RACHHYA SINGH Vs. RAM RAN BIJAI PRASAD SINGH

JUDGEMENT

(1.) THIS application has been filed by defendants Nos. 1 and 2 and it is directed against an order passed by the trial Court on the 23rd December, 1971, allowing two petitions for amendment of the plaint filed by the, plaintiffs. The suit had been instituted in 1963 and evidence for the parties had closed on the 17th December, 1971 and arguments had also been concluded on that day. The learned trial Judge had fixed the 23rd December, 1971, as the date for delivering his judgment. On the 22nd December, the plaintiffs had filed two amend-ment petitions. In the main petition for amendment, they had stated, that, during the course of argument it had been pointed out that certain lands in dispute had been sold for a paltry amount of money, without mentioning the value of the lands sold and, therefore, the following amendment may be allowed to be incorporated in paragraph 4 of the plaint:

(2.) LEARNED Counsel for the petitioners has argued, that, by these amendments the plaintiffs will change the nature of the case and it may even be, that the amendment will oust the jurisdiction of the Munsif in trying the suit. It is contended, that, neither of these points has been considered by the learned Judge in allowing the proposed amendment. LEARNED counsel for the plaintiffs-opposite parties, has, on the other hand, urged, that, the amendments of the plaint have been properly allowed by the learned Judge and the amendments really indicate an additional approach to the same facts that the plaintiffs had alleged in the suit and the plaintiffs' case will not change at all by the amendments. Having heard learned counsel for the parties, I am of the opinion, that, the learned Judge's order must be set aside. It is clear, that, he has not directed his attention to any of the points which arise in connection with the amendment of the pleadings. It is quite clear, that, in the original suit there was no foundation or basis for which evidence could be adduced on the footing that the debts incurred by defendant No. 3 were avyavaharika in their nature. It is clear, that, by the second amendment, the plaintiffs proposed to incorporate a new claim on a new basis on new facts. As a matter of fact, the learned counsel for the opposite parties urge, that, the expression "avyavaharika" has a wide connotation and, if that be so, then the plaintiffs are in a worst predicament. There is no issue at present on the nature of the avyavaharika debt, which defendant No. 3 is said to have incurred. Without any amendment of the issues, it may not be possible for the parties to lead evidence on the nature of the debt, said to have been incurred by defendant No. 3, and the contesting defendants would be seriously prejudiced, if the plaintiffs are allowed to lead evidence of avyavaharika nature of defendant No. 3's debts, without clear pleadings and issues on the subject. Then, the learned trial Judge has not appreciated the main amendment proposed, which had said, that, the lands sold on the 24th January, 1955, were worth not less than Rs. 5,000/-. If the lands were worth more than Rs. 5,000/-, then the jurisdiction of the trial Judge may be ousted. In any event of the matter, there was an issue in the suit as to its valuation and, by order dated the 25th April, 1970, the Court held, that, the valuation of the suit lands was Rs. 4,500/-. The plaintiffs have claimed possession of the suit lands, after revaluing the suit at Rs. 4,500/-and they have paid ad valorem court-fee on that amount. All these matters will have to be reopened, if the plaintiffs are now allowed to say, that, the lands were worth more than Rs. 5,000/-. Therefore, in my opinion, the learned Judge has acted with gross irregularity of jurisdiction in allowing the amendments prayed for on behalf of the plaintiffs. The civil revisional application is, therefore, allowed and the impugned order is set aside. There will be no order for costs.