ISMAIL BIBI AMMAL Vs. MOIDEEN ABDUL KADIR SAHIB

JUDGEMENT

(1.) The petitioner, plaintiff in the case, sued to recover rent from the defendants and possession of the property. Owing to the defence set up in the written statement, the petitioner asked for leave to amend the plaint by adding also a prayer for declaration of title on paying the necessary Court-fees. This petition was refused by the District Munsif and this civil revision petition is filed against his order. The District Munsif says as follows: The application is opposed. It is urged that the amendment now prayed for would change the character of the suit and that this application should not therefore be allowed at this late stage in the suit.

(2.) It has been held in several cases that a suit for rent on the basis of a lease should not be allowed to be converted into a suit for declaration of ownership : vide Bai Shri Majirajbai v. Maganlal Bhaishankar [1895] 19 Bom. 303. It has been held that when a plaintiff bases a claim on a specific legal relationship between him and the defendant he should not be allowed to amend the plaint so as to base it on a different legal relationship.

(3.) It may be pointed out that the Bombay case was decided under Section 53, Civil P.C. which has been since rep aced by Order 6, Rule 17, which is very much wider in terms. In fact the phrase in Section 53 that a plaint shall not be amended either by the party to whom it is returned for amendment or by the Court so as to convert a suit of one character into one of another and inconsistent character is not to be found at all in the present Order 6, Rule 17 which says, that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for determining the real questions in controversy between the parties. The amendment in the Bombay case, it may also be noted, was sought after judgment and in the course of appeal. There is nothing in the proposed amendment of the plaint which really adds anything to the rights which plaintiff has stated in the plaint and as the points which have been raised in the case by the written statement necessarily involve the determination of the plaintiff's title, the plaintiff should not be driven to a new suit. There are several rulings of this Court to that effect, Venkata Ratnamma v. Sreeramulu . This was a suit of the same sort as the present and the learned Judge observed: It may be observed also that if the plaintiff is to be driven to a fresh suit, it will be a suit of precisely the same character. Parties do not pray for declarations when there is no obstacle to be removed and plaintiff will again state that she is the landlord, relying, if no further evidence is forthcoming, upon defendants admissions in these suits, and defendants will again set up occupancy rights, confronted, however, by the finding in these suits.