Veerabhadra Thevan and Another vs Sri Vaithianathaswami Koil Devasthanam and Another

Jackson, J.—Petitioner seeks to revise the order of the District Munsif, Srivilliputhur, allowing plaintiff in O.S. No. 42 of 1924 to amend his

plaint.

It has been held in Penumarti Vasantarayudu v. Reddi Subbamma (1914) 21 LW 716. that the amendment of a plaint is a matter in which the

Trial Court exercises a legal discretion such as will not attract the revisional powers of the High Court u/s 115, Code of Civil Procedure. But by

this time the limits within which this discretion may be regularly exercised have been clearly laid down along certain broad lines; and if a Court

oversteps those limits it constitutes an irregularity that it almost certain to lead, to its proceedings being reversed on appeal. In that case it seems

advisable to set such material irregularity right at the outset by revision. At any rate there is good precedent, and, in my opinion, good logic for this

practice.

The plaintiffs sued for rent, alleging that defendants agreed that the property in question should be enjoyed on lease, and executed a lease deed,

described as the suit lease. The 1st defendant denied that he had ever enjoyed the land, and contended that the alleged lease deed was incapable

of legal proof. The plaintiffs finding this latter plea incontrovertible applied to amend their plaint as follows: ""In pursuance of what was written by

1st defendant in favour of plaintiffs, defendants have been enjoying the suit land, and are liable to pay damages for use and occupation."" The

District Munsif ordered the amendment as relating only to a new relief on the facts alleged in the plaint. This is not quite accurate. It is not stated in

the plaint that the 1st defendant enjoyed the property for this period. It only states in regard to possession that he raised a cotton crop. The suit is

strictly on the lease, without any insistence upon possession, which, as a matter of fact, 1st defendant denies and the amendment itself suggests that

possession is to be inferred from the lease. Apparently finding that the lease quo lease cannot be accepted in evidence because it is unregistered,

the plaintiffs want to file it as evidence of possession, which they cannot do, if it is to be used as evidence of a transaction affecting property.

The learned District Munsif was asked to review his order and has given his reasons, for refusing the application. He says in para. 3 that the

plaint is not based upon the suit lease but upon an oral lease evidenced by the suit lease. The translation of the plaint does not seem to warrant that

assumption but the point is immaterial in these proceedings because the amendment does not super-impose an oral upon a written lease; it seeks

for damages for use and occupation without any lease at all.

In para. 4 the District Munsif repeats the reason given in his order of amendment, that the amendment arises out of facts already alleged, which

has been shown above to be inaccurate.

In order to bring the present case into line with Sevugan Chetty v. Krishna Aiyangar (1920) 12 LW 334. on which the District Munsif relies, it

would be necessary for plaintiffs to have stated in their plaint that they were also prepared to sue for damages for use and occupation but were

deferring that suit to a later date, and then to have sought an amendment including this claim in this suit. Owing to the very peculiar circumstances of

Sevugan Chetty v. Krishna Aiyangar (1920) 12 LW 334 the Judges held that there would be no injustice in allowing a further relief already barred

by limitation.

There is no injustice to the defendants in allowing this amendment, for the effect of it is to enable the plaintiff to prove his right to money which,

before any bar by limitation had arisen, he had in the original plaint claimed as due to him by the defendants.

Such a case is widely distinguished from one where plaintiffs never claimed damages, until another claim was successfully resisted by defendants,

and the claim for damages had become barred by limitation. The District Munsif further relies upon Kisandas Rupchand v. Rachappa Vithoba 30

MLJ 529 (PC) and this case is rightly regarded as a leading authority because Beaman, J., carefully analyses the broad rules which govern

permission to amend He holds that permission should not be refused merely because plaintiff is opening fresh ground. Every amendment must bring

in such grounds and if it does not do so there would be no need to amend. Two criteria must be kept in mind. Does the amendment put the other

party to a disadvantage, or cause him injury; and if so, can the disadvantage or injury be compensated by costs? Applying that test to the present

case there can be no doubt that the amendment puts the party at a disadvantage. He has successfully met the case brought forward by the

plaintiffs, and the plaintiffs have failed on the original ground which they took. Then with the help of the Court they take fresh ground from which

without that help they would be barred. That is not a case which can be compensated by costs, as when the amendment merely prolongs the

proceedings or necessitates fresh evidence. It is a case where the defendant suffers injury or injustice by the amendment. As Batchelor, J.

observes, the general rule is that the amendment must not work injustice, and a particular case of this general rule is that where a plaintiff seeks to

amend by setting up a fresh claim which is barred by limitation. Both Batchelor and Beaman, JJ., are agreed that such a case is one where

amendment should not be allowed except in very peculiar circumstances. In the case before them, the claim had been regularly pleaded before a

bar of limitation had arisen, had been formally put in issue, and had been decided after consideration of all the evidence, page 651. To put the

present case on all fours with that case the issue of defendant''s possession would have to have been decided against them after consideration of all

the evidence. Following Kisandas Rupchand v. Rachappa Vithoba 30 MLJ 529 (PC) I hold that an amendment to a plaint which causes injury to

the other party is irregular except under very peculiar circumstances, and no such circumstances exist in the present case. The amendment is

therefore cancelled and the petition is allowed with costs.

It appears from the concluding paragraphs of the District Munsif''s order that the plaintiffs are prepared to sue for damages for use and

occupation on the original unamended pleadings. How far that is permissible is a question which I am not called upon to decide.