D.K. Kapnr, J.
(1) The present revision petition is directed against an order passed by the Sub-ordinate Judge refusing an amendment in the plaint. The addition to the plaint which the plaintiffs have prayed for is set out in paragraph No. 4 of the order under revision ; it merely states that the plaintiffs want to say that 'the defendant proves that the property is trust property it will not impair the right of the plaintiffs as they are transferees in good faith for consideration.
(2) The suit is for recovery of rent and it appears that the plaintiffs are purchaser of the property which is alleged to be trust property and hence it appears that the defendants have denied the rights of the plaintiffs to claim rent of the property.The question to be asked at this stage is whether the court is right in refusing an amendment. One of the reason for which the amendment in the plaint has been disallowed is that the evidence has been closed and no further plea should be allowed. The other ground is that in case the plaintiffs prove their title they would succeed in getting a decree in the present suit.
(3) It is settled law that even if the amendment in the pleading is sought at a late stage it should be allowed if the party can be compensated by way of costs. However, negligent or delayed the amendment may be, if the other side has not prejudiced its position, an amendment should be allowed. The reason for this rule is that often parties make a mistake in the matter of pleading and they should not be unnecessarily penalised for the failure to make correct pleading in the first place. (See L.J. Leach & Co. Ltd. and another v. M/s. Jardine Skinner and Co and Pirgonda Hongonda Patil v. Kalgonda Shidgonda. In the former case the amendment was allowed in the Supreme Court itself which was the last stage. In the latter case the principle that the an amendment should be allowed if the parties can be compensated for by costs has been stated. This rule is also to be found in many reported English and Indian cases and has been universally applied. I do not think that any prejudice has been caused to the defendant so far on account of the failure of the plaintiffs to plead that they are transferees in good faith without notice I am even doubtful whether their being transferees in good faith makes any difference in the present case to their rights but it may have some effect at a later stage of the proceedings. I would not like to say that the plea is not to be allowed.
(4) I am of the view that the plea as claimed should be allowed to be raised. I am at this stage referring to Order 6 Rule 17 of the Code of Civil Procedure where it says that all amendment shall be made as may be necessary for determining the real question in controversy between the parties. The real question in controversy in this case whether the plaintiffs are entitled to recover rent from the defendant. They may be able to recover this rent because they are transferees of the title of the previous owner. If there is any flaw in this title it may be met by this plea that they are transferees in good faith. In this connection, a reference is necessary to section 96 of the Indian Trust Act, 1885 which reads :-
'Nothing contained in this Chapter shall impair the rights of transferees in good faith for consideration, or create an obligation in evasion of any law for the time being in force.'
(5) This section may come to the assistance of the plaintiffs for raising of the plea sought to be raised. For this reason I think the amendment should have been allowed. I say no more about the merits nor do I discuss the same so as not to prejudice the respective rights and claim of the parties. The parties to bear their own costs in this court. I am told as there are two consolidated suits I should make it clear that the costs of Rs. 25.00 are to be paid in each separate suit i.e. Rs. 50.00 in all.