PALANI CHETTY Vs. ARSVSEVUGAN CHETTY

JUDGEMENT

(1.) Defendant is the petitioner. He was sued on a promissory note. The plaintiff's suit was filed after the expiration of the prescribed period of limitation. He accordingly, in pursuance of Order 7, Rule 6, Civil Procedure Code, stated in his plaint the ground on which he claimed exemption from the law of limitation. The ground was that there had been a part payment towards principal and interest on 15 June, 1925, by the defendant "as per Vaddichittai filed herewith". Some months later it apparently occurred to the plaintiff or his advisers that the ground alleged in the plaint could not be relied on, and an application was made to amend the plaint by averring payments on later dates by the defendant towards interest. The application was opposed by the defendant as out of time, and the application to amend was withdrawn. As a matter of fact, the payment pleaded was found to have been made towards principal, and as the fact of payment did not appear in the handwriting of the defendant as required by Section 20, Limitation Act, it did not avail to give a fresh starting point for limitation. But the Subordinate Judge, following certain cases which will be referred to presently allowed the plaintiff to prove the later payments towards interest, notwithstanding that they had not been pleaded in the plaint as a ground of exemption from the law of limitation, and decreed the plaintiff's suit.

(2.) In Jogeshivar Roy V/s. Raj Narain Mitter (1903) I.L.R. 31 Cal. 195 a Bench of three Judges held that the plaintiff who pleaded acknowledgment of a particular debt as an exemption from the Limitation Act was debarred by Section 50, Civil Procedure Code (corresponding, to Order 7, Rule 6) from proving another acknowledgment at a later date. But the Court indicated that the plaintiff might get over the difficulty by obtaining leave to amend his plaint. The decision was criticised by Beaman, J., in Yakub Ebrahim V/s. Bai Rahimatbai . In that case the plaintiff alleged in his plaint that the defendant being an executor of his deceased creditor, there could be no bar of limitation. At the trial plaintiff sought to establish that the defendant was an express trustee within Section 10 of the Limitation Act. The learned Judge said: It seems to me that when a plaintiff does satisfy the requirements of Section 50, Civil Procedure Code, by stating what is in his opinion the ground upon which he intends to get over the bar of limitation, he ought not to be precluded from taking another and not inconsistent ground should he be later advised that the latter is the true ground.

(3.) This opinion was approved in Nistarini Debi V/s. Chandi Dasi Debi (1910) 12 C.L.J. 423. But the Court proceeded to show that the proper course, would be for the plaintiff to apply for leave to amend the plaint. Referring to Order 7, Rule 6, the judgment says: The discretion of the Court in the mutter of granting or refusing an application for amendment of the plaint cannot be restricted by an inflexible rule of law. It must be decided on the circumstances of each individual case, whether such application should be granted of not.