SHYAMAL MITRA MUSTAFI Vs. J.G. SAGGI

JUDGEMENT

(1.) The provisions of law relating to amendment of pleadings as contained in Order 6 Rule 7 of the Code of Civil Procedure are couched in simplest possible terms reading as hereunder : -

(2.) The word "may" in the first part of the Rule has given rise to a deep -rooted impression that amendment is a matter solely in the discretion of the Court, though the discretion, as is obvious, must be exercised judicially on sound principles. But the impression is probably erroneous as it ignores the word "shall" in the later portion of the Rule. The Legislature using the words "may " and "shall" in such close proximity and in the same sentence can not be taken to have used them interchangeably and thus indiscriminately, unless we intend to go to that length, which we can not, to presume that the Legislature was playing with words. We must, therefore, conclude that while the first part of the Rule vests the Court with discretion to allow amendment, the latter part makes it obligatory on the Court to do so. We say this on the high authority of the Privy Council in Shamu Patter v/s. Abdul Kadir (ILR 35 Madras 607 at 612) where the provisions of Sec. 149 of the proceeding Code of 1882, corresponding to Order 14, Rule 5 of the present Code were being considered. That Sec. 149, analogous to its successor in Order 14, Rule 5 in the present Code, read as hereunder :.

(3.) And Sir Ameer Ali, speaking for the Board, observed that "the first part of the Sec. leaves it in the discretion of the Court to frame such additional issues as it thinks fit, whilst the latter makes it imperative on the Judge to frame such additional issues as may be necessary to determine the controversy between the parties." Following this ratio, we must hold that once the proposed alterations or amendments appear to be "necessary for the purpose of determining the real question in controversy between the parties", the Court is obliged to allow them.