KRISHNA KISHORE GHOSH Vs. KISHORI DEBI KESHANI

JUDGEMENT

(1.) This is an application for amendment of the plaint. The suit was filed in January last, and no written statement has yet been filed. The facts are briefly as follows. The Plaintiffs are the owners and occupiers of a dwelling house, being premises Nos. 27 and 29, Baranashi Ghose Street. They were originally the owners of a contiguous piece of land, being premises No. 22B, Rajendra Mullick Street, which they sold out in 1937. The Defendant is the present owner thereof. On that land, the Defendant has already constructed a four-storied building, and the Plaintiffs allege that she is proceeding to construct a fifth storey. The Corporation has sanctioned only a two-storied building, and according to the Plaintiffs, the foundation thereof is also that of a two-storied building. Premises Nos. 27 and 29, Baranashi Ghose Street, is a house constructed about half a century ago. According to the Plaintiffs, the result of all this has been that the western wall of the Plaintiffs house is tilting westward, large cracks have appeared in the walls and in the roofs and the Defendant's house is also sinking and has caused disturbance in the neighboring sub-soil. It is further alleged that there are ancient lights in the Plaintiffs' premises to the west, and the Defendant has built a wall sixteen feet high, at a distance of two feet only, from these ancient lights and is about to continue building the wall still higher. I need say nothing regarding the merits of the case here, since an application is pending for an injunction restraining the Defendant from making any further construction, where these matters will be considered. In that application, the Plaintiffs applied for, and obtained, an interim injunction restraining the Defendant from making further construction, not expressly authorised and sanctioned by the Corporation of Calcutta. At the hearing of the application, however, it transpired that the Plaintiffs had pleaded most of the relevant facts in the body of the plaint, but had omitted to incorporate a prayer for a perpetual injunction restraining the Defendant from making any further constructions, apart from the wall, in respect of which only, an injunction had been prayed for. As the plaint stood, the Plaintiffs could only ask for damages and an injunction regarding the wall. The result was that the interim injunction regarding further construction of the building was clearly bad, and I had to vacate it. The Plaintiffs, however, asked for an opportunity to amend the plaint by incorporating a prayer for a perpetual injunction, and I adjourned the main application for amendment of the plaint, which they have now done. The amendments asked for are set out in red ink, in a draft, a copy whereof has been furnished to the Defendant. The amendments asked for in Ex. "A" to the petition have been slightly varied. The only substantial alteration in the plaint is the addition of a prayer for a perpetual injunction restraining the Defendant from further building, without sanction of the Corporation. It is argued that this is changing the nature of the whole suit and introducing a new and inconsistent case. Reliance is placed on Section 54 of the Specific Belief Act, which lays down that no injunction should be granted where damages are an adequate remedy. It is argued that the Plaintiffs themselves admitted in the original plaint that the injury was capable of being assessed in damages, thus disentitling them to an order for injunction. This, to my mind, is not a correct reading of the plaint. The Plaintiffs state that as a result of the unlawful building by the Defendant, their house has been damaged. The damages suffered so far, have. been. assessed, and it is said that the damages are continuing from day to day. It has nowhere been stated that the further constructions are also assessable in damages. It would be a strange kind of law which compels a man to look on helplessly while a neighbour goes on making unauthorised constructions, simply because, if his hearth and home cracks up and falls to the ground, a new one could be made again, by spending money. In such a case, pecuniary compensation is not an adequate remedy and I have no doubt in my mind that if the facts are proved, an injunction order would be quite appropriate. This, however, is in reality, an objection relating to the merits of the case. In this application I am not concerned with the point. as to whether the Plaintiffs will succeed in obtaining an order for injunction. What I am concerned with, is, as to whether I should allow them an opportunity to ask for it. In my opinion the omission to ask for a perpetual injunction in this case, is a pure accidental error, or as the Plaintiffs put it, "by mistake or oversight", and the amendment should be granted. I shall now discuss the law on. The subject. Amendments of pleadings are governed by the revisions of Order VI, Rule 17 of the Code of Civil Procedure which runs as follows:

(2.) This corresponds to Section 53 of the old Code. The provisions of Section 53, were more restricted, both as to the point of time when the application could be made, as well as to the extent of the amendment. Under the amended provision, a wide discretion is given to the court in the matter of amendment of pleadings. It is true that such discretion has to be exercised on judicial principles and not in an arbitrary or fanciful manner so as to cause injustice to the other side, but it would be correct to say that, subject to such a limitation, the courts are gradually tending to become more and more liberal in granting amendments, especially when the. application is made at an early stage, and the other side can be adequately compensated by costs. Order VI, Rule 17 of our Code is practically the same as the corresponding English rule, Order XXI, Rule 1, and it is instructive to refer to the leading cases on the subject.

(3.) It has been the constant endeavour of the courts to allow parties every facility to put forward their real disputes. The Judicial Committee observed in Hunooman Persaud v. Mussamat Babooee, 1856 6 MooIndApp 393, 410, as follows: