' MALIK MUHAMMAD QAYYUM, J.---This regular first appeal arises out of a suit for recovery of money which was decreed by the Administrative Civil Judge, Muzaffargarh on 29-6-1974 in the sum of Rs,3,04,989.66 in favour of the respondents/plaintiffs against the defendant/appellant.
2. Learned counsel for the respondents has raised a preliminary objection that the appeal is barred by time. In reply the learned counsel for the appellant has taken up the position that the appeal should be considered to be an appeal against the amended decree dated 8-2-1975 and was, therefore, within time. As an alternative plea, it was argued that sufficient cause for condonation of delay has been disclosed in the application under section 5 of the Limitation Act, 1908 (L.M. 3531- C/74) which merits acceptance.
3. In order to appreciate the contentions of the learned counsel for the parties, a reference to certain facts is necessary. Originally, in the suit entitled by the respondents/plaintiffs for recovery of Rs,3,04,989.66, Rana Tractors & Equipment Ltd., a Company incorporated under the Companies Act, 1913 was impleaded as a defendant. During the pendency of the suit, that Company was taken over by Government under the Economic Reforms Ordinance, 1972 (P.O. No,1 of 1972) and its name was changed to Millat Tractors Ltd. Vide Notification dated 12-2-1973. This fact was brought to the notice of the trial Court by the respondents by filing an application on 11-3-1973. The respondents/plaintiffs thereupon applied for amendment of the plaint so as to bring about the necessary change in the description of the defendant. On 11-6-1973, the learned counsel for the appellant/defendant stated that he did not oppose the application subject to payment of costs. The application was accordingly allowed subject to payment of Rs,5 as costs. In the amended plaint filed by the respondents the defendant was described as 'Millat Tractors & Equipments Ltd.' No objection was raised at that time as to that description. On the other hand, learned counsel representing the appellant before the trial Court stated that he did not wish to file any amended written statement and relied upon the written statement already filed by "Rana Tractors & Equipment Ltd."
4. The suit after its trial was decreed by the trial Court on 29-6-1974. This appeal was filed on 30-10- 1974 and on the face of it was barred by 124 days. During the pendency of the appeal, on an application made by the respondents under section 152 of the C.P.C. The description of the defendant in the decree was corrected by the trial Court on 8-2-1975 so as to read "Millat Tractors Limited" instead of "Millat Tractors and Equipment Limited".
5. In the above background, the first question which needs to be resolved is as to whether the limitation for filing the appeal would run from the date when decree was passed i,e, 29-6-1974 or from the date when the decree was amended by correcting the name of the defendant on 8-2- 1975.
6. According to the learned counsel for the appellant the decree originally was passed against "Millat Tractors & Equipment Limited" a nonexistent person and not against the appellant. It was not aggrieved of that decree and the grievance arose to it only when the decree was corrected to be against "Millat Tractors Ltd." In his view, the limitation would run' from the date when amendment was made.
7. The respondents' learned counsel has, however, argued that as the amendment made in the decree was purely clerical in nature and did not in any manner affect the merits of the claim and the appeal having been filed against the original decree, the limitation would run from the date when the decree was originally passed.
8. The answer to the question as to whether limitation for filing an appeal in case where the decree is amended by the Court possessing it would run from the date when the decree was originally passed or from the date when it is amended, depends upon the facts of each case. There is no universal rule that in all such cases where the decree has been amended, the limitation should be computed from the date of amendment. On the other hand, it is the nature of the amendment in the decree which has to be kept in view while determining this question. If the amendment made is purely formal in nature or is intended to correct a misdescription or incidental error in the decree, the limitation has to be computed from the date when the decree was originally passed and not when it was amended. However, if the decree is amended in some material respect and that amendment has the effect of creating some additional liability against a party, the limitation in that event may well be computed from the day on which the amendment was made provided, however, that the amendment itself is also made subject-matter of the appeal. The governing principles in this behalf have been elaborately stated by Naimuddin, J. (as his Lordship then was) in Land Acquisition Officer (B&R), Hyderabad v. Seth Allandino (1983 CLC 865) which we respectfully follow and approve. At page 873 of the report it was observed that:-- "(i) Time for filing an appeal run from the date of the judgment and decree in spite of correction, variation or amendment thereof, unless the amendment is of such a nature that it affects the original judgment and the decree in material respects; (ii) if a decree is amended in material respect so as the rights, privileges, liabilities or obligations thereunder are varied, then the time for filing appeal will run from the date of such amendment or variation provided such amendment or variation comes under attack by way of a ground in appeal; (iii) Amendment of the judgment and/or the decree under sections 151 and 152, C.P.C. By correction of particulars simpliciter or by supplying any omission under sections 151 and 152, C.P.C. At a later stage would not give fresh starting point of limitation."
9. Applying these principles to the present case, it would be seen that the grievance of the appellant is against the original decree which was passed by the trial Court on 29-6-1974. As already indicated, the suit had originally been filed against "Rana Tractors & Equipment Ltd." which was nationalised on the promulgation of Economic Reforms Ordinance, 1972 whereafter on an objection being raised, the respondents had applied for amendment of the plaint by substituting "Millat Tractors Ltd." in place of "Rana Tractors & Equipment Ltd." That application was not contested but was conceded by the learned counsel appearing on behalf of the appellant with the result that it was allowed by the trial Court subject to payment of costs. In the amended plaint, the name of defendant was shown as "Millat Tractors & Equipment Ltd." which was not objected to at any stage of the trial. On the other hand, the suit was contested by the appellant without any protest. We are, therefore, clearly of the view that the addition of word "equipment" in the name of the defendant was wholly inconsequential and its subsequent correction did not give rise to any fresh cause of grievance. The correction of misdescription of the name of the defendant in the decree does not amount to a fresh decree or even amendment' of the decree but was a case of correction of the misdescription which would not furnish a fresh period of limitation.
10. So far as the question as to whether the appellant is entitled to have the delay condoned under section 5 of the Limitation Act, 1908, it is to be seen that the only reason disclosed in the application for not filing the appeal within time was that they were misled by the counsel who either acted negligently or collusively. The affidavit filed by the appellant has been permitted by filing a counter-affidavit by respondent No,1. No other material having been brought on the record in order to show that the appellant was in fact misled by the counsel, it is difficult to sustain this contention.
11. Be that as it may, the appellant cannot be allowed to take benefit out of negligence of its counsel who represented it before the trial Court. By the expiry of the period of limitation valuable rights stood vested in the respondents of which they cannot be lightly deprived. In any case, admittedly the appellant had received certified copy of the impugned judgment and decree on 9- 10-1974 while this appeal was filed after 22 days on 31-10-1974. There is no explanation worth the name for this delay. It needs no gainsaying that in order to succeed in an application under section 5 of the Limitation Act, 1908 each and everyday delay has to be explained by the appellant.
' In view of what has been stated above, C.M.No,3531-C/74 is found to be without any force and is rejected with the result that the appeal is dismissed as being barred by time. No order as to costs.