1. The petitioner is plaintiff in O.S. No. 129 of 1922 Madura Sub-Court. He sued to set aside a sale-deed alleging inter alia that 2nd defendant took advantage of his youth.
The plaintiff has just attained his majority and the defendants have in collusion cheated him.
2. After filing this plaint, he had reason to believe that he was a minor at the time of the sale, and applied for leave to amend his plaint accordingly.
3. Leave has been refused by the Additional Subordinate Judge in the order appealed against, dated 11th April, 1923, on the grounds that the application was not bona fide and that amendment could not be allowed under Order 6, Rule 17 of the Code of Civil Procedure, 1908. There was two months' delay between plaintiff's learning his age and making this application, but I do not think that this interval suggests want of good faith.
4. The real question is, whether the amendment is such a variation of the original cause of action as to preclude a permission to amend under Order 6, Rule 17 of the Code of Civil Procedure. The terms of the rule are very wide and permit the Court to allow a party to amend his pleadings in such manner and on such terms as may be just. It is well recognised as unjust if the defendant is confronted by way of amendment with contentions foreign to the other contentions in the plaint : Venkatarama Rao v. Venkatalingama A.I.R. 1922 Mad. 49. But in the present case a plea of a minority can scarcely be said to be foreign to the plea of the plaintiff being unable to defend his interests because 'he has just attained majority.' No doubt the new plea is much stronger (if established) but that is not the point. There is no objection to amendments which justly develop the original cause of action so long as they do not vary it, and there is little variation between 'they imposed on me because I was just out of my minority,' and 'they imposed on me because I was a minor.'
5. It so happens that a minor is presumed, so to speak, to be imposed upon from the bare fact of his minority and if plaintiff proves the fact, there will be no need to go into the specific allegation of fraud. But nevertheless the essential character of the plea that plaintiff was led into this sale owing to this youth remains unaltered.
6. I may remark that if this amendment is refused, plaintiff can still obtain leave to withdraw his suit and bring a fresh one on the plea of minority; so the defendants are not much affected by this decision.
7. The ruling quoted by the learned Subordinate Judge Ma Shwe Mya v. Maung Mo Hnaung A.I.R. 1922 P.C. 249 hardly seems upon all fours with the present case. There a contract of 1912 was set up and negatived, and the Court was held to have acted irregularly in permitting the plaintiff to set up another contract of 1903. But in that very ruling it is laid down that 'full powers of amendment must be enjoyed and should always be liberally exercised,' p. 835.
8. It is also argued that the Court committed no material irregularity. But I think a refusal to exercise its lawful power so as to deprive the plaintiff of what appears to be a vital plea amounts to material irregularity, and I certainly find no proof that the petition to amend was mala fide.
9. Accordingly I allow the revision petition and order the lower Court to permit plaintiff to amend his plaint as prayed. The counter-petitioners may have their costs, one set.