In L.J.Leach and Co. Ltd. and Another vs. M/s. Jardine Skinner and Co. (AIR 1957 SC 357), Supreme Court at paragraph 16 of the said decision 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 amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice.”
Again in T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricity Board and others ((2004) 3 SCC 392) Supreme Court observed as follows :
“The law as regards permitting amendment to the plaint, is well settled in L.J. Leach and Co. Ltd. v. Jardine Skinner, and Co., it was held that the Court 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 this 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.
It is not disputed that the appellate court has a coextensive power to the trial court. We find that the discretion exercised by the High Court in rejecting the plaint was in conformity with law.”
From the above therefore, one of the cardinal principles of law allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh Suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the 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 interest of justice. In Ragu Thilak D.John vs. S. Rayappan and others (2001) 2 SCC 472), Supreme Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the Suit itself. In a decision in Vishwambhar and others vs. Laxminarayan (Dead) through LRs. and Another ((2001) 6 SCC 163), Apex Court held that the amendment though properly made cannot relate back to the date of filing of the Suit, but to the date of filing of the application.
Again in Vineet Kumar vs. Mangal Sain Wadhera (AIR 1985 SC 817) Apex Court held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation.
Question of Limitation
Court reported in AIR 1967 SC 96 (A. K.Gupta and Sons Ltd. vs. Damodar Valley Corporation) in order to satisfy us that the prayer for amendment for a sum already specified in the plaint or such other amount as was to be determined after accounts, ought to be allowed though the Suit for recovery of money was barred when the amendment was sought. In our view, that decision of this Court stands on a different footing altogether and will not be of any help to the appellants. In that decision, it was made clear that the amendment of pleadings introducing new case cannot be allowed, if Suit on such case is barred. In that decision also, it was made clear that in the matter of allowing amendment of pleadings, the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action, particularly when a Suit on the new cause of action is barred. However, an exception was given in that decision saying where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. We have already observed that there is no quarrel on the proposition enunciated by this Court in the aforesaid decision. As held hereinabove, the date on which the application for amendment of the written statement and the counter claim was filed, the claim was already barred by limitation.
Therefore, if a fresh Suit was filed on the amended claim, there cannot be any dispute that the same could also be barred by the law of limitation. Under these circumstances and applying also the principles laid down in the aforesaid decision in the case of A. K.Gupta (supra), in the facts of this case, we are of the view that since even on the date of filing of the application for amendment of the written statement and the counter claim, the claim was barred and no fresh Suit could be filed on such amended claim and, therefore, the two courts below had acted within their jurisdiction in rejecting the prayer for amendment of the written statement and the counter claim. It may not be out of place to mention that following the principle laid down in A. K.Gupta’s case (supra), this Court again in Vineet Kumar vs. Mangal Sain Wadhera (1984) 3 SCC 352) expressed the same view to which we have already adhered to.