1. This is an application in revision by the plaintiff against an order of the Civil Judge at Jaipur, dated 27-12-1948, rejecting his application for amendment of his plains in part.
2. The learned Advocate for the opposite party has raised a preliminary objection that the present petition is beyond the scope of Section 115, Civil P. C., and the revision therefore does not lie. In support of his argument, he has referred to Mt. Suraj Pali v. Ariya Pretinidhi Sabha, A. I. R. (23) 1936 ALL 686 :(I L R (1937) ALL 17 F b), Dhaja Rai v. Emperor, A I. R. (35) 1948 ALL 241 : (49 Cr. L. J. 287) and Venkatagiri Aiyangar v. H. R E. B. Madras, A. I. R. (36) 1949 P. C. 156 : (76 I. A. 67). The view of the Allahabad High Court and the observations made by their Lordships of the Privy Council in Venkatagiri Ayyangar v. H. R. E. B. Madras, A.I.R. (36) 1949 P. C. 166: (78 I. A. 67), recently came into discussion in a case Gambhirmal v. Gyanchand, A. I. R. (37) 1950 Raj 20. It was a case in which the trial Court had allowed amendment of the plaint, and the matter had come before the Rajas than High Court in revision. It was therein observed by my learned brother Bapna J. that it was not necessary to construe Section 115 in the restricted sense according to the view prevailing in Allahabad. The revision application was allowed in that Court since it was found that the Court below had committed a material irregularity in the exercise of its jurisdiction in allowing an amendment which purported to substitute an entire new cause of action. The view adopted in this case has been subsequently approved by a Division Bench of this High Court in another case reported in Niranjan Nath v. Sardarmal, A. I. R. (37) 1950 Raj. 31, where it was held that the word 'case' in Section 115, Civil P. C. should be construed to include the decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. Therefore, a decision of a lower Court allowing or refusing to allow a substantial amendment of the pleadings is a 'ease decided,' and if it is found that the said Court has committed a gross mistake in allowing or refusing to allow an amendment it is a material irregularity made in the exercise of its jurisdiction and a revision application would lie under Section 115, Civil P. C. This view is supported by recent decisions of the other High Courts as well reported in Narayan v. Seshrao, A.I.R, (3a) 1948 Nag. 258. (ILR 1948 Nag. 16 F.B.); Province of Madras v. R.B. Poddart Firm, A.I.R. (36) 1949 Mad. 214 : (1948-2 M.L.J. 423). Chandra Kishore v. Babulal, A.I.R. (36) 1949 Orissa 77 : (I.L.R. (1949) 1 Cut. 105) and Ram Swarup v. Mt. Nasibi, A.I.R. (37) 1950 Ajmer 32. This objection is, therefore, disallowed.
3. Coming to the case itself the applicant has brought a suit for Rs. 1702-9-0 against the opposite party. It was averred by him in the plaint that he was a trading member and the defendant was a certified Dalai of the Bullion Association, Jaipur, that the Dalals were orally directed not to enter into their own personal transactions, still some Dalals did use to make such transactions in Benami, that the defendant had similarly made Benami transactions with the plaintiff between 12-6-1946, and 21-7-1946. that for the losses incurred by the defendant and interest thereon he owed to him the said amount and therefore it should be decreed. This suit was instituted on 31-5-1948. The dafendant filed his written statement on 14-9-1948. On 15-10-1943 the plaintiff presented an application seeking certain amendments in paras. 1, 6, 7 and 9 of his plaint. The trial Court allowed the amendments in respect of paras. 1 and 9 while it rejected the amendment sought in paras. 6 and 7. The purport of the amendment which has been disallowed is that the plaintiff now wants to say that the transactions stated above were not Benami, and that the interest claimed by him was baaed on their mutual contract, The learned Civil Judge, Jaipur, says that if the amendment is allowed, it will change the character of the suit and raise a new cause of action and therefore he has dismissed the application to that extent. The applicant's advocate contends that he has already filed copies of his account books, and that he only wants to explain the real nature of the transactions and does not mean to change the character of the suit or raise a new cause of action. This argument seems to be correct in substance. It appears that the amendment sought by the plaintiff regarding the relationship of the par. ties in transacting the present business has become necessary in view of the written statement filed by the defendant. In paras 1 and 6 of the written statement, it is admitted by the defendant that the plaintiff was a trading member of the Bullion Association, Jaipur, and that he (defendant) himself was its certified Dalal, that in his capacity as a Dalai he had transacted some business, but he made no Benami transaction in the plaintiff's Arhat. Since the defendant has denied the Benami; nature of the transactions on which the plaintiff had based his original suit, the plaintiff now wants to make an amendment accordingly. In my opinion, this does not change the character of the suit, nor does it raise an entirely new cause of action. What the plaintiff means is that the defendant is bound to reimburse him for the loss of these transactions even though they were not benami and made by him as a Dalai. The amendment sought by the plaintiff is in conformity with the defendant's own written statement. Order 6, Rule 17, Civil P. C., clearly lays down that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The real point for controversy between the parties is whether the defendant is responsible to pay to the plaintiff the amount claimed by him in respect of the alleged transactions and to my mind, therefore, the trial Judge should not have refused to allow it. To this extent, it has committed a material irregularity in the exercise of his jurisdiction and therefore the application is fit to be allowed.
4. As regards the question of interest, I think the application cannot be allowed because in the plaint it was clearly written by the applicant that he claimed interest on the basis of custom prevailing in the market. Now he wants to say that he is entitled to get this interest on the basis of their mutual contract. This is an entirely new ground inconsistent with the previous one and is, therefore, fit only to be rejected.
5. The application is allowed and rejected in part as mentioned above. Parties will bear their own costs