Divi Seshacharyulu vs Divi Lakshminarayanacharyulu and Others

Yahya Ali, J.—The plaintiff in O.S. No. 408 of 1943 on the file of the District Munsiff of Masulipatam is the petitioner. He applied by

C.M.P. No. 1827 of 1944 to amend the plaint and that application was refused by the District Munsiff and the present petition arises out of that

order.

The first defendant is the elder brother of the plaintiff. They constituted a joint family, and it is agreed between the parties that they divided. The

plaintiff''s case is that the partition took place about 1928, while according to the defendant the plaintiff left the village as early as 1885 abandoning

his share in the family property. Ever since, the first defendant has been in enjoyment of the entire property. At present we are not concerned with

the details of the defendant''s version. The plaintiff''s case is that although the partition took place in 1928 some partition lists were prepared on

15th April, 1930, and that, the properties which fell to his share were entrusted by him to the first defendant for management under an arrangement

whereby the first defendant was to collect rents and deliver the same to the plaintiff at his place. It is also his case that in pursuance of this

arrangement, for three years, rents were accordingly delivered but that subsequently the first defendant committed default, and sometime later he

gifted away to his daughter, the second defendant, all the items of property that fell in the said partition to the plaintiff''s share. The prayer in the

plaint was for possession of those lands after evicting the first and second defendants and their representatives therefrom and also for past and

future mesne profits. In the application for the amendment of the plaint it was sought to add certain new paragraphs to the plaint to substantiate an

alternative prayer that in case it should be held that the alleged partition of 1928 was not valid and it became necessary to consider the plaintiff and

the first defendant as members of a joint family, the properties mentioned in schedule C attached to the affidavit accompanying the petition should

be partitioned and separate possession should be given to the plaintiff of his share. The learned District Munsiff rejected the application on the

ground that as a result of the amendment there will be a total change in the cause of action and jurisdiction from start to finish and that the

defendant will be greatly prejudiced by allowing the same. He also pointed out that the petitioner had a more comprehensive and more substantial

remedy by way of a regular suit for partition. The main argument of Mr. Sivaramakrishnayya, learned advocate for the petitioner is that the

amendment sought does not alter the complexion of the plaint as originally framed and that it does not introduce a new subject-matter. The

principle to be applied in such cases has been laid down by the Judicial Committee in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48

IndAp 214 : ILR 48 Cal

Act rules of Court 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 full powers of amendment must be enjoyed and should always be liberally exercised but

none the less no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of

amendment, the subject-matter of the suit.

After examining the matter on the facts, their Lordships observed:

It would be a regrettable thing, if, when in fact the whole of a controversy between two parties was properly open rigid rules prevent its

determination, but in this case their Lordships think that the rules do have that operation and that it was not open to the Court to permit a new case

to be made.

Applying this principle, this Court in Vaithilinga Mudali Vs. Murugian alias Natesa Mudali, refused an amendment which had the effect of

converting a suit in ejectment into a suit for partition The principle to be applied is thus quite clear. It has been in some cases laid down again that

where the amendment has the effect of altering the complexion of the case completely or where a party in whom a valuable right has vested is likely

to be deprived of it, an amendment will not be allowed. This case upon its facts appears to me to be hit by everyone of those principles, which

prohibit an amendment'' There were only two items of property in respect of which reliefs were asked for in the original plaint; in the proposed

partition suit into which the suit is sought to be converted the entire family property as it stood in 1928 or earlier is proposed to be brought in,

Schedule C attached to the affidavit consisting of nine items The original plaint was concerned with only one alienation in favour of the second

defendant, while according to the amended plaint, a number of alienations alleged to have been made by the first defendant will have to be

investigated Practically all the evidence that will be material and necessary in the original case of ejectment will perhaps be unnecessary or

superfluous or even irrelevant in the partition suit while the evidence that will be required in the partition suit will be of a nature radically different

from that required with reference to the original plaint The equities will also be different, as indeed the procedure. Thus from every aspect of the

matter, I am convinced that the effect of the amendment would be to alter the nature and complexion of the suit, to alter the cause of action and to

change the subject-matter of the suit. Mr. Rangachari for the respondents. points out that a certain plea of limitation which has been raised by him

and which would be available to him according to the original pleadings would be lost to him altogether in the event of the amendment being

allowed. Without conceding that such a plea of limitation is either well-founded or ill-founded the fact is there, that such a plea of limitation which it

would be open to the defendant to raise in one case would be unavailable to him in the other case. Taking all these factors into account, I am not in

a position to say that the lower Court was not justified in refusing to accord leave to amend the plaint.

The petition is dismissed with costs.