O. P. Trivedi, J. - (1.) THIS second appeal arises out of a suit which was filed by respondent No. 1 against the appellants. The plaintiff came to Court with the allegation that he is a building contractor. Respondent No. 2 as Manager of the appellant-College entered into a contract with the respondent for the construction of certain building. Accordingly, the respondent carried out certain constructions for the appellant. Appellant made payments towards the dues of respondent No. 1 on three occasions, namely, 27-5-57, 31-3-60 and 23-8-61 but did not make full payment after proper accounting. The respondent served on the appellant a notice dated 11-9-61 asking them to render accounts and to pay such amount to the respondent as may be found due on accounting. It was alleged that inspite of notice they neither rendered accounts nor made payment. In the suit as originally framed the prayer was for a decree against the appellant for rendering accounts and for payment of Rs. 2,000 tentatively fixed as the amount due or such other amount that may be found due to the respondent on accounting. Subsequently, an application for amendment of the plaint was moved whereby the respondent prayed for permission to add an alternative relief for a decree for specific amount of Rs. 5,000. THIS amendment was allowed by the trial court and eventually the suit was decreed for Rs. 5,000 against the present appellant who appealed but the appeal was dismissed and the judgment and decree of the court below were confirmed.
(2.) THE point made by Sri Shiva Gopal, learned counsel for the appellant, is that the trial court acted contrary to law in permitting amendment of the plaint in disregard of the fact that the suit as originally framed was not maintainable because under law the appellant was not liable to render account to the respondent and secondly, when the amendment application was moved (17-11-1969) the suit for recovery of Rs. 5,000 had already become barred by time under Article 18 of the Limitation Act, even if the last payment of 23-8-61 were taken into account for computing limitation. In other words the main submission of the learned counsel is that the amendment should not have been allowed by the court below in respect of a relief which had already become barred by the law of limitation. Learned counsel places reliance on the case Lakshmi Sugar Mills Co. Ltd. v Banwari Lal Tandon, AIR 1959 Allahabad 546. In that case it was observed that it is not open to either party to a suit by amendment to seek to substitute a new cause of action or to change the nature or character of the suit after limitation has act-in. THE principle which ought to govern question of amendment of pleadings was laid down by the Supreme Court in the case of Pirgonda Hoponda Patti v. Kalgonda Patti, AIR 1957 SC 363 and, in the case of L.J. Leach & Co. Ltd. y. Messrs Jardine Skinner & Co., AIR 1957 SC 357. In AIR 1957 SO 363 the Supreme Court observed : "All amendments ought to be allowed which satisfy two conditions (a) 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. 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 respept of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused ; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. THE ultimate test, therefore, still remains the same ; can the amendment be allowed without injustice to the other side, or can it not?" On the above observations it will be noticed that the Supreme Court disfavoured permission to amend pleadings where the plaintiff sought to amend the plaint by setting up a fresh claim in respect of a cause of action which had since the institution of the suit become barred by time. It is relevant, therefore, to determine in each case whether the amendment seeks to introduce a new cause of action or whether a new or alternative relief is sought to be added to the plaint without introducing a new cause of action and on the basis of the cause of action already alleged in the plaint. In the case reported in AIR 1957 SC 357 an application for amendment of the plaint was moved before the Supreme Court. Originally the suit was for damages for wrongful conversion of goods. Through amendment the plaintiff intended to add a new relief for damages for non-delivery of goods in respect of orders placed and accepted by the defendant prior to termination of agreement. This amendment was permitted by the Supreme Court on the ground that the amendment sought merely to add a new relief but there was no attempt to change the original cause of action or to introduce a new cause of action and the plaint as it originally stood contained facts making out the cause of action for the new relief. THEir Lordships observed in this connection as follows :- "THE prayer in the plaint is itself general and merely claims damages. damages for breach of contract by the defendants in not delivering the goods." THEreafter, the Supreme Court delivered themselves of the following remarks which are pertinent to the matter in controversy : "It is no doubt true that Courts would, as a rule, decline to allow amendments,..................................... Court to order it, if that is required in the interests of justice.'' THEy relied on a Privy Council case of Charan Das v. Amir Khan, AIR 1921 PC 59 for this view. Observed the Privy Council : "That there was full power to make the amendment cannot be disputed,...... ......special circumstances of the case." It is clear from the proposition laid down by the Supreme Court that the Court has jurisdiction to allow amendment of the plaint even in respect of a claim which is already barred by limitation. THE fact that the claim may have become barred by limitation is only a factor which may be considered by the court at the time of exercise of discretion whether to allow amendment or to refuse it. But it is not a factor affecting the jurisdiction of the court to deal with the prayer for amendment of pleadings and amendment of pleadings can be allowed even in respect of a claim which has already become barred by limitation in special circumstances and when the larger interests of justice demanded it. In the present case, it is worthy of note that no fresh cause of action was introduced in the plaint by this amendment because the plaint as originally framed not only contained the allegation that the defendant had refused to render accounts but also the allegation that they had refused to pay inspite of demand for rendition of accounts and payment made through notice. THE claim for a decree for specific sum of Rs. 5,000 is evidently based on the cause of action arising for refusal to make payment of amount due for the work done. Thus, afresh cause of action was not introduced by amendment but only a new and alternative relief was added to the claim. THE interest of justice, therefore, required that this alternative prayer may be permitted by amendment and the lower court cannot be said to have exercised discretion in allowing amendment either improperly or illegally. The case of Lakshmi Sugar Mills Co. Ltd. v. Banwari Lal Tandon (supra), to my mind, is clearly distinguishable and is an authority only for the peculiar facts of the case which gave rise to that ruling because in that case the plaintiff wanted to change not only the relief but also the cause of action. The original cause of action stated in the plaint was refusal to render accounts. There was no suggestion of refusal to pay or non-payment and it was only by amendment that the cause of action of non-payment or refusal to pay was sought to be introduced. It is in this respect that the present case fundamentally differs from the facts giving rise to the case of Lakshmi Sugar Mills Co. Ltd., (supra). This was the only point urged in the appeal before me. I find no error in the exercise of discretion in the matter of allowing amendment. The appeal is without any force and is, therefore, dismissed with costs to the plaintiff-respondent. K.J.C. Appeal dismissed.;