METTU BHIMUDU Vs. DUGGIRALA PITCHAYYA

JUDGEMENT

(1.) This is an application to revise the order of the District Munsiff of Ramachandrapuram rejecting the petitioner's application under Order VI, Rule 17 of the Civil Procedure Code for amending the plaint filed by him in O.S. No. 112 of 1944. The plaintiff alleged in the plaint that he was adopted in 1922 by his paternal uncle who was the first defendant. The first defendant had a daughter who was married to Surayya. It was averred in the plaint that the first defendant under the advice of his daughter was making attempts to alienate property belonging jointly to the plaintiff and the first defendant and that in doing so he had granted long term leases to the second defendant in respect of some of the joint family properties. That was urged as the ground for the plaintiff, as the adopted son of the first defendant, to ask for partition of his half share and separate possession thereof. The plaint as originally framed was upon this basis and the relief that was asked for was to declare the plaintiff's right to a half share in the plaint schedule property which consisted of one item of wet land measuring an extent of one acre and 12 cents. It was also prayed that the property should be divided into two equal shares and that separate possession of one of the shares should be delivered to the plaintiff and other consequential reliefs by way of future profits, etc., were also asked for. The suit was filed on the 26 June, 1944. The first defendant died in August, 1944, before the service of summons. Thereupon an application was made for bringing on record his widow and daughter and one more alienee as defendants 3, 4 and 5 respectively. These were added. Defendants 3 and 4, namely, the widow and daughter, filed a written statement denying the alleged adoption and propounding a will said to have been executed by the first defendant on the 24 August, 1943, by which it was provided by the testator that the rights in his property should pass on his death to his wife (the third defendant) with a life interest and thereafter it should pass to his daughter (the fourth defendant) with absolute rights. As a consequence arising from the death of the first defendant and because of the will set up by defendants 3 and 4 the plaintiff felt obliged to seek an amendment of the plaint in order to ask for reliefs appropriate to the altered situation. By the amendment he sought to plead that by reason of the first defendant's death the whole of the suit property passed to him according to Hindu Law, that the plaintiff had absolute right to obtain possession thereof and that defendants 3 and 4 had no right whatever to the suit property, the will set up by them and the cowle relied upon by the fifth defendant not being genuine. Consequential amendments were also sought in the paragraphs relating to the cause of action and the reliefs prayed for. He asked for delivery of possession of the schedule property ejecting the defendants therefrom and an order directing payment of the future profits from the date of the plaint until delivery. The application was opposed by defendants 3 and 4 and was, as stated before, dismissed by the learned District Munsiff who dealt with the whole matter after setting out the facts in brief in this way. He said: To put the whole thing very shortly, the petitioner now wants to convert the suit which was laid on the basis of joint possession into one where possession is sought for, admitting that the plaintiff never had it. Such a change, of course, completely alters the nature of the suit and an amendment of this nature cannot be allowed. He relied for this purpose on the decision of this Court in Vaithilingam V/s. Natesa (1912) I.L.R. 37 Mad. 529.

(2.) Before dealing with the decision bearing upon the question, it is necessary to point out that the language of Order VI, Rule 17 is, as contrasted with the terms of its predecessor, Section 53 (c) very wide. The relevant portions of the present rule provide that the Court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner as will be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The statutory test therefore. is whether the alteration of the pleadings or amendment thereof that is asked for is just or whether it is necessary for the purpose of determining the real questions in controversy between the parties. In interpreting and applying this rule the Courts have applied from time to time various tests. While it is recognised that, in order to avoid multiplicity of suits and to enable the final determination of all questions arising in the litigation, the rule should be administered in a fairly liberal manner, it has at the same time been emphatically laid down that, under the guise of alteration or amendment of the pleadings, a party should not be allowed to substitute one cause of action for another or to change the subject matter of the suit. See Ma Shwe Mya V/s. Maung Mo Hnaung (1921) L.R. 48 I.A. 214 : I.L.R. 48 Cal.

(3.) In a very early case decided under the old Section 53 (c) it was pointed out in Kasinaih Das V/s. Sadasiv Patnaick (1893) I.L.R. 20 Cal. 805, that the restriction contemplated by that section was only as to the nature of the suit; the law prohibits any such amendment as would change the fundamental character of the suit; for example a plaint cannot be so amended as to convert a claim based on contract into an action on tort. It was held in that case that an alteration in the relief does not amount to a change in the nature or character of the suit. The same idea was put in a forcible way by Baguley, J., in E.K.S. Chettiar Firm V/s. Maung Min Maung (1912) I.L.R. 37 Mad. 529, a case decided under Order VI, Rule 17 thus: It will be seen therefore that the one thing which must not be altered by an amendment is the fundamental character of the suit; and I understand that the fundamental character of a suit must refer to the foundation on which it is based. It is the foundation on which a suit is based and not the prayer in the plaint that determines its fundamental character. That was a case where the suit as originally framed was for possession of certain properties which had been hypothecated. The purpose of the amendment was to convert the suit into a suit for redemption of the mortgages and it was held by the learned Judge that all that the appellant sought by the amendment was to ask for a different relief based on the same facts and that he left the foundation of his suit entirely unchanged.