CHANDU MODI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application in revision and is directed against the order dated 5-8-60 whereby the trial court refused to allow one of the two amendments sought to be made in the plaint. In the plaint, the plaintiffs claimed certain settlement from the Banaili Raj and, in support of that claim, the original averment made in paragraph 3 of the plaint was that they had taken the settlement from the landlord, Kumar Krishnanand Singh of Banaili. This plaint was filed on 31st March, 1959. Thereafter the defendants 2nd party filed written statement on 27-4-59. In paragraph 8 of the written statement, the plea set up by the defendants was that in the year 1944, as stated in paragraph 3 of the plaint, the lands in suit could not be settled by the landlord. The matter for the time being stood at that stage. Thereafter on 3-8-60 the application for amendment was filed by the plaintiffs. One of the amend-ments sought thereunder, which is the subject-matter of controversy before me, was that the settlement was made by the receiver of the Banaili Raj Estate. This was objected to by the defendants. The court, on hearing the parties came to the following conclusion :

(2.) It is not disputed that the estate had been In the hands of receiver since 1938 and is still under the hands of some receiver or the other at least in so far as the estate is composed of non-zamindari property. Accordingly, it has been argued, that if the estate was in the hands of the receiver since the year 1938, the property, which forms part of the Banaili Raj, could not be settled by the landlord, Kumar Krishnanand Singh, in the year 1944. I, therefore, think that, if this amendment is allowed in spite of the objection already taken by the defendants in paragraph 8 of their written statement, that would be making a new case regarding the settlement and that would further amount to filling up of a lacuna as pointed out by the defence in the aforesaid paragraph. Relying therefore on a decision in Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444, it has been argued on behalf of the defendants that the court) was right on this ground alone in rejecting the application for the aforesaid amendment.

(3.) Secondly, as stated above, it has been argued that there is a clear finding of the court below that the application for amendment has not been made in good faith and therefore, for that reason also, as observed in Tildesley v. Harper, (1878) 10 Ch D 393, by Bramwell, L. J. there is no justification for me to interfere with a discretion already exercised by the trial court in the matter. In the aforesaid case, Bramwell, L. J., has observed :