- (1.)This is an appeal against the appellate order of the Commissioner, Ajmer dated 7th Feb., 1959 by which he has set aside the order of the Asstt. Collector, Udaipurwati dated 2.5.56 dismissing the suit of the respondents for declaration and injunction and remanded the case for retrial after allowing an amendment of the plaint.
(2.)We have heard the learned counsel for the parties and have examined the record also. The merits of the case are not disputed before us. The appeal has been filed only against the order allowing the amendment of the plaint, and it has been urged on behalf of the appellants that the amendment having been sought after the dismissal of the suit by the trial court and at a very late stage, although the respondents knew that they had been dispossessed from the suit land and had proceeded for their reinstatement in the court of the Anti -Ejectment Officer and had not been successful there, the amendment, which would also change the nature of suit, should not have been allowed. The amendment sought is not only for adding the relief for possession, but also for adding one more plaintiff as well as making the change in the area of the land in dispute. All the facts sought to be brought in by amendment of the plaint now had been contested by the appellants in their written statement itself and it is a fact that the respondents did not care to have their plaint amended immediately after that. It is also a fact that after two or three months of the institution of the present suit the respondents applied to the Anti -Ejectment Officer for their reinstatement on the ground that they had been wrongfully dispossessed. The proceeding in that application were ordered to be closed by the learned Anti -Ejectment Officer with the observation that a regular suit had been going on between the parties. This order was passed on 6.10.54; whereas the present suit was decided by the trial court on 2.5.56. Even during this interval the respondents did not care to have the plaint amended. It was only in the first appellate court for the first time, when they had lost the suit in the trial court on the ground that there were other share -holders also in the well in dispute and that they were not in possession of the portion of the well over which they wanted to have a declaration of their title and injunction, that they made a prayer for the permission to amend the plaint. The learned Commr. has allowed this amendment and ordered the retrial of the whole suit on the ground that the respondent had been dispossessed from the suit land after the filing of the suit and that the amendment sought was necessary for determining the real question in controversy between the parties and to find out as to who was the person entitled to possession.
(3.)Now, the law on the subject is described in O.6, R.17 of C.P.C., which may be reproduced as below - -
"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 the purpose of determining the real question in controversy between the parties."
The powers of the courts to allow amendment of pleadings as such are very wide and they can be allowed at any stage of the proceedings. Rather, it has been held that all such amendments as may be necessary to determine the real questions in controversy between the parties shall be allowed to be made. This grants the court a very wide power of discretion, which, of course, has to be exercised judicially. But at the same time, as observed by Bowen, L.J., in Cropper vs. Smith, it has to be remembered that the object of courts is to decide the rights of the parties and not to punish them for the mistake they make in the conduct of their cases by deciding otherwise than in accordance with their rights. The main principle that should guide the discretion of the court in such matters is that it should not be allowed if it causes injustice to either party. It has also, however, to be remembered as a cardinal rule that there is no injustice caused to any party if it can be compensated by costs. At the same time it has to be remembered in the words of P.B. Mukherji, J., of the Calcutta High Court in A.I.R. 1953, Cal., 15 that "the primary duty of a court in deciding an application for amendment is not discharged by laying unction to its conscience with the thought that the order will not prejudice any party. The Court has the more positive duty to see whether the proposed amendment is necessary to determine the real controversy between the parties. Nor is the primary consideration, in such an application,, to award costs against the amending party. The Courts do not exist for so commercial a purpose as to be mere institutions for dispensing costs without deciding the merits. They exist primarily for the justice of determining the genuine and real disputes between the parties and incidentally for awarding costs. The real controversy test is he basic test which governs the Courts unchartered powers of amendment of pleadings." An amendment of pleadings can thus be allowed even in a first appeal as in this case and even after the dismissal of the suit by the trial court, if the appellant can be compensated by payment of costs and the real controversy between the parties is enabled to be determined thereby.
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