1. Plaintiffs 2 and 3 are the petitioners in this revision. The respondents are the defendants in the suit. The matter arises out of a suit for partition. A preliminary decree was passed an 11-8-1978, Final decree application was filed and pursuant to orders thereon, the Commissioner visited the properties for effecting division. According to the plaintiffs it was at that time they noticed the omission to include a well in one of the survey numbers as available for division. This obliged them to file an application for amendment of the plaint under 0. 6, R. 17 C. P. C_ hereinafter referred to as the code to include the said well. The Court below has dismissed this application and this revision is directed against the order of the court below.
2. Mr. P. Sadasivam learned counsel for the Petitioner submits that the court below ought not have discountenanced the plea for amendment of the plaint, the suit being one for Partition and the court below erred in not accepting the explanation offered by the plaintiffs for non-inclusion of the well in the suit properties earlier. Learned counsel would further submit that the court below erred also in adjudicating upon the merits of the amendment and has practically given a decision on the question of title to the well and has upheld the title claimed by the sixth defendant over the said well. According to the learned- counsel, this is not in order and the Court below, while deciding an application for amendment~ ought not to have- adjudicated upon the merits of the amendment.
3. On going through the fair order of the court below as well as keeping in mind the principles governing amendments. I am obliged to sustain the submissions made by the learned counsel for the petitioners. The court below has declined to accept the explanation offered by the plaintiffs for non-inclusion of the well earlier in the suit items, pointing out certain commissions and omissions which according to the court below would disentitle them from seeking the amendment at this stage. I am not able to appreciate and accept this reasoning of the court below If in fact the plaintiffs were aware of the existence of the well in the concerned survey number it would be highly improbable that they would have consciously and wilfully omitted to include the same in the suit items. 'Negligence or, carelessness.' or belatedness need not be Put against a party seeking amendment if the facts and. circumstances of the case warrant the allowing of the amendment for the purpose of adjudicating the contoversy between the Parties comprehensively in the same lis. The explanation offered appears to be a Plausible one and deserves acceptance. The rules of procedure are nothing but hand maids of substantive law and justice and the intention must be to dispense justice in. the real sense and pure technicalities at the level of procedure shall not stand in the, way of courts to recognize rights of Parties. which they are otherwise entitled to. It is true, there are limitations on the wide powers of the, court, to amend the Pleadings but, I do not find that any such limitation comes into, play on the facts of the present case.
4. The Court below has also, as submitted by the learned counsel for the petitioners, adjudicated upon the merits with regard to the amendment sought for. It has investigated the tenability or otherwise of the case which would arise on amendment without even allowing the amendment and it has opined that the sixth defendant must be, the owner of the well exclusively. It is well settled that while deciding an application for amendment the court is not supposed to go into the merits and demerits of the amendment and express an opinion one Way or the other. That could be the subject matter of scrutiny after the amendment is allowed. applying the well accepted principles therefore, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the parties placed the requisite I evidence therefore and submitted argument in support of their respective cases.
5. In Krishna Rao v. Sri Gangades-warar temple, AIR 1949 Mad 433. Pan-: chapakesa Ayyar J. discountenanced the court giving its findings on the allegations in the intended amendment without first allowing the amendment, framing an issue thereon and allowing the parties to adduce the relevant oral and documentary evidence. The very same learned Judge, in Dharmalinga v. A.Krishnaswami. AIR 1949 Mad. 467 observed that the alleged facility of the case in the intended amendment need not and should not be gone -into at the stage of considering the application for amendment.
6. In Mangal Dass v. Union of India, J, , T. V. R.
Tatachari, has followed the dictum of Panchapakesa Ayyar J. in the above decision and set aside the order passed by the court below when it decided the merits of the intended amendment on the ground the said order was clearly vitiated by material irregularity. in the exercise of jurisdiction.
7. Under order 6 Rule 17 of the Code the court may at any stage of the proceedings allow either party to amend his pleadings and all such amendments shall be made as may be necessary, for the purp6ses of determining the real questions in controversy between the parties. In a suit for partition. the quantum of the estate is a question in issue and .if there had been inadvertence or omission to include a particular item, the court is duty - bound to allow , the amendment and While doing so, it will be inappropriate to adjudicate upon the questions which . would arise on the, amendment being allowed and that stage will come only later after the amendment is allowed-issues are framed and the parties placed their, evidence and made their submissions through arguments. If these principles are kept in mind. I am not able to spell out a support for the order of the, court below.
8. S. Mr. N; Sivamani, learned counsel for the contesting respondent, submits that practically the plaintiffs were parties to the process. adopted by the court below -and they placed evidence in. support of their case and., coveted a decision thereon and hence, they are estopped from putting forth the present contention before this court. In my view this cannot be put as an estopped against he plaintiffs the petitioners herein since certain well recognised Principles require adherence and there could be no by passing of the same, and that would not be conducive to public interest. Even otherwise it is not possible to guage at this stage as to which of the parties persuaded the court below to go into the merits of the Intended amendment .it is perfectly Possible to Put forth a submission that the court below, of its own, chose to go into the merits of the intended amendment and thus the parties had no other alternative but to fall inline with this process adopted by the court. Hence. it will not be proper invoke any theory of estopped on the facts and circumstances of this case.
9. The principles being what they are constrain me to interfere in revision. Accordingly, this revision is allowed and the amendment sought for will stand allowed. The Court below will permit the plaintiffs to carry out the amendment, Permit the defendant or 'defendants concerned to file additional written statement: formulate the requisite additional issue or Issues arising there from: try -the-same and adjudicate the matter. As permits Decree and. amend the preliminary- decree, it that is necessitated by is orders. The court below will, obviously investigate the matter without reference to any of its observations in its fair order, which has been set, aside.
10. The Court below will do well to prosecute the further steps in the suit pursuant to the amendment expeditiously, the suit being of the year 1976.
11. Revision allowed.