Harnam Singh, J. -
(1.) ON 4th December 1948 Rullia and five other persons instituted the suit out of which these proceedings have arisen for possession of land measuring 184 kanals 10 marlas of land with a share in the shamilat and two houses situate in Tikka Charangi, village Beroli, Tehsil Dera, District Kangra, alleging that Mt. Kokloo, widow of Sudaman, died on 5th March 1948 and that on her death the property in suit devolved upon them. On 28th February 1949, plaintiffs applied under O. 6, R. 17, Civil P. C., 1908, hereinafter referred to as the Code, for permission to plead that Rup Singh son of Sudaman was the last male holder of the property in suit. In the original plaint it was pleaded that Sudaman was the last male holder of the property in suit. In a brief order the trial Court has allowed the application for permission to amend the plaint on payment of Rs. 32 as costs. Man Singh defendant applies under S. 115, Civil P. C. for the revision of the order passed by the trial Court on 1st April 1919, permitting the plaintiffs to amend the plaint by stating that Rup Singh son of Sudaman was the last male holder of the property in suit.
(2.) MR . Daya Kishan Mahajan, learned counsel for the petitioner contends that under R. 17 of O. 6 of the Code it was not open to the trial Court to allow the plaintiffs to raise an allegation of fact inconsistent with their previous pleadings. Indeed, counsel contends that the plaintiffs have been allowed to introduce, by way of amendment, a case totally different from the case set up by them in the original plaint. In support of the contention raised, Mr. Daya Kishan Mahajan cites Ma Shwe Mya v. Maung Mo Hnaung,, A. I. R. (9) 1922 P. C. 249 : (48 Cal. 832) and Nasir -ud -Din v. Babu Lal, I. L. R. ( : 1945) ALL. 109 : (A. I. R. 1945 ALL. 197). In Ma Shwe Mya v. Maung Mo Hnaung, : A. I. R. 1922 P.C. 249 : (48 Cal. 832) the plaintiffs sued in February 1913, seeking specific performance of the verbal agreement made in 1912 by the defendant with him for transfer of certain land for oil -wells in place of the first agreement of 1903 and when the Court found that the verbal agreement was not proved the plaintiff applied to amend the plaint by claiming damages for breach of the contract of 1903. On these facts Lord Buckmaster said :
All rules of Courts are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject -matter of the suit.
In the present case Mr. Daya Kishan Mahajan concedes that notwithstanding the amendment the cause of action remains the same and the amendment does not change the subject -matter of the suit. Clearly Ma Shwe Mya v. Maung Mo Hnaung, : A. I. R. 1922 P. C. 249 : (48 Cal. 832) has no application to the facts of this case. In Nasir -ud -Din v. Babu Lal, : I. L. R. (1945) ALL. 109 : (A. I. R. 1945 ALL. 197) the facts were that by an instrument dated 14th November 1949, the U. P. Government gave a lease of the plot in suit to Nasir -ud -Din appellant. Babu Lal then instituted the suit on 28th May 1940 alleging that he was the owner of the land and in that suit impleaded the U. P. Government as a defendant. Written statements were filed by Nasir -ud -Din and U. P. Government on 12th August 1940. Nasir -ud -Din alleged in his written statement that the land did not belong to the plaintiff, and that the U. P. Government was the owner of the land and had every right to execute a lease in his favour. The Government on the other hand stated in its written -statement that on receipt of notice dated 19th December 1939, from the plaintiff an enquiry was made and a notice was served on defendant 1 on 3rd February 1940, informing him not to make any constructions and again on 22nd February 1940, another notice was served on defendant l informing him that his lease was cancelled. Paragraph 20 of the plaint was in these words :
That defendant 2 had no right or authority to grant any lease or to make any transfer of the said plot of land to defendant 1, and if defendant 2 has, as alleged by defendant 1, granted a lease to defendant 1, in respect of the plot of land in suit, the lease is absolutely illegal, ineffective, null and void as against the plaintiff and does not and cannot create any right title or interest in favour of defendant 1.
The answer of the Government to this paragraph of the plaint was in these words : "The answering defendant takes no objection to para. 10 of the plaint." Now, the trial Court decreed the suit on 26th August 1941. From the decree of the trial Court Nasir -ud -Din appealed on 18th October 1941. The appellate Court remitted the case to the trial Court with the direction that it should bring on the record further evidence on the points in issue and then send the record back to the appellate Court. Pursuant to the order of remand the parties examined evidence before the trial Court on 26th September 1941 and then the trial Court directed that the record may be returned to the appellate Court. Sometime after the record had come back to the appellate Court and the case had come up before that Court on certain dates in connection with various matters, an application was filed on 20th November 1942, in the appellate Court on behalf of the U. P. Government praying that leave should be granted to the applicant to plead that the land really belonged to the Government and not to the plaintiff. On those facts Verma J. said :
But amendment should not enable one distinct cause of action to be substituted for another nor the change of the subject -matter of the suit. Amendment should be refused when the other party cannot be placed in the same position, as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
Clearly, the rule laid down in Nasir -ud -Din v. Babulal, : I. L. R. 1945 ALL. 109 : (A. I. R. 1945 ALL. 197) has no application to the present case as stated above in the present case. Plaintiffs pleaded in the original plaint that the last male holder of the property in suit was Sudaman and that on the death of Sudaman the property in suit devolved on Mt. Kokloo, widow of Sudaman. In the amended plaint plaintiffs now allege that on the death of Sudaman the property devolved on Rup Singh son of Sudaman and that on the death of Rup Singh in 1909 the property in suit devolved on Mt. Kokloo, mother of Sudaman (Rup Singh ?). The cause of action, if any, arose on 6th March 1948 on the death of Mt. Kokloo. In this connection references may be made to paras 2 and 5 of the original and the amended plaints. Clearly the amendment does not substitute one distinct cause of action for another nor change the subject -matter of the suit.
Mr. Daya Kishen Mahajan next contends that considering that the allegations in the amended plaint are inconsistent with the pleadings of the plaintiffs in the original plaint the amendment ought not to have been allowed. That the argument raised has no substance appears from an examination of R. 7 of O. 6 of the Code. Rule 7 reads :
No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
From a perusal of R. 7 it appears that a party can be allowed to plead by way of amendment an allegation of fact inconsistent with the previous pleadings of that party. In the present case plaintiffs seek permission to amend the plaint by pleading that Rup Singh son of Sudaman was the last male -holder of the property in suit, where as plaintiffs pleaded in the original plaint that Sudaman was the last male -holder of the property in suit. Finding as I do that the case falls within R. 7 of O. 6 of the Code and that the amendment was necessary for the purpose of determining the real questions in controversy between the parties. I dismiss the petition for revision with costs. Parties are directed to appear in the trial Court on 9th October 1950.;