Thakur Mahto and Others vs Jago Kuer and Another

Sinha, J.—This application in revision is directed against the order of the learned Subordinate Judge, Second Court of Patna, dated 13th November 1944, allowing amendment of the plaint by adding some more defendants and by adding also some causes of action arising subsequent to the suit.

It appears that the plaintiffs instituted the suit originally for setting aside a mortgage bond dated 18th July 1939, said to have been executed by the defendant 1 in favour of defendants 2 to 5. The suit was instituted on 2nd February 1944, and summonses were served on 2nd April 1944. Written statement was filed on 14th July 1944. In between the service of summonses and the filing of the written statement, on 8th April 1944, the defendant 1 executed five sale deeds in favour of the defendants sought to be added by the amendment on the allegations that the defendants amongst themselves had conspired to bring into existence subsequent sale deeds, and therefore leave was prayed for and obtained from the Court for adding these allegations to the plaint and making the vendees parties to the suit.

The application for amendment was made on 5th August 1944, which was rejected without hearing the parties on the ground that the said application had not been moved. The plaintiffs made the same application again on 6th November 1944, which was heard in presence of the parties on 13th November, and the Court ordered that the amendment should be allowed on condition that the plaintiffs should pay Rs. 32 as costs to the other side. By the same order the plaintiffs were directed to get summonses served on the added defendants, and it appears further that in January 1945, before this Court was moved in February this year, the Court executed (sic-exacted) additional court-fees also from the plaintiffs in respect of the transactions which had been allowed to be added to the plaint by way Of amendment. This Court was moved by the defendants, and a rule was issued by this Court on 16th February 1945 staying proceedings in the Court below.

It has been strenuously argued by Mr. C.P. Sinha appearing oh behalf of the petitioner that this application for amendment should not have been allowed, firstly because the same application had been dismissed on the previous occasion, that is to say, on 7th August 1944; and secondly because the amendment did not come within the purview of Rules 3 and 10 of Order 1, Civil P.C.

In respect to the first ground of attack, it is enough to point out that the first application had been dismissed without hearing the parties, and therefore the principle of res judicata would not apply to such an order. As regards the second contention, it does raise a serious question. The Contention is that the added defendants took their sale deeds long after the institution of the suit. Therefore, those transactions afforded a separate cause of action to the plaintiffs which could not be joined to the original cause of action which was comprised in the plaint as originally filed.

In this connection it is necessary to state the additional fact that it is the plaintiffs'' allegation that the defendants already on the record had in pursuance of a scheme brought into existence the sale deeds in question soon after summonses had been served upon them so as to make it sure that the plaintiffs did not get any effective relief in the suit as originally instituted. Ordinarily events coming into existence after the institution of the original suit are not to be taken into account, but cases have laid it down that in exceptional circumstances like the occurrence of devolution of interest by death or otherwise, it is open to the Court to allow the parties to go into matters which came into existence after the institution of the suit. If these transactions had come into existence before the institution of the suit, then, in my opinion, Rule 3 of Order 1 would have applied to the facts alleged by the plaintiffs. The plaintiffs have in effect alleged that these transactions arise out of the desire of the defendant No. 1 who is a widow possessing the property for the time being to place the property out of the reach of the reversioners. The allegations further are that all these transactions, namely, the mortgage bond which was originally included in the suit and the sale deeds which have been brought into existence after the institution of the suit were fraudulent and collusive transactions without any necessity or benefit of the estate. Hence, it is manifest that common questions of law or fact or both may arise for determination in the suit. It is doubtful how far this amendment comes under Rule 10 of Order 1, but the most important principle governing amendment of plaint is that amendments should be allowed if by doing so multiplicity of suits may be avoided.

In this case that condition is entirely fulfilled. It cannot be said that by allowing the amendment the lower Court has allowed the nature of the suit to be changed or has allowed one cause of action to be substituted for another. The utmost that can be said against the order passed by the Court below allowing the amendment is that it has the effect of allowing the plaintiffs to add certain more causes of action to the original one. But as already indicated all these causes of action are allied to one another on the allegations made by the plaintiffs, namely, that all these transactions have been brought about as a result of a conspiracy amongst the defendants.

Another circumstance which must tell against the petitioners is that they did not move this Court at the earliest opportunity and allowed the plaintiffs to incur further expenses by way of having summonses served upon the added defendants and by having to pay additional Court-fees on the additional causes of action introduced into the suit. If the defendants were really anxious to get the matters set right by this Court, they should have moved this Court with all due expedition.

As a result of these considerations, I am not inclined to hold that the Court below has acted without jurisdiction or that it has acted with material irregularity in the exercise of its jurisdiction.

The application is accordingly dismissed, but in the circumstances, without costs.