Maruti and others vs Ranganath

Palnitkar, J.—This case has been referred to the Full Bench so that the obvious conflict between, the case of" -- ''Dwaraka Bai v. Prayag Bai'', 37 Deccan LR 591 (A) and -- ''Gundi Bai v. Soundara Bai'', 10 Nazair-i-Osmania 532 (B) may be resolved.

The brief facts of the case are that plaintiff filed the suit on 14th Shehrewar 1357F. (corresponding to 14-6-1948) for a declaration of ownership and injunction against the defendants-appellants. One of the pleas raised in the written statement, which was filed on the 9th Behman 1358F was that the plaintiff-respondent was out of possession at the time of the institution of the suit and could not therefore bring a mere declaratory suit. The plaintiff applied for the amendment of the plaint on the 2nd Ferwardi 1358F alleging that he was dispossessed some time after the institution of the suit and therefore he may be allowed to amend the plaint so as to add a prayer for possession. The defendants persisted in their original allegation that the plaintiff was out of possession at the time of the institution of the suit. The Munsiff Magistrate recorded the evidence of the parties on this point and came to the conclusion that the plaintiff was out of possession at the date of the institution of the suit; he further held that the petition to amend the plaint should be dismissed. Having done that, the Munsiff Magistrate rejected the plaint. An appeal was preferred before the lower Court; that Court allowed the amendment following -- ''10 Nazair-i-Osmania 532 (B)'' and remanded the case for further trial. It is against this order of remand that the defendants have come in appeal, which is now before us for decision.

The provisions as to amendment are laid down in S. 58, Hyderabad Civil P. C., corresponding to O. 6, R. 17, Civil P. C. That Order lays down 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 the purpose of determining the real questions in controversy between the parties. In view of the facts of the case it is clear that the plaintiff based his claim on the allegation of his ownership to the lands in dispute and on that basis stated that the defendants'' obstruction to his possession may be removed. Thus the real question at issue is the title of the plaintiff to the lands in question. Soon after the defendants'' plea that plaintiff was out of possession, the plaintiff on 2nd Ferwardi 1358F submitted a petition requesting leave to amend the plaint. We do not find any mala fides in this prayer. The relief asking for possession, dispossessing the defendants, is not in any way contrary to the title of the plaintiff which he alleges in his plaint.

The principle on which an amendment will ordinarily be allowed is that the proposed amendment should not alter the nature of the suit. In this case we do not find that the nature of the suit will be altered in any way. In certain cases an amendment will be allowed even to introduce a new ground of claim or allegation of fact inconsistent with the original pleadings if the Court thinks it just and necessary. It is however well recognised that a plaintiff should not be allowed to amend the plaint in such a way as to introduce a new case altogether. Thus a case in which the old contract was disowned and a new contract was set up will not be considered to be a fit case in which amendment will be allowed.

In -- '' AIR 1922 249 (Privy Council) , their Lordships of the Privy Council observed:

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 full 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.

In our opinion that is the criterion which should be followed while deciding the question of amendment under O. 6, R. 17. In the case before their Lordships the facts were that the plaintiff sued for specific performance of a verbal agreement made in 1912 by the defendant with him for transfer of certain land for oil wells. The Court having found that the verbal agreement was not proved, the plaintiff applied to amend the plaint by claiming damages for breach of an old contract of 1903. Their Lordships held that the amendment could not be allowed, as it would amount to permitting a new case to be made out.

Such are not the facts in this case which has led to the application for amendment. The plaintiff only seeks for permission to add a prayer for possession which does not in our view alter the cause of action or change the essential nature of the suit.

Bramwell L. J. in -- ''Tildesley v. Harper'', (1879) 10 Ch D 393 (D) at pp. 396, 397 has laid down a rule of salutary practice as under:

My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise........................

However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.

We do not find any injustice in the case before us to the defendants which cannot be compensated by costs. The defendants have been from the beginning stating that the plaintiff was out of possession. Therefore there will be no injustice if the plaintiff be allowed to amend the plaint so as to add for a relief for possession.

Mulla has further stated in his CPC (11th Edn.) p. 591 that an amendment should be allowed where it would not matter that the original omission arose from negligence or carelessness. There is no injustice if the other party can be compensated by costs.

A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided. In -- (Golla) Lakshmiah Naidu Vs. (Golla) Krishnaswami Naidu and Another, , it was held that O. 6, R. 17 is considerably wider than the corresponding section of the old Code and the Court is given very wide power of discretion to allow amendments so as to avoid multiplicity of suits. Where the only result of refusing an amendment would be to drive the plaintiff to a fresh suit while the title remains the same, an amendment ought to be allowed. The facts of the present case are similar. We do not find that the cause of justice will be advanced if we refused permission to the amendment and thus drive the plaintiff to a fresh suit as the title of ownership claimed by him remains the same.

In -- AIR 1937 84 (Nagpur) , an amendment was allowed where a person brought a suit for a declaration of his Maharki watan; the Court allowed the plaintiff to amend the plaint for adding reliefs of possession and injunction. It was observed that a suit for possession on refusal of amendment would have been in time and as possession of field was consequential relief on title, allowing of amendment was not contrary to law.

In -- AIR 1938 712 (Lahore) , the principle as to whom amendment can be allowed has been very lucidly discussed. It was observed that:

It is not by a mere change in the wording of the plaint or the introduction of fresh details that the nature of a suit is altered. The alteration which affects the case is one where the original suit is wholly displaced by the proposed amendment or where a totally different or inconsistent case is introduced. But where this is not the case, leave to amend cannot be refused.

Now we will take into consideration the point of view discussed in the case of -- '' 37 Deccan LR 591 (A)''. It was held therein that if the plaintiff who is manifestly out of possession intentionally keeps that fact concealed from the Court, and avers that he has possession, he should not afterwards be allowed to amend the plaint so as to include a prayer for possession. The rule laid down in the said case is based upon considerations of equity and good conscience. It is observed that where the plaintiff comes to seek justice and he himself does not follow the principles of justice in not stating the correct facts then he should not expect any justice from a Court of law in his favour. It was further held that delay due to latches defeats justice.

No doubt that these two principles may have to be considered taking into consideration the facts of each case; but while applying these principles to the question of amendment we cannot countenance any extreme or rigid application of these rules.

The correct principle is as stated above which has been laid down by the Privy Council and the rule of practice adumbrated by Bramwell L. J. He has no doubt referred to the question of mala fides but that principle has been toned down by the later decisions wherein it has been observed that however negligent or careless the plaintiff may have been in committing the first omission and however late the proposed amendment may be, the amendment should be allowed if it can be made without injustice to the other side. Thus the real criterion will be the question of injustice to the other side while considering the question of amendment of plaint and the question of mala fides has receded to the background to that extent and whether injustice could be compensated by costs where amendment should freely be allowed. As already observed, the plaintiff should not be allowed to make out a new case by way of amendment. Taking into consideration the above principles, we are of the opinion that the observations made in -- '' 37 Deccan LR 591 (A)'' are too widely stated and are not binding and we differ from them.

We approve the principle in -- ''10 Nazair-i-Osmania 532 (B)''.

Taking into consideration all the facts of the case and the above principles, we are of the opinion that the lower appellate Court is correct in allowing the amendment. We uphold that point of view and dismiss this appeal. We make no order as to costs.