LAWS(PVC)-1917-7-13

UPENDRA NARAIN ROY Vs. JANAKI NATH ROY

Decided On July 04, 1917
UPENDRA NARAIN ROY Appellant
V/S
JANAKI NATH ROY Respondents

JUDGEMENT

(1.) The respondents instituted this suit on the 9th December 19l6 against the defendants for recovery of money due to them by the first defendant on the mortgage; of the 1st April 1915, There were a previous mortgage and a further charge, dated 7th January 1914 and 11th December 1914, executed by the same defendant. But these Were not included in the suit. On the 26th February 1917, the plaintiffs gave notice at an application for amendment of the plaint. The affidavit, which is verified by the plaintiffs attorney, states that they did not include their claims under the previous mortgage and charge under the bona fide and erroneous impression that this Court had no jurisdiction to entertain any suit in respect of the mortgage and charge as they comprised properties outside the local limits of our jurisdiction. They say they overlooked one of the provisions of the mortgage of the 1st April 1915. It is said that the defendant, taking advantage of the omission to include these previous claims, filed a suit in the Court of the Subordinate Judge at Pabna, praying for a declaration that the mortgage- debts secured by the previous mortgage and charge were unenforcible. The ground there taken is that no leave was obtained under Order II, Rule 2, of the Civil Procedure Code; that the defendant in that suit intentionally omitted to sue in respect of these sums of Rs. 1,50,000 and Rs. 90,000, and that the plaintiff in that suit was entitled to a declaration that the defendant s mortgage lien for these two sums was unenforceable in law.

(2.) The plaintiffs application for amendment in this suit is supported by an affidavit verified by their attorney, Mr. P.C. Kar. On the other hand, there is an affidavit of Kedarnath Sirkar, a gomaskta and law agent of the defendant. He alleges that the prior mortgage and charge were not included designedly and with dishonest motives and riot under error as alleged. His affidavit is supported by his master. These allegations are denied in the affidavit of Rai Bahadur Janaki Nath Roy, who explains how these claims were omitted.

(3.) The matter came before Chitty, J., who thought it was not possible or convenient to decide the issue of fact raised at that stage. He, however, without deciding anything, made the amendment subject to any contention which the several defendants might raise in answer to the claim as amended. The learned Judge said that he did not see how the defendants would be prejudiced by the amendment being allowed instead of having a lengthy enquiry and a practical decision of the suit in a chamber application. I think it would have been better and more regular that the question of the right to amendment should have been determined before the order was made, or, if this would have involved a lengthy enquiry covering the same ground as the evidence in the suit, that the hearing of the application to amend should have been adjourned to the hearing of the suit and determined on the evidence then taken. Objection has accordingly been taken by Mr. Jackson for the appellant on the ground that an order should not have been made without first determining the plaintiffs right to it. How, he asks, can the Court make an order for amendment subject to the right of the party to object that it ought to have been allowed? The respondents Counsel also states that he was desirous of and asked the Court to hear the application on the facts. In support, however, of the course which the learned Judge took, it must be noted that the Court minutes show that Mr. Chakravarti, who appeared for the appellant in the lower Court, said that as long as his rights were safeguarded and it was understood that his contention was that the Omission to sue was not a mistake but was done advisedly, he had no objection.