Bhargava, J - (1.) THIS is a second appeal by the plaintiff in a suit for recovery of Rs. 9990/- on the basis of a promissory note dated 24. 10. 1952. Both the courts below have dismissed the plaintiff's suit on the ground that he has failed to prove the execution of the pronote.
(2.) IN this appeal the main contention of the learned counsel for the appellant is that the first appellate court wrongly refused leave to the plaintiff to amend his plaint which he had sought by his application dated 10. 7. 1957. The learned District Judge who heard the first appeal rejected the application on the ground that on that date the suit on the original cause of action had become barred by limitation. Learned counsel for the parties in support of their rival contentions on the above question have cited a number of decisions, but in view of the two decisions of the Supreme Court, namely L. J. Leach & Co. Ltd. Vs. M/s. Jardine Skinner & Co. (l) and Pirgonda Hongonda Patil Vs. Kalgonda Chidgonda Patil (2), it is not necessary to discuss those decisions. The principle of law laid down in both these cases is that "as a rule the Court would not allow the amendment of the plaint if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. " The question, therefore, which remains to be determined is this whether in the circumstances of the present case, the amendment application should be allowed. It may be pointed out that it was alleged in the plaint that the defendant was indebted to Seth Milapchand and other persons and he wanted to pay all these debts. It was therefore agreed between the plaintiff and the defendant that the income from the villages of the defendant after reserving some amount for his expenses will be deposited with the plaintiff and the defendant would take money from the plaintiff as and when required by him. The defendant also undertook to pay interest at the rate of Re. 1/- per mensem. In para (2) of the plaint, it was alleged that the dealings between the parties began from 6. 7. 1951 and the defendant signed all the entries in the account book of the plaintiff for the amounts which were advanced to him as also the credit entries. In para (3) it was alleged that the dealings continued upto 22. 10. 1952 and on 24. 10. 1952 the accounts were gone through as a result of which Rs. 8,144/- were found due against the defendant for which the defendant executed a pronote in favour of the plaintiff and also agreed to pay interest at the rate of Re. 1/- per cent per mensem. The amount of the pronote was to be paid on demand. By the amendment application, the plaintiff sought permission of the court to base his suit on the original cause of action and to give details of the amounts which were advanced to the defendant from 6. 7. 1951 onwards. During the trial, Ex. 2 wherein all the amounts advanced to the defendant are entered and are alleged to have been signed by the defendant was also produced on behalf of the plaintiff. Most of the entries both on the credit and debit side were admitted by the defendant to have been signed by him. The promissory note which was the basis of the suit is made up of the items which are entered in Ex. 2. It would, therefore, appear that by amending the plaint the plaintiff was not making out a new case. The relief sought by the plaintiff remained unchanged. He sought permission to give details of the amounts which were advanced to the defendant from time to time after 6. 7. 1951 and as said earlier the defendant also admitted his signatures on most of the entries. The quality and quantity of the relief sought remained the same. The claim based upon the original cause of action cannot be said to be foreign to the scope of the suit. The plaint already contained the allegation about the original agreement and the date from which advances were made. Only the details of the advances were not given in it. Under such circumstances, in my opinion the interest of justice demanded that the plaintiff should have been allowed to amend his plaint even though on the amended cause of action the suit had become barred by limitation. It is true that leave to amend was sought in the first appeal when the trial court had given an adverse finding against the plaintiff, but that does not derogate from the principle stated above in allowing the amendment application. The special circumstances of this case outweigh the consideration that on the date of the amendment the suit on that cause of action had become barred. In L. , J. Leach and Co. Ltd, Vs. Messrs. Jardine Skinner and Co. (l), the Supreme Court allowed the amendment application when the matter was before that court in appeal and on the pleadings and evidence the claim as it stood was bound to fail. It is no doubt true that the plaintiff ought to have made an application for amendment while the case was before the trial court and should not have waited till the trial court gave a finding against him. For that he will have to pay costs to the respondent of both the appeals. I therefore, allow the plaintiff's amendment application dated 10. 7. 1957 as well as this appeal and set aside the judgment and decree of the courts below, and remand the case to the trial court which will amend the plaint according to the plaintiff's application dated 10. 7. 1957 and will permit the defendant to file a fresh written statement. The court will then determine the suit according to law. However, the plaint will be amended by the trial court only when the plaintiff appellant pays to the defendant or deposits in court respondent's costs of this appeal and that of the first appeal. The plaintiff is allowed one month's time from the date of the receipt of the record by the trial court to pay the costs. The appellant will bear his own costs of both the appeals. .;