- (1.) This is an application for amendment of the plaint. The suit was filed in January last, and no written statement has yet been filed. The facts are briefly as follows. The Plaintiffs are the owners and occupiers of a dwelling house, being premises Nos. 27 and 29, Baranashi Ghose Street. They were originally the owners of a contiguous piece of land, being premises No. 22B, Rajendra Mullick Street, which they sold out in 1937. The Defendant is the present owner thereof. On that land, the Defendant has already constructed a four-storied building, and the Plaintiffs allege that she is proceeding to construct a fifth storey. The Corporation has sanctioned only a two-storied building, and according to the Plaintiffs, the foundation thereof is also that of a two-storied building. Premises Nos. 27 and 29, Baranashi Ghose Street, is a house constructed about half a century ago. According to the Plaintiffs, the result of all this has been that the western wall of the Plaintiffs house is tilting westward, large cracks have appeared in the walls and in the roofs and the Defendant's house is also sinking and has caused disturbance in the neighboring sub-soil. It is further alleged that there are ancient lights in the Plaintiffs' premises to the west, and the Defendant has built a wall sixteen feet high, at a distance of two feet only, from these ancient lights and is about to continue building the wall still higher. I need say nothing regarding the merits of the case here, since an application is pending for an injunction restraining the Defendant from making any further construction, where these matters will be considered. In that application, the Plaintiffs applied for, and obtained, an interim injunction restraining the Defendant from making further construction, not expressly authorised and sanctioned by the Corporation of Calcutta. At the hearing of the application, however, it transpired that the Plaintiffs had pleaded most of the relevant facts in the body of the plaint, but had omitted to incorporate a prayer for a perpetual injunction restraining the Defendant from making any further constructions, apart from the wall, in respect of which only, an injunction had been prayed for. As the plaint stood, the Plaintiffs could only ask for damages and an injunction regarding the wall. The result was that the interim injunction regarding further construction of the building was clearly bad, and I had to vacate it. The Plaintiffs, however, asked for an opportunity to amend the plaint by incorporating a prayer for a perpetual injunction, and I adjourned the main application for amendment of the plaint, which they have now done. The amendments asked for are set out in red ink, in a draft, a copy whereof has been furnished to the Defendant. The amendments asked for in Ex. "A" to the petition have been slightly varied. The only substantial alteration in the plaint is the addition of a prayer for a perpetual injunction restraining the Defendant from further building, without sanction of the Corporation. It is argued that this is changing the nature of the whole suit and introducing a new and inconsistent case. Reliance is placed on Section 54 of the Specific Belief Act, which lays down that no injunction should be granted where damages are an adequate remedy. It is argued that the Plaintiffs themselves admitted in the original plaint that the injury was capable of being assessed in damages, thus disentitling them to an order for injunction. This, to my mind, is not a correct reading of the plaint. The Plaintiffs state that as a result of the unlawful building by the Defendant, their house has been damaged. The damages suffered so far, have. been. assessed, and it is said that the damages are continuing from day to day. It has nowhere been stated that the further constructions are also assessable in damages. It would be a strange kind of law which compels a man to look on helplessly while a neighbour goes on making unauthorised constructions, simply because, if his hearth and home cracks up and falls to the ground, a new one could be made again, by spending money. In such a case, pecuniary compensation is not an adequate remedy and I have no doubt in my mind that if the facts are proved, an injunction order would be quite appropriate. This, however, is in reality, an objection relating to the merits of the case. In this application I am not concerned with the point. as to whether the Plaintiffs will succeed in obtaining an order for injunction. What I am concerned with, is, as to whether I should allow them an opportunity to ask for it. In my opinion the omission to ask for a perpetual injunction in this case, is a pure accidental error, or as the Plaintiffs put it, "by mistake or oversight", and the amendment should be granted. I shall now discuss the law on. The subject. Amendments of pleadings are governed by the revisions of Order VI, Rule 17 of the Code of Civil Procedure which runs as follows: Rule 17 : 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 questions in controversy between the parties.
(2.) This corresponds to Section 53 of the old Code. The provisions of Section 53, were more restricted, both as to the point of time when the application could be made, as well as to the extent of the amendment. Under the amended provision, a wide discretion is given to the court in the matter of amendment of pleadings. It is true that such discretion has to be exercised on judicial principles and not in an arbitrary or fanciful manner so as to cause injustice to the other side, but it would be correct to say that, subject to such a limitation, the courts are gradually tending to become more and more liberal in granting amendments, especially when the. application is made at an early stage, and the other side can be adequately compensated by costs. Order VI, Rule 17 of our Code is practically the same as the corresponding English rule, Order XXI, Rule 1, and it is instructive to refer to the leading cases on the subject. In Tildesley v. Harper,1978 10 Ch 393, Bramwell L.J. said as follows: I have had much to do in Chambers with applications for leave to amend and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. In the same case, Thesiger L.J. said as follows: I am also of opinion that it is important that the rules of the court as to pleading; should be enforced, but this may be done at too great a price. The object of these-rules is to obtain a correct issue between the parties and when an error has been made it is not intended that the party making the mistake should be mulcted in the loss of the trial. In Cropper v. Smithm,1884 26 Ch 700, 710, Bowen L.J. said as follows: Now, I think it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in. the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace....It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right. Also Clarapede and Co. v. Commercial Union Association,1884 32 WLR 263, and Weldon v. Neale,1887 19 QB 394.
(3.) It has been the constant endeavour of the courts to allow parties every facility to put forward their real disputes. The Judicial Committee observed in Hunooman Persaud v. Mussamat Babooee, 1856 6 MooIndApp 393, 410, as follows: It is of the utmost importance to the right of administration of justice in these courts that it should be constantly borne in mind by them that by their very constitution they are to decide according to equity and good conscience that the substance and merits of the case are to be kept constantly in view...that if by inadvertence or other cause, the recorded issues do not enable the court to try the whole case on the merits, an opportunity should be afforded by amendment, and if need be, by adjournment, for the decision of the real points in dispute.;