An amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case.

( 1 ) THIS is plaintiffs revision against the order dated 16-12-1980 re-corded by Shri P. C. Joshi, civil Judge, Pilibhit, in Original Suit No. 10 of 1974, Application for amendment paper No. 43-kha was rejected by the impugned order.

( 2 ) IT appears that original Suit No. 16 of 1974 was filed by revisionist on 15-2-74 against the respondents for recovery of Rs. 33,500/- along with costs and interest pendente lite and future at the rate of Rs. 6% per annum.

( 3 ) RESPONDENT 1 is M/s. Rajendra Paper Mills, Faridabad, Gurgaon, Har-yana.

( 4 ) RESPONDENT 2, Sri Prag Dass is a partner in the aforesaid Mill.

( 5 ) ACCORDING to the averments made in the plaint respondents proposed to purchase 1500 metric tonnes of Baggass (crush sugar cane) at Rs. 26/- per metric tonne which was to be paid in advance along with the amount of sales tax. This proposal was accepted on 4-1-1971 by plaintiff in district Pilibhit.

( 6 ) ON 17-2-1971 a fresh proposal for supply of additional quantity of 1500 metric tonnes on the same terms and conditions was agreed upon. In between 5-2-1971 and 6-3-1971 plaintiff supplied 234,606 metric tones Baggass, respondents paid Rs. 10,000/- on 19-1-1971 and 5-4-1971 towards the value of Baggass. Asa sum of Rs. 62,537. 67 was the balance price recoverable by plaintiff which remained unpaid, so plaintiff served a notice of demand of the said amount on respondents. Out of the said amount a sum of Rs. 47,525. 17 was sought to be paid by the respondents to revisionist through a cheque; however as the cheque was dishonoured, so the said amount was paid through a bank draft. This payment did not wipe out the entire liability of respondents, so the revisionist again served a notice of demand in the sum of Rs. 18,162/- on 10-12-1973. No payment was made so the present suit was filed by the revisionist on 15-2-1974.

( 7 ) MEANWHILE respondents filed suit No. 17 in January, 1974 against the revisionist in the Court of Sub-Judge, 1st Class, Ballabgarh, That suit was contested by the revisionist who in written statement put forward the plea that Raj-endra Paper Mills (respondent 1) was not in existence at the time of institution of the suit in Ballabgarh as its liabilities and assets had been taken over by raj Garhia Paper Mills Pvt. Ltd. incorporated on 14-6-1973, This amendment was allowed by sub Judge 1st Class, Ballab-garh, on 20-1-1976. The said suit in Ballabgarh was dismissed on 12-8-1977 vide copy of certified judgment filed par list 29-C dated 27-9-1977. The proceedings of Suit No. 16 of 1974 which had been stayed on account of cross suit at Ballabgarh recommenced.

( 8 ) 43 Kha was filed on 6-4-1978 by the revisionist seeking leave to implead M/s. Raj Garhia paper Mills Pvt. Ltd. , through its Director Sri Prag Dass as respondent 3 in this suit. It was alleged that this amendment was necessitated on account of the allegations made by the respondents that the partnership business carried on by defendants 1 and 2 in the name of rajendra Paper Mills had been changed to the style M/s. Raj Garhia Paper Mills through its director Sri Prag Dass and so the leave should be allowed. This prayer was opposed by the respondents who had applied on 15-3-1978 vide application paper No. 36-C that the suit of plaintiff be dismissed with costs as M/s. Rajendra Paper Mills was not in existence on the date of institution and the suit against non-existent firm was not maintainable.

( 9 ) THE proposed leave was opposed by the respondents vide, objection paper No. 46-Kha alleging that the proposed amendment was mala fide it was moved after more than 2 years and tend to deprive M/s. Raj Garhia Paper Mills Pvt. Ltd. of the benefit of law of limitation.

( 10 ) LEARNED Civil Judge found that the suit for recovery of balance price due for the period from 7-3-1971 up to 17-7-1971 was clearly barred by time against M/s. Raj Garhia Paper Mills on 6-4-1978 as a period for more than three years had already expired since the date or pur