Charan Das v Amir Khan (1920)

This is the fountain-head of the Indian law on amendment of pleadings after the period of limitation has run out. Every later decision on the point — and the Supreme Court has followed it more than once — traces the principle back to the passage in this judgment which acknowledges that an amendment taking away an accrued plea of limitation should not as a rule be permitted, and then holds that the rule is not absolute: special circumstances may outweigh that consideration.

It matters, secondly, for the reasoning that supports the amendment on these facts. The plaintiffs had sued in the wrong form, and their Lordships accept that the cause of action was unchanged by the change of form — the test still used to decide whether an amendment introduces something genuinely new or only states the existing claim more plainly.

The litigation arose out of six distinct suits, all consolidated and dealt with as one. The first three respondents sued for a declaration that they were entitled to certain rights of pre-emption against the several defendants, vendees of different shares and interests in some 6,813 kanals in the village of Tazagram. The conveyances giving rise to the pre-emption rights, and the six suits brought upon them, were spread over 1913 and 1914; the vendees were not all the same persons.

The plaints asked only for a declaration of pre-emption rights. They did not, in plain language, claim possession of the property sold and the usual consequential relief. The lower stamp duty payable on a declaratory plaint was not, their Lordships say, an adequate explanation. The real reason appears to have been that the title was in some confusion, the vendees were not in actual possession nor in receipt of the rents, and the plaintiffs themselves appear to have claimed that they were already in possession on their own account.

The defendants admitted the right of pre-emption but took the technical objection that a mere claim to such a right was not a claim to any right to property within the meaning of s. 42 of the Specific Relief Act, and that the right of pre-emption could not be enforced by a mere declaratory decree.

Their Lordships hold that, so far as the technical objection is concerned, it would appear to be well founded. A claim for a declaration would necessarily require to be followed by further consequential relief if the order were to be effectual; a bare declaration of the right to pre-empt is not the right way of asserting the right to pre-emption.

The obvious course, once the difficulty had been pointed out, would have been to apply at once to amend by asking for the substantive relief. The plaintiffs did not do so. The difficulty may have been that in two of the suits more than a year had elapsed from the date of the deeds, so that an application to amend would have met the very objection that confronted them later. They accordingly determined to fight upon the pleadings, "and with unfortunate consequences."

The Subordinate Judge of Mardan, on 18 January 1915, held that the claim for a declaration of the right to pre-emption and the claim for pre-emption itself were distinct, and declined to give leave to amend. The Divisional Judge supported that judgment on 18 June 1915. The Judicial Commissioner, on 12 December 1915, allowed the amendment to be made, and the appeal to the Board was brought from his judgment.

But for the unfortunate division of judicial opinion on the point, the appeal would not have been entertained at all, "for the power exercised is undoubtedly one within the discretion of the judge" and all that can be urged is that the discretion was exercised upon a wrong principle and ought therefore to be reversed. State that standard first in any answer: an order on amendment is discretionary, and an appellate court interferes only where the discretion proceeded on a wrong principle.

Their Lordships also enter a caveat against loose language. Where the right sought involves the dispossession of a perfectly lawful purchaser, it is not quite accurate to describe a plea that the suit was not brought within the period limited by the Act as a technical plea, if by that is meant a plea asserting rights which have no merits to support them.

The Board nevertheless agrees in full with the Judicial Commissioner's statement that, "however defective the frame of the suit may be, the plaintiffs' object was to preempt the land; their cause of action was one and the same whether they sued for possession or not."

If that be so, all that happened was that the plaintiffs attempted to assert rights they undoubtedly possessed under the statute in a form which the statute did not permit. Once it is accepted that they were attempting to establish those rights, no sufficient reason is shown for disturbing the order of the Judicial Commissioner, who thought they should be at liberty to express their intention in a plainer and less ambiguous manner. Their Lordships add that the relief sought was The passage that has since become the leading statement follows. That there was "full power to make the amendment" cannot be disputed; though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the "special circumstances of the case", and their Lordships were not prepared to differ from the Judicial Commissioner in thinking that the present case was one.

The order allowing the amendment was upheld. On the separate branch of the appeal, the Judicial Commissioner had dismissed four appeals filed in his Court which ought to have been filed in the Court of the Divisional Judge, and had declined either to return them or to extend time. Their Lordships held there was no reason whatever for disturbing that judgment. The appeals were dismissed with costs, and the respondents' cross-appeal on valuation was dismissed as well.

The plaintiffs lost their costs and much of the appeal even though they won on the amendment. The judgment is not a charter for careless pleading; the decision to fight upon the pleadings rather than amend at once is part of the lesson. The discretion is exercised to do justice, not to reward the party who kept a bad point alive.