John Woodroffe, J.
1. The respondents instituted this suit on the 9th December 19l6 against the defendants for recovery of money due to them by the first defendant on the mortgage; of the 1st April 1915, There were a previous mortgage and a further charge, dated 7th January 1914 and 11th December 1914, executed by the same defendant. But these Were not included in the suit. On the 26th February 1917, the plaintiffs gave notice at an application for amendment of the plaint. The affidavit, which is verified by the plaintiffs' attorney, states that they did not include their claims under the previous mortgage and charge under the bona fide and erroneous impression that this Court had no jurisdiction to entertain any suit in respect of the mortgage and charge as they comprised properties outside the local limits of our jurisdiction. They say they overlooked one of the provisions of the mortgage of the 1st April 1915. It is said that the defendant, taking advantage of the omission to include these previous claims, filed a suit in the Court of the Subordinate Judge at Pabna, praying for a declaration that the mortgage-debts secured by the previous mortgage and charge were unenforcible. The ground there taken is that no leave was obtained under Order II, Rule 2, of the Civil Procedure Code; that the defendant in that suit intentionally omitted to sue in respect of these sums of Rs. 1,50,000 and Rs. 90,000, and that the plaintiff in that suit was entitled to a declaration that the defendant's mortgage lien for these two sums was unenforceable in law.
2. The plaintiffs' application for amendment in this suit is supported by an affidavit verified by their attorney, Mr. P.C. Kar. On the other hand, there is an affidavit of Kedarnath Sirkar, a gomaskta and law agent of the defendant. He alleges that the prior mortgage and charge were not included designedly and with dishonest motives and riot under error as alleged. His affidavit is supported by his master. These allegations are denied in the affidavit of Rai Bahadur Janaki Nath Roy, who explains how these claims were omitted.
3. The matter came before Chitty, J., who thought it was not possible or convenient to decide the issue of fact raised at that stage. He, however, without deciding anything, made the amendment subject to any contention which the several defendants might raise in answer to the claim as amended. The learned Judge said that he did not see how the defendants would be prejudiced by the amendment being allowed instead of having a lengthy enquiry and a practical decision of the suit in a chamber application. I think it would have been better and more regular that the question of the right to amendment should have been determined before the order was made, or, if this would have involved a lengthy enquiry covering the same ground as the evidence in the suit, that the hearing of the application to amend should' have been adjourned to the hearing of the suit and determined on the evidence then taken. Objection has accordingly been taken by Mr. Jackson for the appellant on the ground that an order should not have been made without first determining the plaintiffs' right to it. How, he asks, can the Court make an order for amendment subject to the right of the party to object that it ought to have been allowed? The respondents' Counsel also states that he was desirous of and asked the Court to hear the application on the facts. In support, however, of the course which the learned Judge took, it must be noted that the Court minutes show that Mr. Chakravarti, who appeared for the appellant in the lower Court, said that as long as his rights were safeguarded and it was understood that his contention was that the Omission to sue was not a mistake but was done advisedly, he had no objection.
4. The matter is, however, not of importance, as I have come to the conclusion on the facts that the order made was justified.
5. It has been objected in the first instance that nb appeal lies. No case has been cited in support of the appeal. Ordinarily an order granting or refusing amendment would not be a 'judgment.' Such an order does not determine the rights of the parties but only a matter of procedure, namely, whether a right may be put forward for determination. Here the Court has held that it may. If the Court were wrong, the order would be subject to appeal in the appeal against the final decree. But here the question is complicated by the fact of the Pabna suit. It is contended for the appellant that the order made does not reserve the alleged right of the appellant in that Pabna suit and that the rights of the appellant in that suit are affected, and, to use the words of Counsel, 'his basis in the Pabna suit is gone.' It is argued that when that suit was instituted, the respondents had not included their previous mortgage and charge in the plaint in this Court and that if the matters had continued as they originally were, the appellant would have got the declaration he sought. These chances of success, it is said, are now spoiled because the respondents have been allowed to amend in this Court so as to include claims, the omission of which was made the basis of the Pabna suit. It is also suggested that the hearing of the Pabna suit might be affected. This is not possible because the Pabna shit Was instituted before the amendment, and if there were any difficulty in the two suits being concurrently heard (on the assumption that they covered the same ground), it would be the Calcutta suit as amended, and not the Pabna suit, which might be affected. As regards the other point it has more ingenuity than substance. It proceeds on the erroneous assumption that the amendment was prohibited by Order II, Rule 2,. This rule does not touch the matter before us. It refers to a case where there has been a suit in which there has been an omission to sue in respect of portion of a claim, and a decree has been made in that suit. In that case a second suit in respect of the portion so omitted is barred. That is not the case here. In the present case the suit has not been heard but a claim has been omitted by it is said, inadvertence. To hold that in such case an amendment should not be allowed would he to hold something which the rule does not say and which would he absurd. The rule says: 'he shall not afterwards sue,' that is, it assumes that there has been a suit carried to a decision, and a subsequent suit. It does not apply to amendment where there has been only one suit. As the plaintiff had in law a right to apply for an amendment before the conclusion of his suit, it cannot be said that any rights of the appellant in the Pabna suit are affected. Such a contention is based on the erroneous assumption that nothing could be done by way of amendment of the Calcutta suit to remove the objection that the claims on the previous mortgage or charge were not sustainable. A case would fall within Order II,, Rule 2, only if a plaintiff fails to apply for amendment before decree, and then brings another suit. The plaintiffs are not doing that but asking for amendment in the one and only suit they have brought. This is, therefore, not a case in which the amendment either affects rights accrued to the other party, or otherwise prejudices him.
6. It has doubtless been held that where a person knows of the facts before the institution of the suit and omits to make a particular claim by an oversight, it is no answer to say that such omission was due to mere mistake, and was not actuated by any fraudulent or dishonest motive. If the words of a law are clear and positive, they cannot be controlled by any consideration of the motives of the party to whom it is to be applied, nor limited by what the Judges who apply it may suppose to have been the reasons for enacting it: Moonshee Buzloor Ruheem v. Shumsoonissa Begum 11 M.I.A. 551 at p. 605 : 8 W.R.P.C. 3 : 2 Suth. P.C.T. 59 : 2 Sar. P.C.J. 259 : 20 E.R. 209, Bulwunt Singh v. Chittan Singh 3 N.W.P.H.C.R. 27, Ganes Chandra Chowdhry v. Ram Kumar Chowdhry 3 B.L.R.A.C.J. 265 : 12 W.R. 79 and Syed Abdulla v. Hurkishen Singh 2 C.L.J. 490, But these observations apply only where there has been a suit and a decree and a subsequent suit in which such mistake is pleaded, and not to such a case as is before us. It has been argued that the bar under Order II, Rule 2, exists not because a point has been decided but because it should and would have been decided' if the plaintiff had put it forward. This is quite true, but is not to the point. The observation assumes that there has been a suit and a decree in which the point omitted might have been considered and determined. In the present case we are now in only a preliminary stage of a suit in which no decree has been made and there has been no anterior suit.
7. As regards the power of amendment, the Code says:-- 'The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties,'
8. The Court being desirous of getting at the true facts will allow an amendment subject to three general conditions: Bona fides on the part of the applicant; possibility of amendment without such prejudice to the other party as cannot be compensated by costs (such as prejudice to rights accrued), and subject to this that the amendment is not such as to turn a suit of one character into a suit of another character. This statement is not made as being exhaustive but as embodying what are perhaps the three chief conditions on which amendment may be allowed. So it has been held that:--Where a party who has an honest case has, either through ignorance see Mukhoda Soondury Dasi v. Ram Churn Karmokar S.C. 871 at p. 875 : 11 C.L.R. 194 : 7 Ind. Jur. 32 : 4 Ind Dec. (N.S.) 562 and Krishnaji v. Wamnaji 18 B. 144 : 9 Ind. Dec. (N.S.) 604, bona fide mistake or some misapprehension,' not placed the rear facts before the Court see Bhyro Dutt v. Musammat Lekhranee Kooer 16 W.R. 123 and Lakshmibai v. Hari 9 B.H.C.R. 1, or has misconceived his cause of action and form of suit Ragho Parashram. v. Vishnu Govind 5 Bom. L.R. 329, Shyam Chand Koondoo v. Land Mortgage Bank of India, Ld. 9 C. 695 at p. 698 : 12 C.L.R. 440 : 4 Ind. Dec. (N.S.) 1112, and Krishnaji Lakshman Rajvade v. Sitaram. Murarrav Jakhi 5 B. 496 : 3 Ind. Dec. (N.S ) 327 he should be allowed to amend, where this may be done without injustice to the defendant, and in appeal, particularly where the objection that the suit was not maintainable was not taken in the first Court Ragho Parashram v. Vishnu Govind 9 B.H.C.R. 1. Where, however, there is reason to think that an omission to claim was deliberate, it would, it has been said, generally not be proper to allow amendment [Lukhee Kant Doss Chowdhry v. Sumeerooddi Tustar 21 W.R. 208 : 13 B.L.R. 243]. In short, the object of a trial being to get at the rights of the parties, any amendment which may be required for that purpose should, subject to wellknown general principles governing this matter, be allowed. It has been held that apart from the question of limitation, it is unjust to a plaintiff to put him to the great expense of a new suit when a reasonable amendment, not inconsistent with his ease as it originally stood, might equally well answer his purpose as the new suit [Modhe v. Dongre 5 B. 609 at pp. 613, 614 : 3 Ind. Dec. (N.S.) 401]. Here there is not merely a question of expense, for if the. amendment were refused it might be that the plaintiffs would be altogether debarred of their remedy in respect of the previous mortgage and further charge, the factum of which is not denied.
9. Assuming then but not deciding in favour of the appellant that there is an appeal, the grounds put forward to show that the order appealed from is erroneous are in themselves without substance. The appellant has asked us to deal with the facts and we do so. It may be a matter of doubt whether there is an appeal or not, but, assuming this in favour of the appellant, his case fails on the facts.
10. In my opinion there is no sufficient ground for disbelieving the affidavit verified by the Attorney that the claims were omitted by inadvertence. The evidence before us does not justify the conclusion that the omission was deliberate and dishonest, as alleged. I may here record the fact that Mr. Jackson contended that it was not necessary that he should establish his client's case on this point, and that apart from it the law prohibited amendment. In my opinion, and on a full consideration of the facts and law, I am of opinion that the amendment made was justified, The appel, therefore, fails and is dismissed with costs
11. We have been asked to vary Mr. Justice Chitty's order in the first Court as regards costs He made the costs of the application for amendment costs in the cause. This matter, of course, was One within his discretion, with which I think we ought not to interfere unless it is shown that he was clearly wrong. This was not a case in which the party seeking the amendment alleged an error on his part which was admitted by the other side and in which no opposition was made to the amendment, in which case an order might have been that the party seeking the amendment should pay costs. In this case the opposite party opposed this application for amendment on the grounds which have been mentioned in my judgment: and it is not unlikely that for this reason the learned Judge did not determine the facts on this point and ordered the costs to be costs in the cause. The learned Judge's order as regards costs will stand, and, as I have said, the appeal is dismissed with costs.
Lancelot Sanderson, C.J.
12. I agree.