NILAKANTHA MISRA AND ANOTHER Vs. PATA DIBYA

JUDGEMENT

(1.) Plaintiffs' prayer for amendment having been refused, the present civil revision has been filed.

(2.) A brief reference to the factual aspects is necessary for disposal of the revision application. Petitioners filed the suit in question for declaration of title, confirmation of possession and redemption of mortgage in respect of.schedule. A property appended to the plaint. According to the plaintiffs, they were in urgent need of money and approached the opposite party for a loan of Rs. 3,000.00 the latter being not a registered money lender though irregularly lending money agreed to give loan of the aforesaid sum with 9% interest after execution of sale-deed in respect of schedule-A property which was to be kept as security instead of a hand-note or mortgage and further agreed to execute an agreement for re-conveyance of the property, and the deed was intended to be a security and the petitioners remained in possession of the property, the deed was executed for Rs. 3,000.00 the opposite party also executed re-conveyancing agreement; subsequently part of the money advanced was repaid and with tacit understanding and consent of the opposite party the money was to be paid as per convenience of the petitioners keeping in view their financial difficulty; further sums were adjusted which were paid in kind; the opposite party, wanted to wriggle out of the arrangement being aware of the value of the property which was much more than the sum indicated in the agreement; the opposite party also refused to execute the deed of re-conveyance and therefore, filing of the suit was necessitated. The opposite party as defendant filed written statement denying the plaintiff's case on the plea that the plaintiffs wanted to cultivate as tenant and on refusal to accede to their prayer, the case has been filed to cause inconvenience and harassment to him. An application for amendment was filed with prayers to amend the prayer portion and to add a specific prayer that the plaintiffs were entitled to specific performance of contract, while giving up the prayer relating to declaration and other consequential changes were also prayed for. Objection was filed by the defendant-opposite party on the grounds inter alia indicating that the proposed amendments were intended to change the nature and character of the suit. The learned subordinate Judge refused the prayer on the ground that the nature and character of the suit was likely to be changed.

(3.) The petitioners submit that by giving up a prayer and making another prayer which is inherent in the pleading, the nature and character of the suit is not changed. It is additionally submitted that an application for amendment has to be liberally construed and has to be permitted unless prejudice is caused to the other side. Mr. Sinha, learned counsel appearing for the opposite party, however, submits that the pleas now sought to be introduced are inconsistent in nature and the case as now sought to be made out is mainly based on an agreement; the prayers do not go together and in any event the agreement being of the year 1971 the scope for repurchase, even accepting the plaintiffs' amended plea was available in 1974 and the suit for specific performance.of contract could have been filed in 1977, and therefore acceptance of the plea relating to the cause of action would be a fruitless exercise.