1. This is a plaintiff's appeal arising out of a suit for pre-emption. In the plaint the plaintiff alleged that he was a co-sharer and was joint in the property transferred with the vendor and that he claimed pre-emption. He also stated:
The plaintiff has a right of pre-emption according to the Act in force.
2. He nowhere alleged that the defendants were strangers to the mahal, nor did he in express terms say that he had a preferential right as against the defendants, though this might be implied from the fact that he was suing to pre-empt them. When the written statement was filed, no plea was taken that the plaint did not disclose any cause of action. Later it was noticed that the plaint was silent as regards the exact status of the defendants. The plaintiff then applied to the Court of first instance for an amendment of the plaint in order to make it clear that the defendants were perfect strangers and the plaintiff had a preferential right as against them. The learned Munsif thought that, he had no jurisdiction to grant this application because the provisions, of Order 7, Rule 11 were mandatory and no leave to amend the plaint could under the circumstances be granted. He relied on the case of the Midnapore Zamindrai Co, Ltd. v. Secy. of State  44 Cal. 352.
3. He dismissed the application for amendment and rejected the plaint as it disclosed no cause of action. The plaintiff went up in appeal to the District Judge and urged that the plaint did disclose a sufficient cause of action and that in any event the amendment should have been allowed. The learned District Judge is of the same opinion as the first Court and has held that the principle of the Calcutta ruling applied and that the Munsif had no other course open to him but to reject the plaint.
4. There is no doubt that the plaint was not clear and it may be assumed that the Courts below were right in thinking that it contained no clear allegation which would show that the plaintiff had a preferential right as against the defendants, but the plaintiff wanted to cure this defect by getting his plaint amended. His application for amendment has not been considered on its merits but has been dismissed on the sole ground that the Courts below had no jurisdiction to entertain it because the provisions of Order 7, Rule 11 were imperative and left no choice.
5. There can be no doubt a second appeal lies because under Section 2(2), Civil P.C., the order rejecting a plaint was a decree.
6. It is not necessary to consider the Calcutta case referred to above as the facts are different, inasmuch as in that case the plaint was rejected on the ground that the plaintiff on having been required to supply the requisite stamp paper within the time fixed had failed to do so and also because the prayer to amend the plaint by striking out the paragraph was apparently made only in the High Court.
7. It seems to us that the Courts below had jurisdiction to entertain the application for amendment.O. 6, Rule 17 gives ample power to the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as it may seem just. There can be no doubt that on the pleadings both the parties had understood what the plaintiff wanted to establish, and if there was any ambiguity he might well have been allowed to cure it on payment of costs. The plaint when filed was not rejected in the first place, but was actually admitted presumably on the ground that it did disclose a cause of action. Summonses were issued to the defendants and were duly served, and they had actually filed a written statement without raising the point that the plaint disclosed no cause of action. We therefore think that this was a fit case in which the application for amendment should have been allowed.
8. We accordingly allow the appeal and setting aside the orders of the Courts below send the case back to the Court of first Instance through the lower appellate Court with directions to restore it to its original number on the file, and after allowing the amendment on such terms as it thinks fit to proceed to try it in the ordinary course. We direct that the plaintiff should have his costs in this Court and in the lower appellate Court from the defendants who should bear their own costs in those Courts. The costs of the first Court will abide the result.