ORDER
R. Jayasimha Babu, J.
1. The appellant had, in its objection to the plaintiffs application to amend the plaint to substitute the figure of Rs.1295.81 lakhs in the place of
Rs.10.00 lakhs as the amount of damages claimed, such an amendment having been sought by way of an application in July, 1998 though the suit had been filed five years earlier in March, 1993 – stated that the application for amendment was filed way beyond the period of limitation and therefore, the application ought to be dismissed. The learned single Judge, in his order, did not deal with this contention. He, however, allowed the application for amendment.
2. In the affidavit filed in support of the application it was only stated that subsequent to the filing of the suit, records have been gathered and after the examination of the available records, the plaintiff felt the need to seek amendment and to substitute the sum of Rs.1,295.81 lakhs, as the amount of damages for which the plaintiff was entitled to a decree. In paragraph 22 of the plaint it was stated that the plaintiff had not quantified the damages but as the amount would not be less than Rs.10.00 lakhs he was seeking a decree for a sum of Rs.10.00 lakhs as damages. In the prayers the plaintiff had stated that the decree be for Rs.10.00 lakhs or such higher sum as may be determined towards damages for loss. The damages for loss claimed was for the consequences of non supply of electricity to the petitioner between 28.3,1983 to 16.10.1992.
3. In the affidavit filed with the application for amendment, no reason was set out as to why the application to amend had not been filed within three years. Bald assertion was made that the documents were available only prior to the filing of the affidavit, and on scrutiny thereof the claim for the larger sum is regarded as justified.
4. Learned senior counsel for the appellants submitted that the Court has omitted to take note of Section 3 of the Limitation Act which, inter alia, requires that every suit instituted, appeal preferred, and application made after the prescribed period “shall be dismissed although limitation has not been set up as a defence.” In this case, the question of limitation had been expressly raised but has not been adverted to by the learned trial Judge. Counsel in this context referred to the decision of the Supreme Court in the case of Pronoy Kumar Sanyal v. Beni Madhav Sanyal, JT 2000 (10) SC 366, wherein the Supreme Court observed that “the High Court should have considered at the stage whether the amendment of the plaint that was sought was barred by time.”
5. Learned counsel is clearly right in his submission that the learned trial Judge ought to have considered the question of limitation and his failure to do so has resulted in an order which cannot be regarded as a sustainable one.
6. Learned counsel for the respondent contended that the appeal itself is not maintainable as, according to him the order merely leaves all the rights of the defendants in tact, although the order chose to permit the plaintiff to include a higher claim and treat that claim as part of the plaint. Counsel in this
context referred to the judgment of the Supreme Court in the case of Shah Babulal v. Jayaben, , more particularly para 120 wherein illustration of interlocutory applications which will be treated as judgments have been set out. One such illustration is an order granting leave to amend the plaint by introducing a new case of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendants.
7. The illustration so given is only an illustration and the list set out in the judgment is not an exhaustive statement of all the circumstances in which the appellate court may or may not treat the order of the learned single Judge as judgment for the purpose of appeal under Letters Patent. The learned trial Judge in this case has granted the prayer of the plaintiff to amend the plaint ignoring the plea of the defendants that the amendment cannot be permitted in view of the bar of limitation. The omission to consider the plea has certainly vitiated the order and has resulted in an adverse consequence and affects the valuable rights of the defendants. The order under appeal is, therefore, a judgment against which an appeal will lie.
8. Counsel for the respondent then submitted that the amendment does not alter the cause of action. Mere requantification of the relief, it was submitted, is not the same as introducing a new cause of action. He is right in that submission. The cause of action is different from the relief. However, it is the duty of the plaintiff to claim all the reliefs to which he is entitled arising from the cause of action for the suit. It is so provided by Order 2, Rule 2 of the Code of Civil Procedure, which states that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
9. The plaintiff no doubt did not relinquish any portion of his claim. That does not improve matters. The omission to make the claim itself results in the plaintiff becoming disentitled to raise the claim subsequently. The plaintiff again by stating in the plaint that he needs more time to quantify the amount of the damages cannot grant to it a period of time beyond the one prescribed by the law of limitation, for quantifying a higher amount. By his failure to act in time he takes the risk of losing out with respect to the larger sum, which he may think that he is entitled to on the same cause of action.
10. The Law of Limitation is intended to protect the defendants from claims being made long after the periods specified in the law have elapsed. The plaintiff cannot, therefore, be allowed to enlarge the period of limitation by merely stating in the plaint that he will come back to the court at a later point of time with the revised figure of the damages. If he is unable to state the amount precisely in the plaint, he must carry out such amendment as he may think, he is entitled to, within the period of limitation if he is to prevent a challenge to any subsequent application for amendment on the ground of limitation. The mandate of Section 3 of the Limitation Act is clear and indeed
it casts a duty upon the court to dismiss a suit or application which is barred by limitation at the threshold. Having regard to the rigour of the provision, the plaintiff cannot be allowed to reserve to himself a right to spring surprise on a defendant, by claiming a huge amount, as in this case, by seeking to revise a claim of Rs.10.00 lakhs more than hundred fold and making a claim for Rs.1295.81 lakhs.
11. Before concluding, it is necessary to advert to two decisions of the Apex Court. In the case of Shanti Kumar v. The Home Insurance Co. of the New York, , it was held that where an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a ‘Judgment’ within clause 15. It is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. The other case is of Muni Ltd v. The Oriental Fire and General Insurance Company Ltd., 1996 (1) L.W. 349. In that case a suit for declaration had been filed without seeking consequential relief. The amendment, which was sought to be made long after the period of limitation was over to claim that consequential relief of payment of the quantified amount was held by the Apex Court to be one which could not have been entertained. The court held that the defendants in the suit had acquired a valuable right of defence by way of bar of Limitation.
12. The case here is somewhat similar. By failing to quantify the relief properly in the plaint or at least by seeking to amend that claim within the period of three years from the date on which cause of action for the suit had arisen, the plaintiff allowed the defendants to acquire a valuable right of defence of bar of limitation. There are no special circumstances in the case which would warrant that bar of limitation being ignored even if one were to be ignored. The Supreme Court in the case of Shanti Kumar v. The Home Insurance Co. of the New York, referred to supra, has observed that in exceptional cases an amendment may be allowed even where the effect is to take away from a defendant a legal right which had accrued to him by lapse of time. As was found by the Apex Court in that case, in this case also there are no special circumstances warranting the allowing of the amendment sought by the plaintiff.
12. In the result, the impugned order of the learned trial Judge is set aside. The application to amend the plaint shall stand dismissed. The appeal is allowed.