Daitari Kar and Others vs Basudev Pati and Others

N.K. Das, J.—This petition is directed at the instance of the Plaintiffs against an order refusing amendment of the plaint. Plaintiffs originally claimed relief in the plaint as follows:

(a) For declaration of title and possession in respect of A. 0. 03 dec. out of plot No. 715 and A.0.01 dec. out of plot No. 716 consisting of schedule A of the plaint.

(b) For declaration of right and confirmation of possession in respect of A.0.01 dec. out of plot No. 717 by way of adverse possession.

A survey-knowing civil Court commissioner was deputed to measure the lands in question. After he submitted his report, Plaintiffs prayed for amendment of the plaint as follows:

(i) To delete the claim in respect of plot Nos. 715 and 716 and to add A.0.07 dec. out of plot No. 719 and the claim was for declaration of right by adverse possession.

(ii) Instead of A.0. 01 out of plot No. 717, the area should be A.0.07 out of the aforesaid plot and the original claim of adverse possession be retained.

No objection was filed by the Defendants to the petition for amendment of plaint when the matter was heard. The learned trial Court rejected the petition for amendment on the ground that the amendment was tantamount to a change in the nature of the suit.

It is not disputed that originally the claim of the Plaintiffs in respect of plot No. 717 was by adverse possession relating to A.0.01 dec. After receipt of the report of the survey-knowing commissioner, it was found that Plaintiffs were, in fact, in possession of A.0.02 dec. instead of A.0.01 dec. The original claim of title by way of adverse possession was retained. As regards plot Nos. 715 and 716 the prayer was to delete these plots and to substitute plot No. 719 out of which claim was in respect of A.0.07 dec. and the Plaintiffs claim it by way of adverse possession. It is contended that the claim of the Plaintiffs for amendment amounts to change the nature of the suit and a new cause of action is being introduced. The original prayer in respect of schedule B property on the ground of adverse possession still continues. Now the Plaintiffs want to add another plot in the plaint claiming right over the same by way of adverse possession. This was discovered after the report of the survey knowing civil Court commissioner was submitted. Defendants are also aware of this position after the report was submitted by the commissioner. If amendment in respect of schedule A property is now refused, Plaintiff will be compelled to file another suit in respect of plot No. 719. In my opinion, this will lead to multiplicity of suits.

In Nichhalbhai Vallabhai and Others Vs. Jaswantlal Zinabhai and Others, , it has been held that as the object of the rule for allowing amendments to the plaint was to avoid multiplicity of suits, this was a proper case in which the Court should allow the plaint to be amended; otherwise if the amendment were refused the Plaintiff would have to bring another suit. The Supreme Court in that case also followed a previous decision of that Court in L.J. Leach and 00. Ltd. v. Jardine Skinner and Co. A.I.R.S.C. 357.

In A.K. Gupta and Sons Vs. Damodar Valley Corporation, , it has been held that in the matter of allowing amendment of pleading the general rule 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 cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation.

The aforesaid dictum of the Supreme Court was also followed by this Court in Jagannath Nanda v. Bishnu Dalei 40 (1974) C.L.T. 888. A Division Bench of this Court have enunciated the principles in para 13 of the decision as follows:

(1) A prayer for amendment should not be disallowed merely because the Plaintiff is negligent or careless and the application for amendment is filed at a late stage; provided allowing such amendment would not result in any injustice to the other side.

(2) One of the classes of cases in which an amendment would work injustice to the opposite party is where it takes away from the latter a right accrued to him by lapse of time. Therefore, ordinarily a Plaintiff will not be allowed to amend the plaint by introducing a new cause of action which since the date of the claim has become barred by the statute of limitation.

(3) The above, however, is not a universal rule and under peculiar and special circumstances an amendment may be allowed even where it has the effect of depriving a Defendant of his right to plead limitation. This circumstance, however, should be one of the factors to be taken into consideration in the exercise of the Court''s discretion as to whether the amendment should be allowed, but that does not affect the power of the Court to order if that is required in the interest of justice.

Mr. Das, the learned Counsel for the opposite party, relies on Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249. This was a case in which the stand taken by the Plaintiff was negatived by evidence and thereafter the plain tiff sought amendment on a different ground when he failed in his first attempt and the Privy Council held that amendment in such a case should not be allowed. In the aforesaid case also it has been observed that all rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose so that fun powers of amendment must be enjoyed and should always be liberally exercised but none-the-less no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit.

Reliance is also placed on Chandu Modi and Others Vs. State of Bihar and Others, . This was a case in which Plaintiffs claimed right to property on the ground of settlement from the landlord. But subsequently he sought amendment on the ground of settlement by the receiver. The amendment was refused on the ground that the Plaintiffs were aware that the settlement was by the receiver and were negligent in not incorporating the real ground at the time of filing the original plaint.

Defendants further rely on Shriram Sardarmal Didwani Vs. Gourishankar alias Rameshwar Joharmal, . That was a case wherein the claim in the amendment was inconsistent to the original claim made by the party. In that case amendment of the written statement was sought and the stand of the Defendant was not only inconsistent, but also different horn the stand'' taken originally. But in spite of that amendment was allowed observing that the allowing of amendment in that case did not bring any surprise on the other side.

The next case on which the opposite parties rely is Bhagavatula Gopalakrishnamurthi and Others Vs. Dhulipalla Sreedhara Rao and Another, . The facts of this case are completely different from the facts of the present case. In that case it was held that certain facts were available and known to the Plaintiff at the time of filing of the original plaint and Plaintiff did not choose to mention those facts and, as such, the Plaintiff should not be allowed to make amendment.

In view of the aforesaid dictum of the Supreme Court, the Court has to see whether it is necessary in the interest of justice and for administration of proper justice to the dispute between the parties that the amendment should be allowed or not. The Court has further to see that the parties should not be driven to another suit and multiplicity of suits is to be avoided. In the present case, the Plaintiffs'' claim was based on adverse possession in respect of B schedule land. Now another plot is being added claiming right by way of adverse possession which consists of schedule A. Plaintiffs have relinquished their right in respect of plot Nos. 715 and 716. In respect of schedule B property Plaintiffs have prayed that the claim should be A. 0. 02 dec. instead of A. 0. 01 dec. After the report of the commissioner, the Defendants are well aware of its contents that the Plaintiffs have been found to be in possession of the portions regarding which they want amendment. No doubt the report of the commissioner is nut yet final. That does not affect in any way the amendment sought by the Plaintiffs. Whether the Plaintiffs are really in possession of the portions found by the commissioner, or whether the commissioner''s report is true or acceptable, are matters to be decided on merits in the suit. But the fact remains that the Defendants are not taken by surprise by the amendment sought by the Plaintiffs, nor they are prejudiced in any way. They have still a right to file additional written statement. This is not a case where the Plaintiffs were aware of the real extent: of particular plots under their possession. Therefore, it cannot be said that Plaintiffs had the knowledge that they were in possession of particular portions of particular plots. On the other hand it appears that Plaintiffs discovered that their possession was in respect of a portion of plot No. 719 and also A 0. 01 dec. more in respect of plot No. 717. As such, it cannot be said that it was within the knowledge of the Plaintiffs about the extent of each plot under their possession and they failed to state that in the original plaint.

On the analysis stated above, I hold that the amendment sought by the Plaintiffs does not change the nature or character of the suit and, as such, it should be allowed, but in the circumstances of the case they will be liable to pay costs to the Defendants; otherwise Plaintiffs will be compelled to file another suit and by allowing amendment multiplicity of suits would be avoided.

In the result, the revision is allowed. The impugned order of the Court below is set aside. The amendment sought by the Plaintiffs is allowed, subject to the condition that the Plaintiffs shall pay Rs. 100/ - to the Defendants as costs within six weeks from today, failing which the prayer for amendment shall stand rejected. Records be sent back immediately to the Court below. There will be no order as to costs of this revision.