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Bhagirathi Shuku Vs. Chandra Harihar Patak and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All81; 66Ind.Cas.208
AppellantBhagirathi Shuku
RespondentChandra Harihar Patak and ors.
Cases Referred and Muhammad Sadiq v. Abdul Mojid
Excerpt:
plaint, misdescription of property in - amendment effect of--cause of action, whether affected. - - the mortgage in suit was filed along with the plaint and showed quite clearly what the property really mortgaged was......but by a misdescription in the plaint he put the share hypothecated as being situated in the village jogia, although, it was really situated in the village udaipur. the defendants are the mortgagors and his descendants. the mortgagor did not defend the claim but his descendants raided the usual pleas that the bond was without consideration and was executed without any legal necessity. they also contested the factum of execution by the mortgagor. the suit was dismissed by the trial court on the finding that no legal necessity for the transfer had been made out. on appeal, however, a fresh complication arose. after the plaintiff appellant's argument was heard the case was adjourned at the respondents instance for a few days. in the meanwhile, it was discovered that, although the.....
Judgment:

1. In our opinion this appeal must succeed. The plaintiff appellant brought the suit on the basis of a mortgage, but by a misdescription in the plaint he put the share hypothecated as being situated in the village Jogia, although, it was really situated in the village Udaipur. The defendants are the mortgagors and his descendants. The mortgagor did not defend the claim but his descendants raided the usual pleas that the bond was without consideration and was executed without any legal necessity. They also contested the factum of execution by the mortgagor. The suit was dismissed by the Trial Court on the finding that no legal necessity for the transfer had been made out. On appeal, however, a fresh complication arose. After the plaintiff appellant's argument was heard the case was adjourned at the respondents instance for a few days. In the meanwhile, it was discovered that, although the property which was really mortgaged was situated in Udaipur, the plaintiff in fact described it as being situated in Jogia. What really happened was that the money borrowed under the hypothecation bond in suit was for tie purpose of purchasing a certain share in Jogia for the benefit of the joint family, and perhaps that is how the confusion arose. Anyhow, the plaintiff applied to the lower Appellate Court for amendment by substituting the name of the correct village in place of the wrong one. The learned Judge, relying on the eases of Balkaran Upadhya v. Gaya Din Kalwar 24 Ind. Cas. 225 : 12 A. L. J. 635 : 36 A. 370, and Muhammad Sadiq v. Abdul Mojid 10 Ind. Cas. 476 : 8 A. L. J. 666 : 33 A. 616, has disallowed the application and has dismissed the appeal. We think the Judge of the Court below was not justified in disallowing the application for amendment. Amendments of clerical mistakes have been allowed even in second appeals and this was eminently a case in which the plaintiff should not have been punished by dismissal of his suit simply because the Pleader's clerk who wrote the plaint had committed a clerical error. The mortgage in suit was filed along with the plaint and showed quite clearly what the property really mortgaged was. Under these circumstances, the amendment prayed for should have been allowed. This amendment would be in non way altering the cause of action of the plaintiff. The cause of action was the non payment of the mortgage and the mere fact that a misdescription of the property crept into the plaint does not alter the cause of action. We think the Court below was wrong in thinking that it had no power to allow the amendment. We allow the application for amendment of the plaint, dated the 5th of February 1920, We allow the appeal, set aside the decrees of the Courts below and remand the case to the Court of first instance through the lower Appellate Court, with directions to restore it to its original number and try and dispose of it according to law. The defendants respondents will be entitled to their costs of this litigation up to date and the appellant will pay his own costs of this appeal. The remaining coats incurred by the appellant will be costs in the cause.


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