A.D.Koshal, J. - (1.) THIS petition which seeks a revision of the order dated the 4th of May, 1975, of Shri Suresh Chand Jain, Subordinate Judge 1st Class, Ambala Cantt. allowing the plaintiff, Ram Kaur, to amend her plaint, has arisen from a suit originally filed on the 5th of October, 1972, with the prayer that a decree be passed in favour of the plaintiff for a declaration that she was the owner of house No. 567, R.A. Bazar, Ambala Cantt., and also for a mandatory injunction directing the then sole defendant Dulia Devi to get registered a sale deed said to have been executed by her. The allegations on which the suit is based are these. Dulia Devi was the owner of the said house which she agreed to sell to the plaintiff for Rs. 4,000/ - under an agreement dated the 22nd of October, 1969, against an advance payment of Rs. 2,000/ -. The balance of Rs. 2,000/ was paid to Dulia Devi on the 31st of August, 1970 under a fresh agreement executed on that date. Later on, however, the parties decided by mutual agreement that Dulia Devi would retain a part of the house and would sell to Ram Kaur the rest of it at a price of Rs. 3,000/ - and would return to her the amount of Rs. 1,000/ - already overpaid. On the 14th of June, 1971 Dulia Devi executed the necessary sale deed which was presented to the Sub -Registrar, Ambala, for registration, after possession thereunder had been delivered to Ram Kaur. However, Dulia Devi failed to present herself before the Sub -Registrar who refused to registrar the sale deed.
(2.) IN her statement Dulia Devi presented certain objections in pursuance of which Ram Kaur plaintiff amended her suit with permission of the Court so as to allege that although the agreements dated the 22nd of October, 1969, and 31st of August, 1970, entered into by Dulia Devi with Sohan Singh husband of Ram Kaur plaintiff, the sale deed itself was executed in favour of Ram Kaur at the instance of her husband who was added as a defendant No 2. To the amended plaint Dulia Devi defendant (who had by then been arraigned before the Court as defendant No. 1) presented a written statement in which she took an objection that the suit was not maintainable in the form in which it had been filed. On the 20th of January, 1974, Ram Kaur made an application to the trial Court praying for permission to amend the plaint a second time so as to make therein a prayer for a decree for possession of the property in dispute through specific performance of the two agreements above mentioned and in the alternative, for recovery of Rs. 4, 00/ - paid to Dulia Devi. Other consequential amendments were also prayed for. This application was allowed by the trial Court on payment of Rs. 50/ - as costs through the impugned order I do not find any substance in the petition It is well settled that if an amendment does not cause to the opposite party such injury as may not be compensated by costs, the amendment should be allowed even if it is sought after long delay and even in second appeal unless it changes the nature of the lis. In the present case the allegations of fact already made are being adhered to by Ram Kaur even after the amendment, the main purpose of which is to make the necessary prayer so that an appropriate relief is demanded in place of one which may not be granted in law. The natures of the suit remains unaltered by the amendment which also causes no such injury as cannot be compensated by costs to Dulia Devi, it being admitted on all hands that the suit as amended would not be time -barred if it had been filed on the date the present application for amendment was made.
(3.) LEARNED Counsel for the petitioner relies upon Jiwan Mal v. Aljah Jawaya,, 133 IC 646 a case decided by Tek Chand and Gordon Walker, JJ, of the Lahore High Court. In that case the plaintiffs sought a declaration that they were owners of certain immovable properties. The suit was originally instituted on the 20th of December, 1924 on a plaint bearing a court -fee stamp of Rs 10 in which it was averred that Sahib Ditta, the deceased father of the defendants, had successfully pre -empted a sale of those properties which had been effected by a cousin of , his in favour of third parties, that Sahib Ditta did not have already cash to pay the pre -emption money, and, therefore, he sold the preempted properties to the plaintiffs. It was alleged that the plaintiffs had paid the major portion of the consideration to Sahib Ditta who had delivered possession of the properties to the plaintiffs, but that he had failed to have the necessary mutation effected and to receive the balance of the sale price, and that after his death, his sons, the defendants, had also 'been giving evasive replies'. The plaintiffs accordingly sued for declaration ownership. In the plaint the date of the alleged sale was not specified, but it was stated that on the 12th March, 1923, the father of the defendants had executed an agreement (Ex. P. 2) and got it registered. Upholding an objection taken by the defendants that the plaint was vague and indefinite, the trial Court returned it for amendment. In the amended plaint the plaintiffs admitted that the document (Exhibit P. 2) dated the 12th of March, 1923, executed by Sihib Ditta was an agreement to sell the property in dispute to the Plaintiffs, and averred that in pursuance of this agreement the plaintiffs had paid large sums of money to or on behalf of Sahib Ditta. They farther alleged that more then two months later, on the 19th of May, 1924, Sahib Ditta had verbally sold the property in dispute to the plaintiffs and had promised to receive the unpaid portion of the consideration at the time of the mutation but that he had failed to do so. On the strength of this alleged oral sale the plaintiffs claimed to have become owners of the property in dispute and to be entitled to the declaration asked for. The amended plaint bore the same Court -fee stamp of Rs. 10/ - only. 2. The suit was decreed by the trial Court. In first appeal the High Court held that no title in the property in dispute passed to the plaintiffs under agreement Exhibit P 2 and that the oral sale set up by the plaintiffs was really non -existent. They were, therefore, found not to be entitled to the declaration prayed for. Tek Chand, J., who delivered the judgment of the Division Bench, remarked in this behalf: It is unfortunate that while they have admittedly paid a large sum of money to or on behalf of the defendants, they cannot get any relief in this suit. But for this they have only themselves to thank. They deliberately framed the plaint in an erroneous form, based their claim on false allegations and made every possible attempt to evade payment of proper court -fee; and if they fail the blame rests principally, if not wholly, on them. The prayer was ground down on the ground that its acceptance would entirely change the character of the suit and would introduce a totally new, different and inconsistent cause of action. 3. As would be seen, the facts in the Lahore case were materially different. There the suit as originally framed was based on an ora sale which was found to have been falsely set up. When that sale failed the plaintiffs in the High Court, then turned round so that they could fall back upon a recent Exhibit P. 2 and claim specific performance which was a relief inconsistent with the case set up by them earlier. Here the position is that the factual statements appearing in the plaint are not being altered by the amendment in any material particular, much less in a manner so as to make the amended plaint inconsistent with the one now on the record. The ratio of the Lahore judgment is not attracted to the facts of the present case.;