1. This is an appeal on behalf of the plaintiff in a suit for declaration of title to immoveable property and for recovery of possession thereof. In the plaint, as originally framed, claim was advanced in respect of four parcels of land, numbered 119, 120, 122 and 123 in the Record of rights. Before the trial began, the Munsif held a local inquiry, and in his presence, the plaintiff appears to have stated that, by oversight, plot No. 121 had not been claimed in the plaint. His case in substance was that he was under the impression, when he filed the plaint, that the lands comprised in Plots Nos. 121 and 122 had been recorded under one number, but he had subsequently found that the parcel had been divided into two plots and recorded under two numbers. Three days later, the Munsif drew up a record of the local investigation, which was shown to the Pleaders of the parties. This statement narrated that the plaintiff had claimed Plot No. 121 and had alleged that the matter had been omitted from the plaint by mistake. The plaintiff subsequently applied for leave to amend the plaint and to include a prayer for recovery of possession of Plot No. 121. The defendant objected, but the Court granted the requisite leave. As some of the defendants were not represented at the trial, and as the Court was reluctant to grant an. adjournment in a case pending for a long time, copies of the amended plaint were directed to be served upon the absent defendants. The defendants who had objected, however, were not allowed any opportunity to amend their written statements, nor were they granted time to produce evidence to rebut the claim of the plaintiff. The case was tried out on the merits, a decree was made in favour of the plaintiff in respect of parcels Nos. 121 and 122, while the claim in respect of Plot No. 119 was dismissed. There was no decree in respect of Plots Nos. 120 and 123 as the defendants admitted the claim of the plaintiff in respect of these parcels. The plaintiff then appealed in respect of Plot No. 119 and the defendants preferred a cross appeal in respect of Plots Nos. 121 and 122. The District Judge allowed the cross-appeal and dismissed the appeal, with the result that the whole suit was dismissed. In respect of Plot No. 121, he held that the application for amendment ought not to have been allowed. In respect of Plot No. 122, he held that the finding of the Court of first instance was based principally upon a petition filed by the defendants in a previous suit and that that petition was no evidence in respect of the matter now in controversy.
2. In the present appeal, two points have been urged, first, that the amendment was rightly allowed by the Court of first instance, and, secondly, that the effect of the petition has been misjudged by the Court of Appeal below. The judgment of the District Judge has also been criticised on the ground that he has not dealt with the points in controversy in detail, but has, upon a superficial view of the case, reversed the decision of the Court of first instance. In our opinion, the judgment of the District Judge cannot be supported.
3. In so far as Plot No. 121 is concerned, it has not been disputed that it was competent to the Court of first instance, under Rule 17 of Order VI of the Code of 1908, to allow an amendment of the plaint. The only matter for consideration is, whether the amendment could have been allowed without injustice to the defendants, an injustice which could not be remedied by an appropriate order for costs: Mani Lal Guzrati v. Harendra Lal Roy Chowdhury 12 C.L.J. 556 : 8 Ind. Cas. 79 : Clarapede v. Commercial Union Association (1884) 32 W.R.(Eng.) 262; Weldon v. Neal (1887) 19 Q.B.D. 394 : 56 L.J.Q.B. 621 : 35 W.R. 820. There is in our opinion, no foundation for the suggestion of the District Judge that the application for amendment was the result of the local investigation held by the Munsif. What happened obviously was that at the local investigation, the plaintiff discovered that, by an error on his part, the claim had been limited to Plot No. 122, and he appears to have stated this promptly before the Munsif. This, in fact, is the substance of the statement of the Munsif himself as incorporated in the record of the result of the local inquiry. It is further clear that the amendment did not alter the nature of the suit. No doubt, technically, the effect of the amendment was to enlarge the scope of the suit, inasmuch as the claim for Plot No. 121 was included in the plaint. But the substance of the matter is that the plaintiff added to the claim for Plot No. 122 a claim for Plot No. 121 on the allegation that his intention was to include the entire claim in the original plaint. We hold accordingly that the amendment was properly allowed by the primary Court: and, therefore, although a Court of Appeal is very chary of interfering with an order of this description Byrd v. Nunn 7 Ch. D. 284 at p. 286 : 47 L.J. Ch. 1 : 37 L.T. 585 : 26 W.R. 110 we must reverse the order of the District Judge, and we do so without hesitation as he himself had differed from the view of the Court of first instance Laird v. Briggs 19 Ch. D. 22 at p. 29 : 45 L.T. 238 : Australian Steam Navigation Co. v. Smith 14 App. Cas. 318 at p. 320 : 61 L.T. 134 : Lang v. White Cross Co. 62 L.T. 119 : Plumkett v. Day 26 Ir. L.T. 97 : Hollis v. Burton (1892) 3 Ch. 226 : 67 L.T. 146 : 40 W.R. 610. At the same time, we are of opinion that the course pursued by the Court of first instance was not just to the defendants, the latter were entitled to reasonable opportunity to amend their written statements and to adduce evidence in rebuttal of the case sought to be established by the plaintiff. Although, therefore, we hold that the view taken by the District Judge is not correct, we are not prepared to approve of the course pursued by the Munsif.
4. In so far as the second ground is concerned, it is clear that the District Judge has not understood the effect of the petition upon which reliance is placed by the plaintiff. He appears to have thought that that petition operated as res judicata. But the plaintiff seeks to use the statement in that petition as an admission of his title by the defendant. But whether the statement can be used against persons other than those who made it, may be a question for consideration, and what the precise bearing of the statement may be upon the questions in controversy is a matter upon which we are not-competent at this stage to express an opinion.
5. The result is that this appeal is allowed, in so far as Plots Nos. 121 and 122 are concerned. The decree of the Court below will be discharged to this, extent and the case will be remitted to the Court of first instance in order that the claim of the plaintiff in respect of these two parcels may be retried. The defendants will be allowed to amend their written statements and both parties will be at liberty to adduce fresh evidence. In so far as Plot No. 119 is concerned, the Courts below have concurrently found against the plaintiff, and the appeal has not been pressed in respect of that plot The decree of the District Judge, therefore to this extent will be confirmed. There will be no order for costs either in this Court or in the Court of Appeal below; the costs in the Court of first instance will abide the result.
6. We desire to record our emphetie disapproval of the extraordinary procedure pursued by the Court of first instance. The Court was convinced that an amendment was necessary in the interests of justice, and made the order accordingly but allowed no time to the defendants to amend their written statements and to adduce rebutting evidence, for the reason that the case had been pending for a long time. It is manifestly undesirable that the interests of justice should be sacrificed in this manner, because a suit has been pending for some time, and has thus become 'explanatory.'