An interlocutory order refusing amendment can be challenged in appeal from the final decree. An application for amendment is not a matter of right and the petitioner must allege facts. Amendments which are amplifications of the case already pleaded are not new cases or inconsistent cases.

( 1 ) THIS appeal is from the decree dated 7 February 1966 passed by A. K. Mukherjea J.

( 2 ) THE plaintiff Is the appellant.

( 3 ) ON 7 February 1966 the suit was dismissed with costs.

( 4 ) THE suit was filed on 8 June 1960. The plaintiff asked for a decree for Rs. 2,74,178-12-3.

( 5 ) ON 29 July 1965 a summons was taken out by the plaintiff for amendment of the plaint The application for amendment was heard by S. P. Mitra J. on 21 September 1965 and the application was dismissed. There is no judgment to find out the reasons for dismissal of the application. It was contended that amendments should have been allowed.

( 6 ) IN the application for amendment the plaintiff alleged that the defendant by letter dated 24 July 1957 written and signed by the defendant and/or its agents duly authorised in that behalf duly acknowledged its liability to deliver the balance quantity of the goods under the contract and also acknowledged that the time for delivery and/or performance had not expired. In the subsequent paragraph the plaintiff alleged that the plaint should be amended in the manner as indicated in red ink in a copy of the plaint annexed thereto and that the proposed amendments were by way of elucidation of the allegations and further that by mistake and/or through inadvertence the petitioner failed to incorporate the elucidation and/or particulars in the original plaint.

( 7 ) THE plaintiffs claim arose out of a contract in writing dated 5 January 1956 whereby the defendant sold and/or delivered to the plaintiff certain quantities of steel rails at rates mentioned in the plaint and delivery was immediate. The plaintiff alleged that the defendant was unable to effect delivery in terms of the contract and that pursuant to the defendant's request time for delivery was extended.

( 8 ) IN the proposed amendment the plaintiff alleged that time for delivery was extended till a reasonable time after 24 July 1957 which was a period of three weeks from 24 July that is to say, 16 August 1957 in the facts and circumstances of the case. In paragraph 20 (a) of the plaint the proposed amendment was that the defendant by letter dated 24 July 1957 acknowledged its liability to deliver the balance quantity of goods and also acknowledged that time for delivery and/or performance had not expired. The other proposed amendments sought for are in paragraphs 9, 12 and 20 of the plaint.

( 9 ) AT the trial it appears from the judgment, counsel appearing for the plaintiff stated that on the basis of the plaint the claim was time barred and counsel further invited the attention of the court to the fact that the plaintiff had sought to amend the plaint by pleading acknowledgment but the application for amendment was dismissed and in view of these facts counsel conceded that he could not proceed with the suit as on the face of the plaint the suit ought to be dismissed for limitation.

( 10 ) COUNSEL for the respondent contended that the dismissal of the application for amendment left the plaint in a form that disclosed no cause of action and that it was barred by limitation. Counsel for the respondent emphasized on the statement of counsel before the court on 7 February 1966 that counsel could not proceed with the suit by reason of the dismissal of the application for amendment and contended that all that happened at the trial on 7 February 1966 was that the plaintiff did not proceed with the suit and there was no decision or adjudication of the suit. On that reasoning counsel for the respondent contended that the appellant really appealed against the order of dismissal of the application for amendment but that the trial on 7 February 1966 was not a decision or adjudication on the question of limitation of the claim in the suit.

( 11 ) THE recent decision of the Supreme Court in Satyadhyan Ghosal v. Smt. Deorajin Debi, considered the scope and meaning of Section 105 of the Code of Civil Procedure. The Supreme Court said that an interlocut