1. Raja Kumud Narain Bhup was the owner of the zamindary known as Bijni Raj. He died on 9th March 1883 leaving two widows Rani Siddeswari and Rani Abheyeswari. Rani Siddeswari died in 1891. The petitioner in Rules 174 and 175, Raja Jogendra Narain Bhup who was born on 23rd July 1884 was nominated Raja of Bijni Raj by Rani Abheyeswari on 28th September 1895. Raja Jogendra Narain attained majority on 23rd July 1902. Rani Abheyeswari made a will on 30th August 1918 whereby she dealt with Bijni Raj as her own property and appointed opposite party No. 1 in the above Rules as the executor of her will. On 22nd September 1919 Bhairabendra Narain Deb, the petitioner in Rule 209, instituted a suit for recovery of possession of the Bijni Raj against Raja Jogendra Narain on the allegation that the latter became insane when he was 15 or 16 years old. On 17th June 1920 Raja Jogendra filed a written statement in that suit alleging inter alia that he was not insane till 1904. The opposite party in these Rules was impleaded as a defendant in this suit. His defence was that Rani Abheyeswari acquired title to Bijni Raj by adverse possession for more than 12 years. He however did not say anything about the insanity of Raja Jogendra in his written statement. In August 1920 one Samarendra filed another suit at Goalpara which was subsequently transferred to the Court of the Subordinate Judge at Alipore against Raja Jogendra alleging that the latter was insane from his boyhood and was therefore disqualified from succession. Raja Jogendra filed his written statement in this suit in June 1921 alleging that up till 1904 he was not insane.
2. When both the suits were pending the opposite party No. 1 in these Rules filed a suit in May 1930 for declaration of his title to the Bijni Raj as executor to the estate of late Rani Abheyeswari. On 25th October 1930, Samarendra's suit was dismissed on contest. On that day a petition of compromise was also filed in that suit as well as in the suit instituted by Bhairabendra. The result of this compromise was that Raja Jogendra became the owner of the Bijni Raj for life and Bhairabendra was declared to be the owner of the Raj after the death of Raja Jogendra. On that day Purnendra Narain who claims to be a member of the Bijni Raj family filed a suit against Raja Jogendra and others making substantially the same allegations as Bhairabendra and Samarendra did in their suits: Raja Jogendra also filed a suit on 25th October 1930, against the opposite party No. 1 in these Rules for recovery of possession of 55 Ballygunj Circular Road which apparently was not in his possession at the time. Raja Jogendra filed his written statement in February 1931 in the suit which was instituted by the executor to the estate of late Rani Abheyeswari in May 1930. In March 1931 Raja Jogendra filed his written statement in the suit which was started by Purnendra on 25th October 1930. In these written statements Raja Jogendra's defence was the same as in the suits of Bhairabendra and Samarendra. In May 1931 the Bijni Succession Act was passed by which Raja Jogendra was declared to be the proprietor of the Bijni Raj and it was declared by that Act that Bhairabendra would become the owner of the Raj after the death of Raja Jogendra. Additional written statements were filed by Raja Jogendra in the suits pending against him on the basis of this Act. In 1933 certain preliminary issues regarding the effect of this Act on the pending litigation regarding the Bijni Raj were tried and the suit instituted by the executor to the estate of the late Rani Abheyeswari in May 1930 was dismissed by the learned Subordinate Judge. An appeal was taken to this Court by the opposite party and in March 1936 the decree of the learned Subordinate Judge dismissing the suit was set aside and the case was remanded to the lower Court for further hearing.
3. On 17th November 1936 Raja Jogendra made two applications before the learned Subordinate Judge, one for amendment of his written statement in the suit of the executor and the other for the amendment of the plaint in the suit raised by him for recovery of possession of the Ballygunj property. Bhairabendra the petitioner in Rule 209 also made a similar application for amending his written statement in the suit instituted by the executor. In these petitions the petitioners alleged that Raja Jogendra became insane before he attained majority in the year 1902, evidently with the object of meeting the plea of adverse possession taken by the executor to the Estate of late Rani Abheyswari. These applications were opposed by the executor on the ground of delay and want of bona fides. The learned Subordinate Judge was of opinion that there was no delay as no evidence has yet been taken in the suits. As regards the question of bona fides the learned Subordinate Judge pointed out that in the previous suits the defence of Raja Jogendra was that he was quite healthy up till 1904 and that on such defence he got a decision in his favour in the suit brought against him by Samarendra, and then observed:
In this case however not a scrap of paper has been placed before me to establish a prima facie case that on or before 23rd July 1902 the Raja was insane. Dr. Basak arguing the case for the Raja has contended that Ex. Z 64 in Suit No. 51 would show that the Court found in that case on the basis of that document dated 18th March 1903 that on that date at least the Raja was inflicted already with insanity and that being only eight months after the date of attainment of majority, this amendment would be allowed to enable the Raja to adduce evidence that at the date of attainment of majority also be was already an insane. I am unable to accept this contention unless any document is produced showing on the face of it that the Raja was insane on 23rd July 1902.
4. In this view of the matter the learned Subordinate Judge rejected the application for amendment. The present Rules Nos. 174 and 175 were thereupon obtained by Raja Jogendra and Rule 209 was obtained by Bhairabendra. It is true that in the previous litigations the case of Raja Jogendra was that he was not insane up to 1904; but at the time when this case was put forward he was admittedly insane, and his estate was in charge of the Court of Wards. The case which was then made on his behalf by the Manager of the Court of Wards was made on the materials placed before the Manager at the time. The allegation in the petitions for amendment is that some important evidence showing that the Raja was insane before he attained majority has recently been discovered and that to prevent multiplicity of suits, to get at the real rights of the parties and to have them adjudicated finally in the suits the amendment should be allowed. The learned Subordinate Judge was of opinion that the amendment could not be allowed unless documentary evidence was produced to show that the Raja became insane before he attained majority. In other words he was of opinion that before amendment could be allowed documentary evidence in proof of the matter sought to be introduced by amendment must be given by the party seeking amendment. The amendment of pleadings is no doubt in the discretion of the Court. But that discretion must be exercised on judicial principles. While exercising this discretion the following observations of Lord Buckmaster must be borne in mind:
All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by any means of amendment, the subject matter of the suit.
5. See the case in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P C 249 at pp. 216 and 217. Again
however negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side: per Lopes, L.J. in Weldon v. Neal (1887) 19 Q B D 394 at p. 396.
6. In the present case the petitioners by their amendment do not propose to substitute one cause of action for another or to change the subject matter of the suit. They simply want to add another ground of exemption from limitation. Mr. Bose appearing on behalf of the opposite party contends that if the amendment be allowed the opposite party will be seriously prejudiced. His contention is that a large number of documents which were filed and exhibited on behalf of Raja Jogendra in the suit of Samarendra to show that Raja Jogendra was not insane till 1904 and on the basis of which the Court came to the conclusion that he was not insane till March 1903 are not now on the record of that suit and it would be very difficult for the opposite party to have these documents produced in these suits. The obvious answer to this contention of Mr. Bose is that his clients' position is the same as it was when the original written statement was filed in February 1931. The suit in which those documents were filed was dismissed on 25th October 1930. There are no materials before us to indicate that all those documents were on the record of that suit at the time when Raja Jogendra filed his written statement in the present suit. Further the opposite party was not a party in that suit. There are also no materials before us to indicate that if an attempt be made now in the present suit by the opposite party to have those documents produced in Court, there is no reasonable chance of those documents being produced in Court.
7. Under these circumstances we are of opinion that the learned Judge acted with material irregularity and was wrong in refusing the amendment prayed for by the petitioners. The result therefore is that these Rules are made absolute, the order of the learned Subordinate Judge rejecting the petitioners' applications for amendment which were filed before him on 17th November 1936 are set aside. The applications for amendment are allowed. The learned Subordinate Judge is directed to amend the pleadings in accordance with the amendments proposed by the petitioners. In view of the facts and circumstances we are of opinion that Raja Jogendra must pay ten gold mohurs as costs to the opposite party and he will bear his own costs in this Court in Rr. 174 and 175 as well as in the lower Court so far as the applications for amendment are concerned. The petitioner Bhairabendra will bear his own costs in this Court in Rule 209 as well as in the lower Court.