Decided on September 25,1967



- (1.) THE main question for consideration in this appeal is whether the parties are governed by the Lex Loci or by the personal law of the parties.
(2.) THE question arises in this manner. It is no longer disputed, though it was in contest in the Courts below, that one Jagan Mahar owned the house in dispute which is situate at Rajnandgaon. He had by his wife Gujji a son, Mangya, and three daughters, Kamalji, Bhagi and Kisni. It transpired that Mangya, Bhagi and kisni predeceased Jagan, who died in 1929 leaving behind him surviving his widow gujji, a daughter Kamalji and two sons of his daughter Kisni, namely, Atmaram and Rajaram. On Jagan's death, the widow Gujji inherited the house. Upon her death in 1936, her daughter Kamalji took the house. Kamalji died on 4 October 1952 leaving a daughter, Bhagirathibai, as her only issue. The suit, out of which this appeal arises, was filed by Bhagirathibai, Jagans daughter's daughter against rajaram, Jagan's daughter's son, for possession of the disputed house. It was dismissed by the Court of first instance. The lower appeal Court, however, allowed her claim. Rajaram filed this second appeal. He died during the pendency of the appeal survived by his daughter Hirabai who was thereupon brought on record as his legal representative.
(3.) INITIALLY Bhagirathibai filed a suit for ejectment, but she was allowed to withdraw it with liberty to bring a fresh suit because she had not duly served on the defendant a notice to quit. After doing the needful, she filed the present suit. Subsequently, she was allowed to convert it into a suit for possession grounded on her title to the house. The second suit for ejectment was filed in accordance with the liberty reserved to her under Order 23, Rule 1 (2) of the Code of Civil procedure. Therefore, the question here is not whether a suit based on title grounded on a different cause of action could be filed. Order 23, Rule 1 of the code does not interfere with the liberty of filing such a suit. The precise question is whether the suit for ejectment, as subsequently laid, could be allowed under Order 6. Rule 17 of the Code to be converted into a suit founded on title. The powers of allowing an amendment under Order 6, Rule 17 of the Code are very wide because the proviso in the old section, which inhibited an amendment that changed the character of the suit, is no longer there. No question of limitation was involved and the defendant was not prejudiced in any way. In this situation, the amendment which the Court allowed was within its jurisdiction. Since the point was not argued before me, I do not consider it necessary to dwell further on this aspect of the matter.;

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