, which laid down that though there was full power to make the amendment, such a power should not, as a rule be exercised where the effect was to take away from a defendant, a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case . As pointed out in Charan Das' case[1920] L.R. 47 I.A. 255., the power exercised was undoubtedly one within the discretion of the learned Judges. All that can be urged is that the discretion was exercised on a wrong principle. We do not think that it was so exercised in the present case The facts of the present case are very similar to those of the case before their Lordships of the Privy Council. In the latter, the respondents sued for a declaration of their right of pre- emption over certain land, a form of suit which would not lie having regard to the proviso to s. 42 of the Specific Relief Act (I of 1877). The trial Judge and the first appellate Court refused to allow the plaint to be amended by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the reliefs should be granted or not is a different matter as to which we are not called upon to express any opinion at this stage. We think that the correct principles were enunciated by Batchelor J. in his judgment in the same Case, ViZ., Kisandas Rupchand's case [1900] I.L.R. 33 Bom. 644., when he said at pp. 649-650: All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties............ but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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