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PETITIONER: MOMAN LAL

       Vs.

RESPONDENT: ANANDI BAI & ORS,

DATE OF JUDGMENT03/03/1971

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHELAT, J.M. DUA, I.D.

CITATION:  1971 AIR 2177            1971 SCR  (3) 929

ACT: 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

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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, 930 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

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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,                             93 1 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

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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.,

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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 934 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

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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

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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- 936 -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

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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. 938 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

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             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.                                    939               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

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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 940 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

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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.               941               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.. 942