Ismail Bibi Ammal vs Moideen Abdul Kadir Sahib and Another

Walsh, J.—The petitioner, plaintiff in the case, sued to recover rent from the defendants and possession of the property. Owing to the

defence set up in the written statement, the petitioner asked for leave to amend the plaint by adding also a prayer for declaration of title on paying

the necessary Court-fees. This petition was refused by the District Munsif and this civil revision petition is filed against his order. The District

Munsif says as follows:

The application is opposed. It is urged that the amendment now prayed for would change the character of the suit and that this application should

not therefore be allowed at this late stage in the suit.

It has been held in several cases that a suit for rent on the basis of a lease should not be allowed to be converted into a suit for declaration of

ownership : vide Bai Shri Majirajbai v. Maganlal Bhaishankar [1895] 19 Bom. 303. It has been held that when a plaintiff bases a claim on a

specific legal relationship between him and the defendant he should not be allowed to amend the plaint so as to base it on a different legal

relationship.

It may be pointed out that the Bombay case was decided u/s 53, Civil P.C. which has been since rep aced by Order 6, Rule 17, which is very

much wider in terms. In fact the phrase in Section 53 that a plaint shall not be amended either by the party to whom it is returned for amendment or

by the Court so as to convert a suit of one character into one of another and inconsistent character is not to be found at all in the present Order 6,

Rule 17 which says, that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on

such terms as may be just and all such amendments shall be made as may be necessary for determining the real questions in controversy between

the parties. The amendment in the Bombay case, it may also be noted, was sought after judgment and in the course of appeal. There is nothing in

the proposed amendment of the plaint which really adds anything to the rights which plaintiff has stated in the plaint and as the points which have

been raised in the case by the written statement necessarily involve the determination of the plaintiff''s title, the plaintiff should not be driven to a

new suit. There are several rulings of this Court to that effect, (Punyamurthula) Venkata Rattamma Vs. Chalasani Sreeramulu and Others, . This

was a suit of the same sort as the present and the learned Judge observed:

It may be observed also that if the plaintiff is to be driven to a fresh suit, it will be a suit of precisely the same character. Parties do not pray for

declarations when there is no obstacle to be removed and plaintiff will again state that she is the landlord, relying, if no further evidence is

forthcoming, upon defendants'' admissions in these suits, and defendants will again set up occupancy rights, confronted, however, by the finding in

these suits.

In Sobhanadri Appa Rao and Another Vs. Venkataramayya Appa Rao, , another Madras case it was held that all such amendments should be

allowed as may be necessary for the purpose of determining the real questions in controversy between the parties and in matters of amendments of

pleadings and Court-fees and such like, interference by the High Court in revision would generally save the parties considerable expense and the

Courts considerable loss of time and it is desirable that the High Court should interfere in proper cases.

In Maung Shwe Myat v. Maung Po Sin AIR 1925 Rang. 282, it was laid down that an amendment of the pleadings can be allowed at any stage

of the proceedings where the sole result of the refusal would be to drive the plaintiff to a separate suit, to avoid which is one of the principal objects

of the much wider rule as to amendment which has been introduced in the present Civil Procedure Code.

The respondents have not appeared to argue the petition but it seems to me that Order 6, Rule 17 and the rulings quoted are clear that an

amendment of this sort should be allowed to settle the real matters in issue instead of the plaintiff having to file a fresh suit. The petition is therefore

allowed and the plaint may be amended as prayed for. The petitioner will have his costs here in which the cost of typing copies will be included.

Costs in the lower Court will be costs in the suit.