JAWAHARLAL MAMTANI Vs. BHAGCHAND MOTUMAL MAMTANI

JUDGEMENT

(1.) The question of lawreferred to the larger Bench by T.P.S. Chawla, J. may beformulated as under :

(2.) Our learned brother, on the basis of the researchmade and presented to him at the time of hearing, observedthat inasmuch as from 1908 to 1970 a plea like the onenow raised by the petitioner has not been noted in any of thedecided cases this was a strong indication that for over 60years that the Civil Procedure Code had existed, such aproposition as now raised by the petitioner was not thoughtto be tenable and so, could not be raised. Indeed, ourlearned brother went on to comment that perhaps if sucha plea was to be allowed it may be destructive of the wholetheory of amendment and defeat its very purpose. He feltthat, such a condition cannot be imposed. Nevertheless, inview of certain decisions brought to his notice, which wereall decisions given since 1971, our learned brother thoughtit proper that the question should be decided authoritativelyby a larger bench. That is how the matter is before us.

(3.) It is also not correct that such situations have notarisen at any time between 1908 and 1970. They musthave arisen. If the counsel have been unable to cite cases,it may only show that there has not been enough research.Indeed, there is an old case reported as Manindra ChandraNandi Bahadur v. Rangalal Mondal and others, A.I.R.1918 Calcutta 443, (1) which we have found without sucheffort. In this case a suit for possession was filed withregard to certain chowkidari chakran lands on 3/03/1911. The plaint set out the resumed lands in a schedulecontaining 9 plots of land of an area of 26 bighas saidto be of the value of Rs. 305. On 16/08/1911 anapplication was made for amendment of the plaint whichwas allowed on 29/08/1911. The result of this orderwas that the suit became one for 59 plots instead of 9 plots ofan area of 69 bighas instead of 26 bighas and for lands ofthe value of Rs. 705 instead of Rs. 305. The question arosewhether the amended plaint did or did nor. include the landsset out in the schedule of the unamended plaint. TheSubordinate Judge observed that the plaintiffs struck outall the plots claimed at first and put in new plots altogetherof more value than that of plots claimed originally. In theappeal, therefore, the first question that arose was toascertain whether the so called amended plaint included anylands as set out in the schedule to the unamended plaint.The next point which the Bench had to consider was asregards such lands as were added on 16/08/1911 andwere not included in the original plaint. If there were anysuch plots the question arose when the suit must be regardedas instituted qua those lands. It was contended that theamendment having been allowed, the suit must be regardedas having been instituted with regard to all the lands on 3/03/1911 when the plaint was originally presented.It was held that with regard to lands added by the amendment made in August, 1911 the suit must be deemed lohave been instituted on 16/08/1911.