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Judgment
Gokulakrishnan, J.—The Petitioner Plaintiff in Interlocutory Application No. 1336 of 1981 in Original Suit No. 264 of 1975 on the file of the Subordinate Judge, vellore, is the revision Petitioner. He filed the above suit. for recovery of possession of the suit property and for other reliefs on the basis of a release deed, dated 19th June 1967 executed between him and his brother, the first Defendant herein. In the (SIC) between the plantiff and the first Defendant (SIC) in Appeal Suit Nos. 199 and 234 of 197 (SIC)dated 19th June, 1967 and also held that (SIC) on the ground that the immovable (SIC) were only partnership assets and the (SIC) in the release deed must be treated as dealing (SIC) assets, whether movable or immovable. (SIC) release deed, the suit property formed an in (SIC) between the partners and the suit (SIC) of the plantiff herein. The property was at Rs. 26,375.47 together with interest at 12 per cent per annum from the date of the evaluation till date of payment (SIC) Rs. 3 (SIC) as a whole has to be paid by the first Defendant and (SIC) second Defendant herein. Originally the plantiff (SIC) movable property and subsequently an amendment petition Introductory Application No. 1336 of 1981, in Original No. (SIC) of 1976 Was filed to amend the plaint by raising the alternative plan of claiming the abovesaid amount.
The five Respondents herein filed a counter stating that the suit property is not a partnership property, that it was not the joint family property of this Respondent and his sons, that the title to the suit property cannot pass to the Petitioner /Plaintiff unless there is a registered document in his favour as the property is admittedly for Rs. 100 in value, that the suit based on title cannot be converted into one for recovery of movable, that the cause of action will be altered, if the amendment is allowed, that in any event, the period of limitation for the claim of money is only three years, that as the petition is filed five years after the suit, the claim is hopelessly barred by limitation and that the amendment sought for cannot be allowed at this belated stage.
The second Respondent herein also filed a counter to the amendment petition stating that the petition is highly belated, that this Respondent is in no way connected with the alleged release deed said to have been executed between the Petitioner and the first Respondent herein, that the immovable property dealt with in the suit is not the partnership asset and that is any event, the amendment petition has to be dismissed as hopelessly barred by limitation.
The lover Court, after holding that the Petitioner introduces a new Case by such amendment, that the claim is barred by limitation and that the same has to be dismissed, dismissed the petition without costs. It is against this order the present revision petition has been filed by the Plaintiff.
The Petitioner herein originally filed the suit for recovery of possession of the suit property and for recovery of a sum of Rs. 6,250 being the value of the machineries. The application is filed to amend the plaint for recovery of money as an alternative relief. The addition prayed for is as follows. Subsequent to paragraph 6, the Petitioner wants to add the following as paragraph 6 (a):
The Plaintiff submits that if, in any event, notwithstanding the conclusive judgment in Appeal Suit Nos. l99 and 234of 1974 on the file of the Subordinate Judge of Vellore dated 9th January 1976, it is (SIC) tHat the release deed, dated 19th-June, 1967 and upheld by the appellate court, does not confer title to the Plaintiff to the suit property which has been held to be a partnership asse then the Plaintiff is entitled to be paid a sum of Rs. 26,875.47 together with interest at 12 per cent per annum from that date till date of payment of Rs. 35,000 as valued in the plaint and as admitted by the first Defendant in Original Suit No. 704 of 1969 on the file of the District Munsif of Vellore, together with interest at 12 per cent per annum from the date of the suit till date of payment. To this the Plaintiff is entitled to as an alternative relief.
The Petitioner herein further wants to add subsequent to plaint paragraph 14 the following as paragraph 14 (a):
After the word ''the Plaintiff'', ''or in the alternative directing the Defendants to pay the Plaintiff a sum of Rs. 26,875.47 together with interest at 12 per cent per annum from 19th June 1967 till date of payment, or Rs. 35,000 together with interest'' at 12 per cent per annum from the date of the suit till date of payment.
Consequential amendment was also prayed for in the valuation. paragraph.
Mr. T.R. Rajagopalan learned Counsel for the Petitioner submitted that there is no change in the original cause of action, that the prayer is consequential to the allotment in the release deed and that since the release deed can be acted upon, as held in the previous judgments, the prayer to amend has to be automatically allowed.
Mr. K.N. Balasubramaniam, learned Counsel for the Respondents herein submitted that by such amendment, the whole cause of action is changed and the prayer to get the money equivalent to the immovable property is in short a suit to recover an ascertained amount and that such a suit for recovery of money, which has been filed beyond the period of three years, is hopelessly barred by limitation. According to the learned Counsel, such an amendment of the plaint will deprive the Defendants of their valuable right of limitation and should not be allowed following the decision reported in K. Nagutha Mohammed Nainar v. Vedavalli Ammal (1959) I M.L.J. 307.
I have carefully gone through the records in this case. The Plaintiff bases his case purely on the release deed, dated 19th June, 1967. The amendment now sought for basically rests upon the release deed. Inasmuch as the Respondents herein are taking inconsistent pleas that they were advancing in the previously instituted suit, the Petitioner herein, in order to get his share of the asset of the share either as immovable property or as the money equivalent thereof as provided in the release deed, wants to have the plaint amended. According to the Petitioner, the immovable property was allotted to him in the release deed, which is a settlement between the partners, viz., the Petitioner and the first Respondent herein. Thus, it is clear that the amendment sought for does not change the basic cause of action and it is only an alternative relief based upon the release deed. The contentions now put forth by the Respondents as regards the admissibility of the release deed, the question of limitation and the maintainability of the suit, can as well be agitated by appropriate written statement and arguments at the time of the hearing of the suit.
Order VI, Rule 17 of the Code of CPC is wide enough to take in the amendment of the present nature and my discussions in paragraph supra will clearly establish that there is no charge in the cause of action. In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , the Supreme Court has observed as follows:
It is no doubt true that Courts would, as a rule, decline to allow amendments, 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 the 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.
Thus, it is clear from the above decision of the Supreme Court that an amendment can be ordered in the interests of justice even beyond the period of limitation. I am therefore of the view that the Court below has failed to exercise its discretion vested in it by law and in the interests of justice, the amendment has to be allowed on the facts and circumstances of the present case.
In the result, the civil revision petition is allowed, the order of the Court below is set aside and the amendment petition (Interlocutory Application No. 1336 of 1981 in Original Suit No. 264 of 1976) is ordered as prayed for. There will be no order as to costs.