ANJANI KUMAR, J. - (1.) HEARD learned counsel for the petitioner.
(2.) THE petitioners who were plaintiff in a suit after dismissal of the suit filed appeal before the lower appellate court and before the lower appellate court filed an application seeking amendment in the plaint at the appellate stage. This application has been' dismissed by the lower appellate court with the observation as under : 'Having heard the learned counsel for both the parties, I am of the view that sufficient pleadings taking the grounds of acquiring title by way of adverse possession has already been taken by the plaintiff/appellant in suit. The plaintiff has not given the sufficient reasons as to why he could not assert these words in suit at earliest opportunity, so the amendment application is not liable to be allowed. These facts were well within the knowledge of the plaintiff. This amendment application being paper No. Ka -38 has no merit and therefore, liable to be rejected.' Learned counsel for the petitioners relied upon a decision B. K. N. Pillai v. P. Pillai and Anr. : AIR2000SC614 , wherein it was held as under : 'This Court in A. K. Gupta and Sons v. Damodar Valley Corporation : [1966]1SCR796 held : 'The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred : Weldon v. Neale, 1887 (19) OBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation : See Charan Das v. Amit Khan, AIR 1921 PC 50 and L. J. Leach and Company Limited v. Jardine Skinner and Company : [1957]1SCR438 . The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules or procedure is to decide the rights of parties and not to punish them for the mistakes Cropper v. Smith, 1884 (26) Ch D 700 and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended in Kishandas Rupchand v. Rachappa Vithoba, 1909 ILR (33) Bom 644, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil : [1957]1SCR595 . The expression 'cause of action' in the present context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill, 1873 (8) CP 107, in a different context, for it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means a new claim made on new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Limited, 1962 (2) All ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas', Doman v. J. W. Ellis and Company Limited, 1962 (1) All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.' Again in Smt, Ganga Bai v. Vijay Kumar : [1974]3SCR882 , this Court held (para 22 of AIR) : 'The power to allow an amendment is undoubtedly wide and may at any stage be appropriated exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.' In M/s. Ganesh Trading Company v. Moji Ram : [1978]2SCR614 , it was held (Para 4 of AIR) : 'It is clear from the foregoing summary of the main rules of pleadings and provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expertise caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.'The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.'
(3.) RELYING upon the aforesaid principles of law laid down by the Apex Court, in my opinion, the order passed by the lower appellate court is explanatory in nature and in consonance with the taw laid down by the Apex Court which does not call for any interference under Article 226 of the Constitution of India.;