DEWAN MAMATAZ ALI Vs. MUSTT MEHABUBA BEGAM

JUDGEMENT

(1.) This revision application has been filed against the order dated 30.11.92. passed by Munsiff No. 1 Dhubri in Title Suit No. 370/86. By the impugned order the learned Munsiff rejected the application of the plaintiff for amendment of the plaint. Hence this revision application. I have heard Mr. A.S. Choudhary, learned Advocate for the petitioner and Mr.K.P. Pathak, learned Advocate for the respondent.

(2.) Even at the cost of repetition the law regarding amendment may be stated : it is the well stated principle of law of amendment that generally speaking all amendments necessary for the purpose of determining the real question in controversy between the parties in the proceeding or of removing any defect or error in the proceeding should be allowed. The power to grant amendment is entirely discretionary to be used judicially on the consideration of the facts and circumstances of each and every case. The provision of Order 6 Rule 17 further allows amendment at any stage but generally subject to two conditions : (1) not working injustice to the otherside. (2) It being necessary for the purpose of determining the real question in controversy between the parties. An unnecessary or very belated stage amendments should not be allowed. The Court also at the time of passing an order of amendment should bear in mind that all rules and procedural laws are intended to secure proper administration of justice, it is essential that it should be used to serve and be subordinate for that purpose, the power of amendment should be liberally exercised but no power is given to the Court to substitue one cause of action pleaded bringing a total change in subject matter of the suit. In the garb of liberal exercise of power the Court should bear in mind that the plaintiff shall not be allowed to turn his suit into a gamble or a game of chess to change position at every turn of event to cause misery to defendant or to use the Court as a tool for that.

(3.) If an amendment introduces a totally different or new inconsistent case or its effect is to substitute one set' of facts or cause of action for another or change the character of a suit such prayer for amendment should be refused. What is such cause of action has been pointed out by the Supreme Court in A.K. Gupta v. D. V. Limited is that the expression does not mean every fact which is materially to be proved to be entitled by the plaintiff to succeed. The expression only means new grounds constituted by new facts. The word 'new cause' means new set of facts. The Court is not empowered to allow set of ideas or approach to defeat/upset right acquired by any party by lapse of time. On the background of this law let us now examine the legality and validity of order passed by the learned Munsiff. The learned Munsiff has pointed out that the suit which was filed by the plaintiff was a suit for specific performance of contract and perpetual injunction against the defendant to get a deed of sale in his favour based on alleged previous contract for sale. But later on by amendment the plaintiff wanted to have certain declaration and wanted to avoid certain decrees passed as far back on 1977 March, the Court rightly refused to grant the prayer for amendment. Accordingly I find that there is no error of jurisdiction and this order does not require any interference. The revision is dismissed. The stay order passed earlier also shall be vacated. Revision dismissed.