1. This is an application for an amendment of pleadings made in rather peculiar circumstances. To his plaint, admitted on March 3, 1945, the plaintiff, who is claiming a dissolution of a partnership between himself and the defendant and consequential reliefs, annexed a document as one on which he would rely, namely, a deed of partnership dated December 18, 1943,
2. This deed recited that it was thereby mutually agreed and declared that the parties thereto, the present plaintiff and the present defendant, had become partners as and from October 27, 1941, 'upon the following terms and conditions.' Clause 9 provided that the working partner (the present plaintiff) should devote his whole time and attention to the partnership business and should not directly or indirectly engage in any other business. The defendant counter-claimed, alleging breaches of Clause 9 or of an antecedent oral agreement, both before and after December 18, 1943. To this counter-claim the plaintiff replied (inter alia) as follows:
The plaintiff will rely on a proper construction by this honourable Court of Clause 9 of the said deed of partnership. The plaintiff says that it was specifically agreed between the plaintiff and the defendant that the plaintiff need not devote his whole time to the partnership business and that the plaintiff should be at liberty to engage in any other business of his own.
The plaintiff says that the partnership started in October 1941 and the partnership deed was executed on December 18, 1943, During the interval the plaintiff pursuant to the said specific agreement had done separate business on his own. At the time when the said deed was executed the plaintiff objected to the said Clause 9 but the defendant assured the plaintiff-that it was a mere formality and that the plaintiff was at liberty to do business of his own. Relying on the said representation and assurance the plaintiff executed the said agreement.
3. The plaintiff's claim, as far as I am concerned, is now settled, and There has been an agreed reference to the learned Commissioner. Proceeding with the counter-claim, the defendant gave his evidence-in-chief, and in the course of his cross-examination was asked questions relating to the specific agreement referred to in paragraph 6 of the reply. Evidently, this specific agreement of which no particulars were given or even asked for, is supposed to have occurred in October, 1941, when the partnership in fact commenced, and there would have been no legal difficulty in the way of the plaintiff's proving it if it were not for the recital in the deed of December, 1943, to the effect that the terms of that deed had all along been the terms of the partnership. Consequently, when Mr. Banaji for the plaintiff sought to elicit from the defendant an admission that the alleged oral agreement had been a term of the partnership, objection was taken by the defendant on the ground that any such evidence would be inconsistent with Section 92 of the Indian Evidence Act which, BO far as material, provides as follows:
When the terras of any such contract '...(that is to say any written contract) ' have been proved according to the last section ' (which has taken place here) ' no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument ...for purpose of contradicting, varying, adding to or subtracting from its terras.
It is quite evident to me that if you agree in writing that yon have been doing business since a previous date on particular terms, and you then want to prove orally that the terms on which you had been doing business were not those terms, you are contradicting the written document by oral evidence, and unless you come within one of the provisos to Section 92, that cannot be done. Proviso 1 allows proof of any fact which would invalidate a document or entitle any person to any decree or order relating thereto, such as 'mistake in fact or law': proviso 4 allows proof of the existence of any distinct subsequent oral agreement to rescind or modify any such contract, except in certain cases, of which the present is not one. Proviso 4 cannot help the plaintiff here because the specific agreement which he has pleaded must have been antecedent and not subsequent to the written agreement, and the assurance which he has pleaded was, again, precedent and not subsequent to the written agreement. That is obvious from his own pleading. Consequently it seems to me that on the pleadings as they stand he could not come under proviso 4, but if he had pleaded differently, he might have been able to prove mistake in fact or law under proviso 1, which would entitle him to have the deed rectified, and I suppose there could be no doubt now that it is open to the Court to rectify an instrument and give effect to it as rectified in the same suit or other proceeding. Therefore, Mr. Banaji applied to me for amendment.
4. It is said by him that he has already alleged all the facts on which he relies for his claim for rectification and that the point is a mere one of law. But that is not correct. Nowhere in the pleadings, as they stand, is there any averment that the deed was executed in the form which at present appears by mutual mistake of the parties, which averment would be vital to a claim to rectify the instrument. Indeed, the reply, as it stands, is rather inconsistent with any mutual mistake, for, according to the story set out in para, (5 of the reply, the plaintiff at one stage before executing the deed had his eyes open to the dangers of Clause 9 of the deed and objected to it and only executed it on an assurance by the defendant that so to speak, 'everything in the garden was lovely'. If this alleged mutual mistake had been originally pleaded, I do not, however, think that that would have been fatal to the plaintiff's claim for rectification, because I presume that it is open to a party to waive a tort if it suits him, and to treat the wrongful conduct of his opponent as if it were not wrongful. It would hardly, I think, lie in the mouth of the defendant to a suit for rectification to say 'I did not make a mistake at all: I merely played a shabby trick on you. I am not a fool, I am only a rogue.' Bat, unfortunately, the matter was not originally pleaded, and the question now is whether the plaintiff, at a rather late stage of the proceedings, should be allowed to set up a claim of rectification, by reason of mutual mistake, by an amendment. What it comes to is this: Either he .must amend his plaint or he must amend his reply. Those are the only two pleadings he has delivered. By one or the other method he might achieve the aim he wants to achieve. Let us first suppose that the proposed amendment is going to be made in the plaint. It would follow that he is setting up by his amended plaint a new case, for the first suggestion that the deed required rectification was made on Monday last, the 18th inst. Secondly, in reality he would be setting up an inconsistent ease, because to rely on a document in an altered form which you say it ought to have taken and has not, is necessarily inconsistent with relying . on that same document in the form which in fact it has; and the application, was made at a late stage, the trial having fairly far advanced and the evidence-in-chief of the defendant having concluded. I am far from suggesting that there is any hard and fast rule of law which forbids the making of air amendment, if necessary to the ends of justice, even at that late stage. But, in general, such amendments are disallowed, and if it is sought to amend the plaint, I think the principles laid down by their Lordships of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 I. A. 214 : s.c. 24 Bom. L.R. 682 are applicable; they are well known, and read as follows (pp. 216-217) :-
All rules of Court 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 yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
5. The subject-matter of the suit, as started, was a partnership on the terms of a particular deed; and the subject-matter of the suit as it would be if the amendment was allowed, would be of another and a different nature, and whatever might have been the position if an application for amendment had been made at an earlier date of the suit, (for example, when the counter-claim was first delivered), d do not think it would be right at this very late stage to allow the subject-matter of the suit to be altered by this amendment of the plaint.
6. Now, let us suppose that it is proposed, to amend the reply. One objection would be-and, in my opinion, it is a rather formidable one-that the effect of it would be to allow the plaintiff to plead a counter-claim to a counterclaim, and if such things are allowed, where are we to stop There might be counter-claims to counter-claims ad infinitum. But there is another difficulty in the plaintiff's way which remains to be stated. Suppose that the reply with the proposed amendment had been originally pleaded. The effect of the pleadings then would have been somewhat as follows:
I rely oil a deed of partnership.Written Statement and counter-claim :
Very well, under that deed you are precluded from doing non-partnership business 'and you did do non-partnership business, and therefore I counterclaim damages. Reply.
The deed I rely on requires rectification.Such a pleading by a plaintiff, it seems to me, infringes the rule against a departure in pleadings, that is to say, Order VI, Rule 7, corresponding to Order XIX,, Rule 16, of the Rules of the Supreme Court, which provides:
No pleading shall, except by way of amendment, raise any new ground of claim or contain, any allegation of fact inconsistent with the previous pleadings of the party pleading the same.' This rule is not of great general importance in this country because there is seldom more than one pleading on each side, and it is often forgotten even in England; but, still, it exists. The sort of thing it was supposed to prevent, of course, may be thus illustrated: Suppose that there is a statement of claim in which the plaintiff says, 'You injured me by negligently driving your motor car' and the defendant pleads contributory negligence. The latter says, 'it was wholly or partly your own fault, because you were not locking where you were going.' Well, the plaintiff cannot and should not be allowed to turn round and say, 'I was looking where I was going, but even if t was not, you did it on purpose.' That would be substituting deliberate injury for negligent injury, two totally different things. The following' would have been the effect of the pleadings if the proposed amendment had been originally made: Plaint :
I rely on such and such a deed.Reply:I do not rely on that deed at all, but on that deed in the form which 1 say it ought to have taken.' It is true that Order VI, Rule 7, contains an exception, but what that exception does is to allow an amendment of the previous pleading of the party in question, not to allow an amendment of his subsequent pleading to be made which would have the effect of converting that subsequent pleading into a pleading which, if originally pleaded, would have infringed Order VI, Rule 7. I am always loath to allow substantial questions of law or fact to be decided on what may appear to be technicalities, but it seems to me that in the present case if the plaintiff amends his plaint he would be changing the subject-matter of the suit, and if he amends his reply he will necessarily be guilty of a departure in a pleading, and these are the only two ways I can see by which he can achieve his object.
7. The result, therefore, is that that object, however desirable, is unattainable, and this application must therefore be refused.