DEONANDAN OJHA Vs. RAMDEYAL OJHA

JUDGEMENT

(1.) The suit for redemption of the mortgage dated 5-9-1916 filed by opposite party No. 1 was dismissed by the trial court. Thereafter he filed an appeal in the court below. During the pendency of the appeal an amendment of the plaint was allowed so far the relief portion of the plaint is concerned. By the relief the plaintiff sought to get his title declared in respect of half of the suit lands for which he wanted recovery of possession also. Originally the suit for redemption was in respect of half of plots 1403, 1405 and 1406 of khata No. 262, By the amendment a fresh Schedule II was Inserted and the aforesaid three plots with entire area were mentioned in that Schedule. A further relief was added that if in the opinion of the court half share of the plaintiff in Schedule II land had not been partitioned a decree for partition by appointment of a Pleader Commissioner be passed. The court of appeal below by its order dated 17-6-1966 directed the amendment of the plaint. The respondent had objected to the amendment of the plaint on the ground that the proposed amendment would affect the nature of the suit. The court observed as follows:

(2.) Learned counsel for the petitioners urged before me that the learned Subordinate Judge was not justified in setting aside the judgment and decree of the trial court and remanding the case for fresh trial. He submitted that if in the opinion of the learned Subordinate Judge the three issues, that is (i) whether the plaintiff has got title to the lands in suit?, (ii) is the plaintiff entitled to the recovery of his possession over the suit land, as the owner of the land? and (iii) is the plaintiff entitled to partition of Schedule II lands, if so, for what share?, arose for consideration, recourse should have been taken to the procedure as laid down under Order 41, Rule 25 of the Code of Civil Procedure (hereinafter referred to as the Code) which runs as follows:

(3.) Learned counsel for the petitioners further submitted that the issues which the learned Subordinate Judge has framed in this case should not have been framed and no direction should have been made for taking additional evidence on these issues. He submitted that the amendment was made only in the relief portion and it was made under Clear understanding that the plaintiff wanted to add no more facts in the plaint or to change the facts already alleged and that he only wanted an adjudication of his title and recovery of possession on the evidence already adduced. This contention was also raised before the lower appellate court but it overruled the objection on the ground that the petition of amendment did not show that the appellant-plaintiff had expressed his desire that no further evidence would be led on his behalf if the amendments were allowed. Learned advocate for the petitioners was also asked to point out if any commitment in writing had been made by the plaintiff that he would not lead any more evidence but nothing was pointed out to the court. It is now well settled that the best evidence of the fact as to what happened before the court is what is recorded by the Judge in his order. The parties are precluded to challenge the correctness of the statement made by the court in the order. It can only be changed if the Judge himself says that he incorrectly recorded the order or it did not so happen but by mistake that was recorded or if both the parties agree that what is recorded by the court is not correct: see the decision of the Supreme Court in Bank of Bihar v. Mahabir Lal, 1964 BLJR 1 at p. 4 = (AIR 1964 SC 377 at p. 380). Every undertaking by a party is not given before the Court in writing. Counsel gives undertaking and the Court accepts that undertaking and proceeds on that undertaking and passes orders. It is as good as an undertaking given by a party himself in writing and is binding on him. Therefore, it was rightly pointed out by learned counsel for the petitioners that the learned Subordinate Judge was not right in giving a go-by to the undertaking given by the plaintiff before the lower appellate court while obtaining an order for amendment of his plaint.