U.C. Srivastava, J. - (1.) THIS is second application for amendment of the plaint moved in the Second Civil Appeal. By means of the amendment application to which not only objection has been filed but has been seriously opposed, the plaintiff-appellants have prayed for amendment of the plaint in paragraphs pertaining to payment of court fees and valuation of the suit and the relief clause by addition of relief for declaration as owner of the house in question regarding which conseqential relief of recovery of possession and realisation of damages is found to be existing.
(2.) THE plaintiff-appellant No. 2 claiming himself as owner landlord of House No. 151/52 having purchased it from plaintiff-appellant No. 1 who had earlier purchased it from its owner Murlidhar vide registered sale deed of the year 1976 and alleging defendant-respondent as tenant filed a suit for arrears to rent and for damages for use and occupation till ejectment of defendant. Relief for ejectment was non distinctly mentioned in the relief clause though the suit was entitled as suit for arrears of rent and ejectment and notice preceding the same was also for ejectment. THE defendant-respondent filed a written statement taking it to be suit for ejectment but pleaded that he himself was owner of House No. 151/52 the boundaries of which on two sides did not tally with the description given by plaintiff-appellant though at the same time also where it was mentioned that he himself was owner in possession of house in suit. His claim for owner-ship was based on an unregistered will said to have been executed in his favour by said Murlidhar who had earlier allowed him to reside in the house though not as a tenant. It was pleaded that as the dispute was regarding ownership the court had no jurisdiction to try the suit and plaintiff should file a suit for declaration instead of arrears of rent and ejectment. In view of plea of jurisdiction the plaintiff-appellant took back the plaint and filed it again before the Court of Munsif. Incidentally the written statement was also returned to plaintiffs which too was filed by him along with the plaint. THE trial court framed an issue regarding the ownership of defendant-respondent. THE Parties tendered oral and documentary evidence in support of their claim for ownership. THE plaintiff filed sale deed executed by previous owner and the defendant filed an unregistered will said to have been executed by the very same person in his favour though the date of same was subequent to the date of sale deed relied upon by plaintiff. Both denied the documents filed by either party. THE trial court decreed the suit but the lower appellate court allowed the appeal and dismissed the suit whereafter this second appeal was filed. The plaintiff-appellants during the pendency of this appeal prayed for amendment of the plaint for adding the relief which according to them inadvertently could not be mentioned. The amendment was allowed. The appeal was to be heard and disposed of finally and before that the present amendment application which even contains unnecessary irrelevant and uncalled for matter and allegations, was moved. The objection of the defendent- respondent is in view of Section 102 C. P. C. The suit being of small cause court nature second appeal is not maintainable and the same cannot be converted into revision as has been prayed in the alternative by appellant. The amendment application is not supported by an affidavit and suit for arrears of rent and ejectment cannot be converted into suit for declaration and that too without any consequential amendment and that ad valorem court fee is payable and that amendment in second appeal is not permissible. During the course of arguments usual objection were raised An amendment can be applied for at any stage of suit including at the stage of second appeal which will be evident from the provisions of Order 6 Rule 17 of the Code of Civil Procedure which itself provides for at any stage of the suit. The settled principle is that the amendments be liberally allowed. If amendment is necessary for purposes of determining the real question of controversy between the parties the same can be allowed provided it does not cause injustice to another party which thereby is not deprived of a good defend to the claim and cannot be compensated by costs. If the amendment sought for is not mala fide and even though the party has been careless or negligent the amendment can be allowed even at late stage if the same can be made without injustice to the other side as has been observed in Jai Jai Ram Manoharlal v. National Building Material Suppy Gurgaon, AIR 1969 SC 1267. In M/s. Ganesh Trading Company v. Moji Ram, AIR 1978 SC 484, it was observed that even if a party or his counsel is inefficient in setting out its case initially the short coming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omission. It was further observed even very defective pleading may be permitted to be cured so as to constitute a cause of action where there was none provided necessary condition such as payment of court fees which may be payable or costs of other side are complied with. It is only if lapse of time has barred the remedy as a newly constituted cause of action that the court should ordinarily be prayed for amendment of pleadings. In the said case suit was initially filed by the firm through partner. As partnership had already been dissolved amendment was prayed for changing the description. The amendment prayed for was for correcting the identity of the plaintiff.
(3.) IN Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin, AIR 1981 SC 485 it has been observed 'the liberal principles which guide the exercise of direction in allowing amendment are that amendment which do not totally alter the character ot the action should be readily granted while case should be taken to see that injustice and prejudice an of irremediable character are not inflicted on the opposite party under pretence of amendment that are distinct cause of action should not be substituted for another and that subject matter of suit not be changed by amendment.' In the instant case it is true that the case appears to have been conducted properly even if carelessness ana fault is of lawyer partly/entirely the party is not to suffer and amendment can be allowed provided the same is otherwise not beyond permissible limit. No new fact has been alleged and no change in the cause of action has been sought for. Necessary issues were framed and parties have gone into trial understanding the case of each other and have tendered evidence in support of their case. The amendment >prayed for is only in valuation, court fees and relief clause. The amendment prayed for will not necessitate or result in taking of any further evidence in the case and thus no prejudice would be caused to the respondent. The respondent, still it would be open to take pleas because of the amendment can very well be compensated by costs. The amendment is of such a nature which should be allowed as was done in the case of Nanduri Yogananda Lakshminarasimhachari and others v. Sri Agastheswaraswamivaru, AIR I960 SC page 622. In the said case the Supreme Court approved the order passed by the High Court allowing amendment in appeal before it as the necessary allegation had been made in the plaint and the requisite pleas were raised by appellants, an issue was framed on the question and parties were fully cognizant of points in controversy. The amendment sought for in the said case which was allowed was addition of a new prayer for declaration in the relief clause of the plaint. An amendment can be allowed even at the stage of second appeal provided it does not change the cause of action which deprives the other party of a right vested in it to its prejudice resulting in injustice and prejudice. If necessary issues have been framed and parties have gone into trial understanding the case of each other amendments in relief clause, valuation or court fee clause without addition of any new fact not resulting in remand of the case for retrial, can be allowed though only by compensating the other party with costs.;