A.Lala, J. - (1.) - This application for revision is made challenging the order No. 29 dated 13th March, 2001 passed by the learned Civil Judge (Senior Division) at Sealdah in rejecting the application under Order 6 Rule 17 of the Code of Civil Procedure that the appeal before the first Appellate Court arose from an order of dismissal of the suit by the Court of first instance on 31st May, 1997. It appears that the Court of first instance observed that the plaintiff did not make out such case to the effect that the second nomination of Fakir Mahammed was false on the ground of fraud, mis-representation, coercion, undue influence etc. When the employee concerned executed the second nomination form in cancellation to the first one and the authority passed the order of cancellation of first information and recorded the name of second nominee, unless the second nomination is cancelled (page 16 begins) the claim of the plaintiff cannot be allowed. Since the plaintiff has not prayed for cancellation of second nomination form, Court cannot give such relief to her. An appeal was preferred from such order. During the pendency of such appeal, an application was made by the plaintiff by saying: 'That inadvertently the plaintiff did not seek for declaration for cancellation of the second nomination obtained by the defendant No. 2 which the deceased Fakir was on death bed and in the hospital.'
(2.) Therefore, an amendment was sought to incorporate part of fraud etc. and relief for declaration was prayed for. The Appellate Court disallowed this application by saying as: "So, it goes to show that the cause of action of the plaintiff in respect of the 2nd declaration form had arisen long before 21.2.89 and in that view of the matter it cannot but be said that by way of the proposed amendment the appellant/plaintiff seeks to introduce a new cause of action which now stands barred by limitation."
(3.) The Appellate Court was pleased to rely upon a Division Bench judgment of this Court reported in AIR 1977 Cal 189 (Kanailal Das & Anr. v. Jiban Kanai Das & Anr.) wherein it was held that the amendment of a claim or relief is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case.;