SASHI BHUSAN BANERJEE Vs. TULSI CHARAN BASU

JUDGEMENT

(1.) This rule must be made absolute. The rule was obtained by the defendant against an order allowing the plaintiffs to amend their plaint. Put shortly the facts are these. The plaintiffs instituted a suit against the defendants on 1st February 1947 for contravention of the Bengal Municipal Act regarding side space.

(2.) The plaintiff's case was that the defendant petitioner erected a building on his premises in contravention of the rule regarding side space. The rule then in existence provided that there should be a three feet side space. In 1937 the rule was amended and it prescribed a four feet wide space. Before the new rule had been introduced the defendant bad obtained sanction of the Tollygunge Municipality and had erected the first storey of his building in accordance with those rules. In 1946, the defendant erected a second storey in accordance with the old plan which had provided for two storied building and had practically finished construction when the present suit was instituted against the defendant by the plaintiffs alleging a breach of the rule regarding side space. There was an application for injunction by the plaintiffs which was granted and subsequently dissolved on the defendant undertaking to remove any structure if it were found in the suit that it contravened the provisions regarding side space. In November 1947 for the first time the plaintiffs applied for an amendment of their plaint. They alleged that not only had the side space rule been infringed but that the defendant had also infringed the rule regarding back space and they wished to amend their plaint by adding that the defendant had infringed the rule regarding backspace. The defendant opposed this amendment on the footing that it introduced an entirely new cause of action. The learned Munsif negatived the contention of the defendant and allowed the amendment. Against that order the present rule has been obtained.

(3.) It seems quite clear to me that the allowing of this amendment would introduce an entirely new cause of action. The suit was baaed on the infringement of a particular rule regarding side space. The plaintiffs cannot be allowed at this late stage to make out an additional and independant case of an infringement of quite a different rule which relates to the back space. The learned advocate appearing in opposition to the rule stated that at the time of the suit back space rule had not been infringed but that subsequent to the filing of the suit a permanent structure was erected on the back space. If that be so, it seems to me that the case of the plaintiffs for an amendment becomes still less maintain-able. The suit was based on a certain cause of action. If a fresh cause of action has arisen after the institution of the suit, the plaintiffs may very well institute another suit on this cause of action. I see no reason why they should be allowed to introduce a fresh and independent cause of action in a suit which they instituted at a time when the infringement subsequently alleged did not exist.