Subsequent petition filed for amendment of plaint purred by limitation.

R.Jayasimha Babu, J.

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.1295.81 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 Sec.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 Pronony Kumar Sanyal v. Beni Madha Sanyal Pronony Kumar Sanyal v. Beni Madha Sanyal Pronony Kumar Sanyal v. Beni Madha Sanyal J.T. (2000)10 S.C. 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 this 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 teat 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. Jayaban A.I.R. 1981 S.C. 1786 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 cause 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 pat