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Loke Nath Mukherjee and ors. Vs. Abani Nath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal102
AppellantLoke Nath Mukherjee and ors.
RespondentAbani Nath Mukherjee and ors.
Excerpt:
- order1. the matter out of which this rule has arisen was an application made to the district judge of hooghly for amendment of a certain plaint in a certain suit filed before him. the suit in question is numbered as suit no 12 of 1931 in the court of the district judge of hooghly and it was a suit filed by the plaintiffs under section 93, civil p.c., under a sanction granted by the collector of hooghly. the suit was filed in november 1931 and after various proceedings had been had, it appears that on 17th november 1932, an application was made to the district judge for permission to amend the plaint in certain particulars mentioned in the application. the original application has now come up to this court as part of the record and it appears from the endorsement on the original.....
Judgment:
ORDER

1. The matter out of which this rule has arisen was an application made to the District Judge of Hooghly for amendment of a certain plaint in a certain suit filed before him. The suit in question is numbered as suit No 12 of 1931 in the Court of the District Judge of Hooghly and it was a suit filed by the plaintiffs Under Section 93, Civil P.C., under a sanction granted by the Collector of Hooghly. The suit was filed in November 1931 and after various proceedings had been had, it appears that on 17th November 1932, an application was made to the District Judge for permission to amend the plaint in certain particulars mentioned in the application. The original application has now come up to this Court as part of the record and it appears from the endorsement on the original application that the application for amendment of the plaint was made with the sanction of the Collector of Hooghly the latter having been authorised to give sanction by virtue of and under the authority of the Local Government. That appears, as indicated above, from the Collector's endorsement on the application itself. The position therefore is that the suit was instituted with the sanction of the Collector and the application for amendment of the plaint was made with the sanction of the Collector. Therefore as far as it appears to as on the record, there does not seem to have been any technical defect whatsoever as regards compliance with the provisions of Section 93, Civil PC.

2. The application has been rejected by 'the District Judge of Hooghly for the reasons recorded in the order which is the subject matter of complaint before us. We have carefully considered the terms of the order by which the learned District Judge rejected the application for amendment of the plaint, but it does not appear to us, having regard to the materials on record, that there were sufficient reasons for the rejection of the application for amendment. The only point that need detain us is whether, having regard to the powers of the High Court Under Section 115, Civil P.C, and Under Section 107, Government of India Act, this is a fit case for our interference with the order of the learned District Judge. No doubt the order of the District Judge was an order made in the exercise of his discretion and ordinarily the discretion of a judicial officer will not be reviewed by this Court in revision. But it is impossible to lay down a hard and fast rule that in no circumstances will the discretion exercised by a judicial officer be reviewed either Under Section 115. Civil P.C. or Under Section 107, Government of India Act, or under the combined operation of the two last mentioned sections. Each case must depend upon its own facts; and, subject to any question of costs, applications of this nature, that is to say, applications for amendment of plaints where trial has begun have got to be considered very carefully. They have to be considered very carefully because it is essential that the rights of either party should not be prejudiced. In this case it appears that the trial has not begun. The application for amendment of the plaint was made before the issues were settled. No doubt the issues were settled shortly after the data when the application was filed But, at any rate, the fact remains that the trial has not begun; and, if any inconvenience or prejudice is caused to the defendants by granting the present application for amendment of the plaint, the defendants can well be compensated in costs. But that question has not been gone into and we need not pursue the matter further at this stage.

3. As indicated above, the real question is whether in the circumstances of this case the amendments should be allowed. In our opinion, the amendments should have been allowed and our reasons are these: The plaintiffs are suing as members of the public; they have obtained the requisite sanction under the statute and they are alleging breaches of trust on the part of the defendants. They have brought forward an application for amendment of the plaint with the necessary sanction under the statute and the matter has got to be considered from this point of view whether on the allegations made in the plaint and in the application the plaintiffs have made out a sufficient case for the amendments being allowed or not. If the amendments are allowed it may necessitate a further written statement on behalf of the defendants. We are minded not to say anything one way or the other and we must leave the matter entirely to the learned District Judge. But it does appear to us that having regard to the stage of the hearing of the suit reached when the application for amendment of the plaint was brought on, the defendants, if any inconvenience or prejudice can be established to the satisfaction of the District Judge, would be entitled to apply to the District Judge for payment of costs either incurred needlessly or thrown away by reason of the amendments being allowed for the present moment. But subject to that consideration it appears to us that this is a case where the amendments should have been allowed.

4. It is said that there is another suit pending in which the same reliefs are asked for, namely, suit No. 69 of 1931. We are assured by learned counsel on behalf of the opposite party that the reliefs sought for in that suit are precisely the same as the reliefs sought for in this suit. That may or may not be so; but one cannot overlook the fact that this is a suit by certain members of the public on behalf of the public. It is a suit which is allowed under the law and because another suit is pending in which the reliefs sought for are nearly the same or identically the same as the reliefs asked for in the present suit, that by itself would not be any justification whatsoever for the disallowance of the present application for amendment of the plaint. No doubt the opposite party is entitled to point out that to us for the purpose of showing that this was an unnecessary suit or a mala fide suit; but while they are entitled to bring that to our notice we are not satisfied on the materials before us that that fact in itself concludes the matter and that the present application for amendment of the plaint should be disallowed on that ground. We think, on the whole, subject to any question of costs being determined by the learned District Judge when the matter goes back to him that the application for amendment of the plaint should have been allowed and we accordingly make the rule absolute. We make the order under the combined operation of Section 107, Government of India Act and Section 115. Civil PC. The costs of this rule (the hearing fee being assessed at five gold mohurs) will be treated as costs in the suit.


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