Topic: Moman Lal vs Anandi Bai & Ors

Moman Lal vs Anandi Bai & Ors
Equivalent citations: 1971 AIR 2177, 1971 SCR (3) 929 - Bench: Bhargava, Vishishtha - Citation: 1971 AIR 2177 1971 SCR (3) 929 - Date of Judgment: 03/03/1971


Practice and Procedure-Plea not raised in pleadings or issues    or evidence-If     could be allowed to be raised in arguments-Amendment of pleadings-When may be permitted.

Headnote:

The appellant,     who was the mortgagee purchased under     two sale deeds dated 13th May, 1951 the mortgaged    property in discharge of the mortgage. The respondents, who were     the daughters of the original owner filed a suit claiming title to the property under gift deeds executed by their mother with respect to a share, (which she got under a sale    deed from her husband) and by their father on 2nd May 1951, in respect     of the entire property, and alleging that the    sale deeds in favour of the appellant were collusive. The trial court held that the gift deed executed by the     mother     was valid but that the gift deed executed by the     father     was fraudulent and not binding on the appellant. On appeal, the first appellate court held that both-the gift     deeds    were invalid. It held that the mother had lost her right to     her share,    that the gift deed executed by the.     father     was antedated having been in fact executed after 13th May, 1951, and that it was intended to defeat the sale in favour of the appellant. It also held that a judgment in another matter inter parties, delivered during the pendency of the appeal, operated as res judicata. It held that the gift deed by the father    was antedated on the grounds, (i) it was belatedly registered on 23rd August 1951 and (ii) the register of     the petition-writer     who wrote the gift deed was not produced thus raising a presumption against the respondents.     In second    appeal,     the High Court held that the lower courts erred in deciding the case on the grounds of fraud or antedating when no such case was put forward in     the pleadings, that on the question of res judicata there     was not enough material, and that the case should be, remanded permitting the parties to make amendments, in their pleadings but only in respect of the plea of res judicata. In appeal to this Court it was contended that : (1) the High Courtwas not justified in setting aside the findings of     the first appellate court that the gift deed executed by     the father    was fraudulent and ante-dated;     (2) the appellant should have been given an opportunity to amend the, written statement so as to include    pleas in respect of     the fraudulent nature and antedating; and (3) the High Court in fact had set aside all the findings and therefore its order permitted the appellants to raise new plea& by amending     the pleadings.

HELD : (1) (a) The pleadings in the written statement     did not indicate that the appellant put forward the case    that the gift deed was executed by the father after May 13,    1951 and that it was ante-dated. Not only was there no substance of such pleas there was not even a hint of such objections in the pleadings, and even     the facts necessary     for determining the, questions were not before the court.    Even the parties and the trial court did    not understand     the pleadings as containing a plea that    the gift deed     was antedated and    fraudulent in    the sense of    having    been executed to defeat and delay the creditors of the father of the respondents. No issue,

was framed on the question of fraud or antedating. Even in the course of evidence no questions were put on behalf of the appellant to the witnesses of the respondents suggesting such fraud or antedating. The question of the gift    deed being fraudulent was raised for the first time     before     the trial court in the course of arguments after the parties had already concluded their evidence. [934 B-D; 935 B-D; 937 E] Therefore, there was no justification for the trial court to go into the question and record its finding. [935 D] Nagubai     Ammal    v. B. Shama Rao, [1956]     S.C.R.     451; Kunju Kesavan v. M. M. Phillip, [1964] 3 S.C.R. 634,     Kidar    Lall Seal v. Hari Lall Seal, [1952] S.C.R. 179 and Union of India v. M/s. Khas Karanapura Colliery .Ltd. [1968] 3 S.C.R.    784, referred to.

(b) The first appellate court committed a similar error in affirming this finding of the trial court and committed a greater     error in going into the question whether the    gift deed was antedated, because, the plea was raised for     the first time before it only in the course of arguments.     The delay in registration was not explained by the     respondents because     the plea,was not raised in the trial court and     was raised    for the first time at the appellate    stage.     The register of the petition-writer was not    a document maintained by or in possession of the respondents. Its non- production could only     affect the evidence of petition- writer,     but even if his evidence was not relied upon no finding     of ante-dating could be given when there was no assertion and no evidence on behalf of the appellants.    [935 E-F; 936 E-H]

(c) Further, the appellant was the only creditor or of     the respondents' father and the     gift in respect of     the properties already mortgaged could not in any way defeat or delay his right because the done could only take     the properties subject to the mortgage. [935 G-H] (d) The plea that the mother lost her right to her share of the property and that her husband acquired the right     was immaterial, because, even if her gift deed was     disregarded the title to the properties was acquired by the respondents through the gift deed executed by the father. [939 D-E]. (2) The pleas     regarding the fraudulent nature and ante- dating of the gift deed, should not be allowed to raised by amendment because, a suit based on such pleas would be    time barred    and it would be unfair to the respondents to allow these pleas to be raised by amendment at such a late stage. The pleas of fraud and antedating in respect of the    gift deed raise an entirely new cause of action and a case quite different from that    pleaded     in the original written statement. It would not be merely a case of a different or additional approach to facts already given in    the written state ment. [941 B-C]

L. J.     Leach    & Company Ltd. v. Jardine Skinner, &     Co. [1957]    S.C.R. 438 and A. K. Gupta & Sons v. Damodar Valley Corporation [1966] 1 S.C.R. 796. referred to. (3) In     directing that the findings of both courts are     set aside the High ,Court was only referring to the points which it considered    and on, which it differed from the lower courts.     Therefore, in permitting amendments the High Court had given only liberty to the appellant to amend his written statement by setting    out the     requisite particulars     and details     of his plea of res judicata and other amendments which relate to the plea of res judicata,

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The permission to amend could not be interpreted as giving liberty     to the appellant to raise any new pleas which    were not raised at the initial stage. [939 G-H;940 A-C]

JUDGMENT:

CIVIL APPELLATE JURISDICTION :'Civil Appeal No. 473 of 1966.

Appeal    by special leave from the judgment and decree dated August    14, 1964 of the Bombay High Court, Nagpur Bench     in. Appeal No. 93 of 1959 from Appellate Decree. M. N. Phadke and A. G. Ratnaparkhi, for the appellant R. L. Roshan and H. K. Puri, for respondent Nos. 1 to 3. The Judgment of the Court was delivered by Bhargava, J.-This appeal by special leave has been filed by Mohan Lal who purchased the property in dispute from     the original owner, Bhiwa, by means of two sale-deeds Exhibits D-1 and D-2 both dated 13th May, 1951.    The properties    were already mortgaged in favour of the appellant by two earlier mortgage-deeds    executed on 23rd March, 1949 and 26th June, 1949 respectively. The plaintiff-respondents claimed    that the two sale deeds were collusive transactions between Bhiwa and the appellant and that, in any case, Bhiwa had 'no right to sell these properties to the appellant, as     the respondents had become owners of these properties prior to the execution of the sale-deeds. The four plaintiff-respon- dents are the daughters of Bhiwa by two wives, one of     the being,    Smt. Hendri. According to their case,     Bhiwa    sold two of     his malik-makbuza fields having an area of 11.33 acres by sale deed Ext. D-31 to his wife Smt.     Mendra     and to his nephew.    Barshya, each of the vendees getting a    half share in those fields.    Later, Barshya re-conveyed his share to Bhiwa ion 20th July, 1921. With regard to the share sold to Smt. Mendra, disputes arose between her     and Bhiwa. Bhiwa,    consequently, filed a suit in the year 1941     for cancellation of the    sale-deed Ext.     D-31    and for a declaration that he was the owner of the entire fields.     The suit was compromised and a decree was passed    giving    Smt. Mandra    the right of ownership to 1/4th share in those     two fields.     According to the plaintiff-respondents this share of Smt. Mendri was    gifted    by her     to the plaintiff- respondents by two gift deeds Exts. P-1 and P-2 dated     3rd October, 1948    and 28th October, 1948.     The title to     the property to the extent covered by these two gift deeds     was claimed     by the plaintiff-respondents on the basis of those deeds.    In addition, a deed of gift. Ext. P-3 was executed by Bhiwa himself in favour of the plaintiff-respondents on 2nd May, 1951, and this covered the    entire    property in respect of which sale-deeds were later executed by Bhiwa in favour    of the appellant on May 13, 1951. On the basis of this gift-deed, the plaintiff-,respondents 93 2

claimed     title to the entire property sold to the appellant by the two sale-deeds, so that claim in respect of part of the property was based on both the zift-deeds executed- by Smt. Mendri as well as the gift-deed executed by Bhiwa. 'Since    the appellant came into possession under the     two sale-deeds, the plaintiff-respondents brought a suit     for declaration of their title and possession. The trial Court held that the gift-deed Ext. P-3 executed by Bhiwa was fraudulent and, consequently, not binding on the appellant.     The gift-deeds Exts. P-1 and P-2 executed by Smt     Mendri     were held to be vaild.     The plea of     the plaintiff-respondents that the sale-deeds Exts.     D- I and D2 in favour of the appellant were not genuine was rejected. In respect of the property gifted by Mendri, the trial Court further     recorded the finding that Mendri had not lost     her right prior to the execution     of the sale-deeds.    This finding had to be given, as the appellant relied on the fact that there were proceedings under section 145 of the Code of Criminal Procedure between Bhiwa and Smt. Mendri after     the compromise in    Bhiwas suit recognising     Mendri's right to 1/4th share in the two fields.     In those proceedings,     the entire fileds were declared to be in possession of Bhiwa and a direction was made by the Magistrate to Mendri to file a suit for getting her 1/4th share partitioned. No such    suit was filed within the period of three years as    required by Article     47 of the Indian Limitation Act, 1908. It    was, therefore, urged that Mendri lost her right to the fields, so that the two deeds ,of gifts executed by her in favour of the plaintiff-respondents could not convey any title to them.

Against     this judgment the trial Court, an appeal was filed by the plaintiff-respondents, while a cross-objection     was filed by the defendant-appellant. The appeal and the cross- objection were heard    by the    Second    Additional District Judge,    Bhandara. The appeal by the plaintiff-respondents related to the property in respect of which their claim had been disallowed by the trial Court. while the appellant in the cross-objection challenged the decree in favour of     the respondents in respect of 1/4th share of Smt. Mendri.     The 2nd Additional District Judge dismissed the appeal of     the respondents and allowed the cross-objection of     the appel- lant.    The appellant's cross-objection was allowed on     the ground that Mendri had lost her right to the property before executing the    gift-deeds in favour of the respondents on accou nt of    her failure to file a suit for     partition or possession within three years after     the order of     the Magistrate under S. 145 of the Code of Criminal Procedure. The respondent's appeal was dismisses affirming the findings of the     trial    Court, but on two additional grounds.     One ground was that the gift-deed executed by Bhiwa in favour of the plaintiff-respondents was in fact ante-dated and     bad beenexecuted after the 13th May, 1951, so that it was 933

fraudulent and was intended to defeat the sale in favour of the appellant.     The second ground was that the suit of     the plaintiff-respondents was barred by the principle of     res judicata in view of an inter-parties judgment in Civil    Suit No. 42-A of 1952 which did :not exist during the pendency of the suit in the trial Court and was delivered while     the appeal was pending in the appellate Court. Against     this decree passed by the first appellate Court, second    appeal was filed before the High Court    of Bombay., The High Court held    that both the     lower    courts.     had committed an error in deciding the case on the ground of fraud or ante-dating in respect of the gift-deed of Bhiwa dated 2nd May, 1951, because no such case was put forward in the pleadings before the trial Court. The findings that the gift-deed was fraudulent and antedated were set aside     and the gift-deed was, consequently, held to be valid. On     the question of res judicata, the High Court came to the    view that the material, which was placed before the first appellate Court to decide this question, was not sufficient, though     the first appellate     Court    was justified     in entertaining this plea, 'because the judgment in Civil    Suit No. 42-A of 1952 came into existence for the     first    time during    the pendency of the appeal. Consequently, the    High Court,    while setting aside the decree passed by the first appellate court dismissing the respondents' suit, passed an order of remand permitting parties to make amendments in their pleadings in respect of this plea of res judicata, and directing the trial Court to consider-prayer for allowing other amendments, but added a condition that amendments with respect     to pleas of fraud, collusion or antedating in respect     of the gift deed dated 2nd May, 1951    executed by Bhiwa in favour of the respondents were not to be permitted. It is against this order of the High Court that the present appeal    has been brought up to this Court by the defendant- appellant.

The main point urged on behalf of the appellant was that the High Court was not justified in setting aside the findings of the first appellate Court that the gift-deed dated     2nd May, 1951 was fraudulent and ante-dated, as     there    were sufficient pleadings to justify this point being entertained by that Court.     In support of this plea, our attention     was drawn to paras 6 and 17 of the written statement of     the appellant. In para. 6, the peading was that Bhiwa was     all along in possession of the lands and the contenting of     the plaintiffs to the contrary were denied.     There was no valid transfer by Bhiwa before 13th May, 1951 in favour of     the plaintiffs as alleged.    It was denied again that plaintiffs were in possession of the lands covered by the sale-deds executed by Bhiwa in favour of the defendant, and a suit for mere injunction was incompetent. The pleading in para. 17 was that Bhiwa and

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Mendri    had been engaged for     the past many     years    in litigation and     the present plaintiffs     had colluded    with Bhiwa in seeking to set at naught the sale deed made by     him in favour of the defendant which gave him a discharge of his liability and a release of estate from debt validly taken by him. Plaintiffs were, thus not entitled it succeed. In the pleadings contained in these two paragraphs, we are unable to find any indication that the appellant wanted to     put forward     the case that the gift deed executed by Bhiwa     was antedated and    that, in fact this gift     deed was executed after 13th May, 1951 and subsequently to the sale deeds in favour of the appellant. The collusion alleged in para. 17 did not purport to have any relationship with the deed of gift. That collusion between the plaintiff-respondents     and Bhiwa was alleged to have been for the purpose of setting at naught    the sale deed in favour of the appellant. There is indication that even the parties an the trial Court did     not understand these pleadings as containing a plea that     the gift deed was     antedated and fraudulent in the sense of having been executed to defeat and I delay the creditors of Bhiwa.     No issue was framed on the question of fraud or antedating. Learned counsel for the appellant relied on issues 4, 12 and 13 to urge that such pleas were covered by the issues. These issues are as follows:- (4) (a)Whether on 2-5-1951, Bhiwa made     the gift of    5.661 acres of land held in malik- makbuza rights and 2.8 acres of occupancy land in favour of the plaintiff ?

(b) Whether Bhiwa executed the gift deed in favour of the plaintiff ?

(c) Whether the plaintiffs accepted the gift and acquired possession of the property ?

(12) Whether the plaintiffs have brought this suit in    collusion with Bhiwa.?    If so,     its effect ?

(13) Whether on 13-5-1951, Bhiwa was not     the owner of the fields and he could     not convey good title to the land     in favour of     the defendant ?

None of these     issues     appears to us to- contain     any suggestion that the gift deed by Bhiwa was executed to defeat    and delay the creditors or it was antedated. Issue 4(a) only challenges the execution of the gift itself;     but there is no suggestion that     the execution     was either antedated or fraudulent. Issue No. 12, which seems to    have been framed on the basis of the pleadings in para. 17 of the written statement, specifically charges them plaintiffs with bringing the suit in collusion with Bhiwa. The 935

collusion mentioned in para. 17 was thus interpreted to refer to, collusion in bringing the suit    and not in execution of the deed of gift Ext. P. 3. Issue No. 13    only challenges the title of Bhiwa at the time of execution of the sale deeds in favour of the appellant and    can, therefore, have no relation- at all to the fraud or ante- dating in respect of the gift deed Ext.     P-3. It is, thus, clear that the pleadings were never interpreted up to     the stage of the trial as containing any allegation of fraud or antedating in relation to the gift deed Ext. P. 3. Even in the course of evidence, no questions were put on behalf of the appellant to the witnesses of the plaintiffs suggesting such fraud or antedating, though. questions were asked in respect of the proper and valid execcttion of the gift deed. It appears that, for the first time, the question of     the gift deed being fraudulent must have been raised before     the trial Court in the course of arguments after parties"     had already     concluded their evidence, because the trial Court, in the     judgment dealing with issues Nos.    12 and     13, proceeded to record a finding that the gift deed, Ext.    P.-3 was executed by Bhiwa fraudulently in order to defraud     his creditors. On the face of it, there was no justification for the trial Court to go into this question and record this finding     when there were no pleadings in respect of it    and, even during the course of trial, evidence was not led    with the object of meeting such a plea. The first appellate Court committed a similar error in affirming this finding recorded by the trial Court. In fact, it proceeded to commt a greater error in going into the question whether the    gift deed was antedating having been executed after 13th    May, 1951. Stich a plea of antedating, it seems, was raised     for the first time before the appellate Court in the course of arguments. There is nothing on the record to show that     any such case was     put forward at any earlier    stage.     The consequence is     that the plaintiff-respondents. had     no warning     that such a case was being put forward and had no opportunity of tendering evidence to meet these     objections. In respect of the plea of fraud, evidence could have been given that Bhiwa had other properties, so that no question of defrauding the creditors could arise. Both those courts also lost sight of the fact that, on the    record,     the appellant was shown to be the only creditor of Bhiwa; there were no other creditors. As a creditor, he could not be defrauded, because his loans weren't cured by the mortgage deeds dated 23rd March, 1949 and 26th June, 1949. A gift by Bhiwa in respect of properties alreadymortgaaed could not in any way defeat or delay the mortgagee's right, because     the donee under the gift deed could only take the properties subject to the mortgages. The transfer by the deed' of gift could not in any way affect the mortgagee's rights: under the mortgages.     The finding-about fraud recorded by     the trial Court as well as the appellate Court was therefore, on the-

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-face of it, totally unjustified, and the High Court     was right in holding that they committed     this error, and setting aside their findings.

So far as the plea of antedating of the gift-deed Ext.     P-3 accepted by the appellate Court is concerned, the position is still worse. There was no suggestion at all that    the gift deed was antedated either in the pleadings or in     the course    of evidence. No such suggestion was put forward to any witness of the plaintiff-respondents, nor was     any statement made     in this behalf by ,any witness of     the appellant. The point was not even argued before the trial Court.     It was not mentioned in any form     before     the appellate Court. It appears to have been raised for     the first time in the course of arguments in the appeal, without notice to the other party. The point was again decided     on the basis of the evidence which came in incidentally when parties     were examining witnesses in respect of     the issues framed    by the trial Court. Only two    circumstances were relied upon by the appellate Court to record this finding of antedating.     One, was that the gift deed was registered on 23rd August, 1951, even though it was executed on     2nd May, 1951, and no explanation was forthcoming for    this inordinate delay. The second circumstance was that     the petition-writer, who scribed the deed of gift, did not    pro- duce his register of documents required to be maintained by him under the rules, which was held to raise a     presumption that, if that register had been produced, it would have shown that the gift deed was not written out on 12nd    May, 195 1. So far as the first circumstance is concerned, since no issue was framed. no occasion arose for the plaintiff- respondents to     give evidence to explain the delay     in registration.    No question was put to any witness of     the plaintiff-respondents why this delay had occurred Me    plea depended on questions of fact in respect of which. evidence could have been given and facts elicited. Such a plea could not be considered for the first time at the appellate stage when the party concerned had no earlier warning and did     not have any opportunity to give evidence explaining the reason for the delay.    The second circumstance for holding against the respondents appears to be based on a misunderstanding of the position of law. The register of    the petition-writer was not a document maintained by or in the possession of the respondents. They were not responsible for     its non- production. No presumption could be raised against them for failure of its production by the petition-writer. At best, the non-production could affect the value of the evidence of the petition-writer. Even if his evidence was not relied upon, no finding of antedating could be given when there was no assertion and no evidence on behalf of the appellant to show that the gift deed had been ante-dated and had    been executed after 13th May, 1951.    The finding 937

recorded was clearly without any evidence altogether.     The High Court was, therefore, quite correct in setting aside this finding also.

Counsel     for the appellant relied on four decisions of    this Court in respect of his argument that the High Court was not justified in rejecting the case of fraud and     antedating, which had been accepted by the first appellate Court, merely on the ground of want of pleadings. The first case referred to is Kidar Lall Seal and Another v.    Hari Lall Seal(1), where Bose, J., with whom Fazl Ali, J. agreed, said :- 'I would     be slow to throw out a claim on a mere technicality of pleading     when

the substance of the thing is there and no prejudice is caused to the other side, howeve clumsily    or inartistically the plaint may be worded. In any event, it is always open to a Court to     give a plaintiff such     general or other relief as it deems just to the    same extent as if it had been asked for, provided that occasions no prejudice to the other    side beyond what can be compensated for in costs." The principle enunciated has no applicability to the facts of the case before us.     As we have already indicated,     the pleadings did    not contain any reference at    all to     the question of the sale deed being fraudulent or antedated. Instead     of the substance of the pleas being there was no hint at all of these objections in the pleadings. The    next case relied upon is Nagubai Ammal & Others v. B. Shama Rao & Others(2). That case related to a plea of his pending.     The argument was that no plea of is pendens was taken in     the pleadings and, consequently, the evidence bearing on    that question could not be properly looked into, and no decision could be given based on the documents that the sale was affected by lis. The plea was not accepted on     the ground that

"that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific    issue, has been framed thereon,     and adduce evidence relating thereto."

In the case before us, we have already shown that parties did not go to trial on the issue of fraud and antedating in respect     of the gift deed Ext.     P-3, nor did    they adduce evidence relating to any such pleas. The third case relied upon by learned counsel is Kunju Kasavan v. M.     M. Philip, I.C.S. and Others(3).    In that case, a contention was     put forward that a notification or deposi-

(1) [1952] S.C.R. 179.

(2) [1956] S.C.R.451.

(3) [1964] 3S.C.R. 634.

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tion of Witnesses could not be looked into when there was no proper plea or issue about the exemption. The question     was whether     a particular notification    had exempted     one Bhagavathi Valli from     the provisions of Part     IV of     the Ezhava Act. The Court held that this question was. properly gone into and expressed its views in the following words :- "We do not think that the plaintiff in     the case was taken by surprise. The    notification must have been     filed    with the written statement, because there is no-thing to    show that it     was tendered    subsequently after obtaining     the orders of the court.     The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of     the defendant     deposed about the notification     and was not cross examined on this    point.     The plaintiff     did not seek the permission of     the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not. The parties went to trial fully understanding the central fact    whether     the succession as laid down in the     Ezhava     Act applied to Bhagavathi Valli or not.     The absence of an issue, therefore, did not    lead to a mis-trial    sufficient to    vitiate     the decision."

Again,    it is manifest that, in that case, parties had    gone to trial consciously    on that question and     had given evidence, while the only omission was in the pleadings.     In the case before us, we have already held that there was     not merely omission in the pleadings, but, in fact, the question of fraud and antedating was never the subject-matter of     any evidence and no party was ever conscious in the trial    that such questions are going to be decided by the    Court.     The last case relied upon is Union of.India v. M/s.    Khas Karanapura Colliery Ltd.(1). In that case, this Court    held that certain processes ancillary to the getting, dressing or preparation for sale of coal obtained as a result of the in me operations were being carried on. This conclusion     was resisted on the plea that, in the writ petition, no specific case was pleaded under the second part of sub-s. (4) of section     4 and, therefore, it was not open for the Court to consider that aspect of the case. The Court said "We are unable to accept this contention.     It is true that the pleadings on this point     are rather vague; but

(1) [1968] 3 S.C.R.784.

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all the    facts nessary for determining    that question are before the court. That aspect of the case appears to have been fully argued before the High Court without any objection. The High     Court, has considered    and decided that question. Hence the appellant cannot now be permitted to     contend that for want of necessary     pleadings that question cannot be gone into."

The circumstances of that case are again quite different from those in the case before us. In that case all     the facts necessary for determining the question were before the Court, while, in the present case, such facts could not come in, because the parties, at the time of trial, were     not aware that these pleas of fraud and antedating are going to be considered by the courts. None of the cases relied    upon by learned counsel affects the view taken by us that, in the present case, the High Court was fully justified in setting aside the findings of the appellate Court on the question of fraud and antedating.

Learned counsel for the appellant also referred to the Plea, of limitation    in respect of the right of Smt. Mendri through     whom'    also title was claimed     by the plaintiff- respondents in respect of some of the properties in suit. That plea becomes immaterial because, even     if the gift deeds executed by Smt.    Mendri are disregarded, the title to those properties was acquired by the respondents through the gift-deed Ext.     P-3 executed by Bhiwa himself and    the, earlier title claimed need not, therefore, be gone into. Lastly,     counsel urged     that now that    the suit has    been remanded to the trial Court for reconsidering the plea of res-judicata the appellant should have been given     an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the     gift deed Ext.     P-3. These questions    having    been decided     by the High Court could not appropriately be    made the subject-matter of a fresh trial. Further,     as pointed out by     the High Court, any suit on such pleas     is already time-barred and it would be     unfair     to the plaintiff- respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the, High Court has stated that the judgments    and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the, remarks in the judgment of the High Court. It was argued     by learned counsel     that, in making this order, the High Court has     set aside all findings recorded on all issues by the trial Court and the, first appellate Court. This is not a correct interpretation    of the order Obviously, in directing 'that findings of

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both courts are set aside, the High Court was referring to the points which the High Court considered and on which     the High Court differed from the lower courts.    Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by    this order. Similarly, in    permitting amendments, the High Court     has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars     and details of his plea of res judicata, and has added that     the trial Court may also consider his prayer for allowing any other    amendments. On the face of     it, those other amendments, which could be allowed, must relate to this very plea of res judicata.    It cannot be interpreted as giving liberty     to the appellant to raise any new pleas altogether which were not raised at the initial     stage.     The other amendments have to be those which are consequential to     the amendment in respect of the plea of res judicata. In support of the argument that the appellant should    be allowed     to amend his pleadings in respect of fund     and antedating also, reliance was placed on the decision of this Court in L. J. Leach and Company Ltd. v. Jardine Skinner and Co.(1), where an amendment was allowed at a very late stage by this Court.    The Court held :

"The plaintiffs seek by their amendment    only to claim damages in    respect     of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that     the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods."

The dictum in     that case has no application to the    case before us in which there are no allegations or pleadings in the written statement in respect of the now pleas sought to be raised by amendment. Reference was also made to     the decision of this Court in A. K. Gupta and Sons     v. Damodar Valley Corporation (2) where the principle laid down     was that :

"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 the new case or cause of action is barred. But it is also we recognised    that where the amendment does not constitute     the addition of a new cause of action, or raises a different case, but amounts to no more than a different

(1) [1957] S.C.R. 438.

(2) [1966] 1 S.C.R. 796.

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or additional approach to the same facts,     the amendment     will be allowed even after     the expiry of the statutory period of limitation." In the case before us, this principle, instead     of helping the appellant, goes against him. In this case, the pleas of fraud and ante-. dating in respect of, the gift deed    Ext. P-3 raise entirely new causes of action and a     case quite different from that    pleaded     in the original written statement. It     is not a case of a different    oradditional approach to facts already given in the     written statement. These cases do not, therefore, help the appellant and would not justify our permitting    amendment of the written statement at this late stage by varying the order of     the High Court.

The appeal fails and is dismissed with costs in this Court. V.P.S.     Appeal dismissed