1. This appeal arises out of a suit for partition, and the only question involved in this appeal is, whether the Courts below were right in refusing to allow the plaintiffs to amend the plaint under the following circumstances.
2. The plaintiffs alleged that the property in suit was the ancestral property of the plaintiffs and defendants; that the plaintiffs were in joint possession with the defendants as co-sharers; that as it became inconvenient to hold possession of the property jointly, they gave notice to the defendants to effect a partition and then brought this suit. The cause of action is said to have arisen in January and May 1916 when the defendants declined to effect the partition.
3. The defence (of the defendant No. 1 who alone contested the suit), inter alia, was that the plaintiffs had no title, that the property was not ejmali property, and that the plaintiffs had no possession. He accordingly contended that the suit should not be maintained in the form in which it was instituted.
4. There were several issues raised, the first issue being: 'Is the suit maintainable in its present form Can the plaintiffs claim partition without praying for declaration of title?' The fourth issue was: 'Is the subject-matter of the suit undervalued and is the suit properly stamped ?' and the seventh issue was: 'Were the plaintiffs or defendant No. 2 or their predecessors in interest, Madan Mohan Basak, ever in possession of the property in suit ?'
5. The questions of Court fee and possession were taken up several months before the trial commenced, and the learned Subordinate Judge same to the conclusion that the plaintiffs were out of possession at the date of the suit and that the suit, therefore, could not be maintained on a Court-fee of Rs. 10. Thereupon the plaintiffs paid ad valorem Court fee, but did not amend the plaint. When the suit name on for hearing, the Pleader for the defendant objected that the suit could not be proceeded with on the plaint, as framed. The plaintiffs thereupon put in a petition in which they stated that the prayer (kha) in the plaint was' wide enough to be construed as a prayer for possession after partition and that if that was not considered sufficient, the plaint might be amended by adding the words at the end of the prayer (kha), namely, that
Out of the entire property, 4 annas 5 gundas 1 kara share being separately demarcated, a decree for possession may be given in favour of the plaintiff with respect to the same.
6. As a matter of fact, the prayer (kha) in the plaint was to the same effect and the application was not really an amendment of the plaint. The learned Subordinate Judge held: 'The application is equivocal and does not contain all the elements necessary to convert the present suit into a suit for recovery of possession., Under the circumstances, I refuse to admit this application and hold that the suit is had in form and is not maintainable on that account.' On appeal, the learned Additional District Judge has affirmed the order of the first Court.
7. The plaintiffs have appealed to this Court and it has been contended before us that the amendment ought to have been allowed.
8. As stated above, the suit was originally brought for partition, that is, on the footing that the plaintiffs were in joint possession with the defendants and merely wanted separate possession. That case has been found to be false. They will now have to sue for recovery of possession. That will be a new cause of action and different from that on which the suit was originally based.
9. There is no doubt that the Civil Procedure Code gives ample power to the Court to give leave to parties to amend the pleadings. Order VI, Rule 17 lays down: '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.' And Rule 7 provides: 'No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.'
10. It is contended, however, on behalf of the respondent that the defendant would be seriously prejudiced in his defense on the question of limitation, if the amendment were allowed by converting the suit into one for recovery of possession, because although the period of limitation for the claim for recovery of possession might be proved at the trial to have expired between the date of the institution of the suit and the date of the amendment, it would be saved by reason of the amendment which would relate back to the date of the institution of the suit, whereas a new suit, if filed at the date of the amendment, would be barred. We were referred to the cases of Cropper v. Smith (1884) 26 Ch. D. 700 at p. 710 : 53 L.J. Ch. 891 : 51 L.T. 733 : 33 W.R. 60 and Kali Das Chaudhuri v. Srimati Danpadi Sundari Dassee 43 Ind. Cas. 893 : 22 C.W.N. 104 : 27 C.L.J. 403.
11. Although, as we have said, the power given to the Court should be liberally exercised, this should not be done where the amendment would prejudice the opposite party.
12. In the ease of Cropper v. Smith (1884) 26 Ch. D. 700 at p. 710 : 53 L.J. Ch. 891 : 51 L.T. 733 : 33 W.R. 60 Bowen, L.J., observed: 'I think it is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes which they make in the conduit of their case s by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Courts of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct' but the learned Judge added, 'if it can be done without injustice to the other party.'
13. In the case of Kali Das Chaudhuri v. Srimati Danpadi Sundari Dassee 43 Ind. Cas. 893 : 22 C.W.N. 104 : 27 C.L.J. 403 Sanderson, C. J., observed: 'if we were to grant his application for amendment, it would amount to granting him leave to bring a fresh suit of an entirely different nature, which suit, if brought now, would be barred by the Statute of Limitation.' In the same case Mookrjee, J, observed: 'it is well settled that where a plaintiff bases his claim upon a specific legal relation alleged to exist between him and the defendant, he should not be allowed to amend the plaint so as to base it on a different legal relation This rule is only one aspect of the broader principle that leave to amend could be refused where the amendment would introduce a totally different, new, and inconsistent case.'. and, further, 'it is plain that the Court would be very reluctant to deprive the defendants in this manner of a valuable right which they have already acquired by the operation of the Statute of Limitation.'
14. In the present case we do not know how the amendment would affect the defendants as no application has yet been made setting out the cause of action and when it arose. We were pressed with the fact that the plaintiff has paid Court -fee as directed by the Court. But up to date there has been no proper application for amendment. It is true that there was in the Court of first instance an application (referred to above), which, as the learned District Judge puts it, was 'mere tinkering at the prayer portion of the plaint'. There was in fact no material amendment even of the prayer portion; and we think that the application made in the Court of first instance was wholly insufficient for the purpose of amendment, Under Order VII, Rule 1(e) the plaint shall contain 'the facts eon-situating the cause of action and when it arose'. That has not been done either in the Court of first instance or in the Court of Appeal. Even in this Court the learned Pleader for the appellant is unable to state how the plaintiffs want to amend the plaint. Moreover, the plaintiffs came to Court not only with a false case of having been in joint possession, but they attempted after the institution of the suit to deprive the defendant of their possession with the help of the goondas and got hold of some municipal bills with a view to create evidence of possession in support of the case as framed. Both the Courts below have in the exercise of their discretion disallowed leave to amend, and having regard to all the circumstances, we do not think that the plaintiffs ought to be allowed leave now to amend the plaint. The appeal must accordingly be dismissed with costs.