Judgment

SARKAR, J. (On behalf of himself and Ramaswami J.) : The question raised in this appeal is whether the High Court was in error in refusing permission to the appellant to amend its plaint. We think it was.

2. The appellant had done work for the respondent under a contract which only specified the rates for different categories of work. The contract contained the following clause: "This quotation is based on prevailing labour rate of Rs. 1-4-0 per cooly but if there is increase of labour rate of more than 10 per cent in any particular month the proportionate increase in rate will be charged". Subsequent to the making of the contract there was an increase in the labour rate per cooly by 20 per cent. The appellant claimed that under the clause it was entitled to the whole amount of the increase while the respondent contended that it was entitled to a part of it only. This was the only dispute between the parties in respect of the contract. There was no other dispute either concerning the quantity or quality of the work done or otherwise howsoever.

3. The appellant filed a suit against the respondent only claiming a declaration that on a proper interpretation of the clause it was entitled to an enhancement of 20 per cent over the tendered rates as the sole difference between the parties was about the interpretation. The plaint stated that work had been done under the contract and that the value of the suit for purposes of jurisdiction was Rs. 65,000, but as it was a suit for a declaration only court-fees on that basis had been paid. The respondent in its written statement challenged the appellant s interpretation of the clause but did not dispute any material fact or that the only dispute was about the interpretation. The written statement concluded by saying that the respondent "was ever ready and willing and is still really and willing to pay the legitimate due to the plaintiff ".

4. Before the learned trial Judge several issues were raised but it is necessary to mention only two. One issue was as to the maintainability of the suit in the form in which it had been framed and the other issue was as to the proper interpretation of the clause. The first of these issues was not pressed at the hearing. The other issue having been decided by the trial Court in favour of the appellant, the suit was decreed. The other issues which had been raised had also not been pressed.

5. The respondent then went up in appeal to the High Court at Patna. There the issue as to the maintainability of the suit was resuscitated and pressed and it was decided in the respondent s favour because of the terms of the proviso to S. 42 of the Specific Relief Act 1877. The correctness of this view is not challenged in this Court. In the result the High Court dismissed the suit.

6. Now the appellant had in view of the High Court s decision as to the maintainability of the suit, sought its leave to amend the plaint by adding an extra relief in the following words: "That a decree for Rs. 65,000 of such other amount which may be found due on proper account being taken may be passed in favour of the plaintiff against the defendant" The amendment having been refused the present appeal has been preferred.

7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule no doubt, 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 new case or cause of action is barred : Weldon v. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan, 47 Ind App 255 and L. J. Leach and Co Ltd v. Jardine Skinner and Co., 1957 SCR 4