Mange Ram vs Jogi Ram

J.V. Gupta, J.—This petition is directed against the order of the trial Court dated May 18, 1985, whereby the application seeking amendment of the plaint was declined.

The plaintiff sought to amend the plaint describing the dimensions of the suit property and not directions of the suit property which were wrongly described in the plaint. The said mistake took place due to inadvertance of the person who prepared the site plan. This application was contested on behalf of the defendant, inter alia on the ground that this was pointed put by the defendant in his written statement, but in spite of that the plaintiff did not take any steps in that respect. Now when the case is fixed for arguments, the amendment could not be allowed.

The learned trial Court found that since the plaintiff remained silent till the conclusion of his evidence, the amendment could not be allowed as it would cause denovo trial of the case.

The learned counsel for the petitioner contended that the amendment sought is very material for the purpose of determining the real question in controversy between the parties and in case the application for amendment was delayed, the amendment could be allowed on payment of costs. On the other hand, learned counsel for the defendant-respondent submitted that the application as such was not maintainable when the arguments were heard, as according to the learned counsel, the suit cannot be said to be pending at that stage. In support of his contention he referred to an unreported decision of this Court in Civil Revision No. 1191 of 1985 decided on May 16, 1985.

After hearing the learned counsel for the parties, I am of the considered view that since the amendment was necessary for determining the real controversy between the parties, the same should have been allowed on payment of costs because of the negligence on the part of the plaintiff in not making the application earlier. The judgment relied upon by the learned counsel for the respondent is not applicable because therein the application was filed for additional evidence under Order 18, rule 17-A of the CPC whereas the present is an application for amendment of the plaint under Order 6 Rule 17, Civil Procedure Code. The said rule provides that the Court may at any stage of the proceeding allow either party to amend his pleadings whereas there are no such words in Order 18. rule 17-A, Civil Procedure Code. The amendment can always be allowed whenever it is found that the same is necessary for the purpose of determining the real controversy between the parties. This aspect of the case that the amendment sought for is necessary has not been contested on behalf of the defendant. In the circumstances, the petition succeeds, the impugned order is set aside and the plaintiff is allowed to amend his plaint as prayed for on payment of Rs. 300/- as costs. The parties have been directed to appear in the trial Court on September 24, 1985, when the amended plaint will be filed and the costs will be paid. It is further made clear that in case any evidence is to be led by the parties on account of the amendment the same will be produced at their own responsibility, though Dasti summons may be given, if so desired, as provided under Order 16, rule 7-A Civil Procedure Code.