Ramaswami, J.:— This rule is directed against an order of the learned Subordinate Judge of Dhanbad, dated the 6th December 1951, refusing to permit the defendant to file an additional written statement.
The opposite party brought a suit claiming damages against the petitioner on the allegation that on the 4th of July 1948, an engine shunting a goods train collided with a buffer and crashed in, front of a laboratory erected by the plaintiff which was located close to the buffer near the railway line. The plaintiff company alleged that they suffered loss and damages which amounted to Rs. 1,47,170 and odd. The defendant filed a written statement in which, it was denied that there was any negligence on the part of the railway administration. On the 26th of November 1951, the defendant applied under Order 8, rule 9 of the Code of Civil Procedure, for permission to file an additional written statement. The defendant prayed that two paragraphs should be added in the original written statement to the following effect:—
“(1) The defendant has learnt on enquiry that the land on which the laboratory was constructed did not belong to the plaintiff company or their predecessor. The said land and its vicinity and other adjoining lands were acquired for public purposes and belong to the defendant.
(2) The defendant has been informed and believes that the plaintiff company had or has got no title or right to the laboratory or other buildings attached thereto and apparatus, plants, etc.”.
The application was rejected by the Subordinate Judge on the ground that the question of title to the land or ownership of the laboratory, apparatus and plants was not a material question to be decided in the suit.
In support of this rule, the learned Government Advocate contended that in refusing permission to file an additional written statement the learned Subordinate Judge has acted illegally and without jurisdiction. It is contended by the learned Government Advocate that the foundation of the suit depends on the title of the plaintiff to the land and to the laboratory erected thereon as also the apparatus and the plants. On behalf of the opposite party. Mr. Basanta Chandra Ghose said that if the amendment is allowed, there would be a complete change in the nature of the suit. There is no warrant for this contention since the claim of the plaintiff is based on the tort of negligence, and unless the plaintiff company-establish that they have title to the laboratory and apparatus damaged the claim for damages must fail. It was also pointed put by Mr. Ghose that the amendment sought is inconsistent with the case of the defendant in the original written statement. It is true that there was no specific denial on the part of the defendant in the written statement that was originally filed, that the laboratory, apparatus and, plants belonged to the plaintiff. But merely because the amendment sought is alleged to be inconsistent with the previous case of the defendant, this is no good reason for rejecting the application of the defendant for amendment. The general rule which is applicable to a case of this nature is that leave to amend, ought to be granted unless the party applying is acting mala fide or by his blunder has done some injury to his opponent which cannot be compensated by award of costs; otherwise, whether the original omission arose from negligence, carelessness, or accidental error, the defect may be allowed to be remedied if no injustice is done to the other side. The principle is so stated in Ramji Ram v. Salig Ram. In the present case, it is conceded that the actual hearing of the suit has not commenced, though issues have already been framed. It is, therefore, right that the petitioner, should be permitted to amend the written statement and add the following paragraph:
“The defendant has been informed and believes that the plaintiff company had or has got no title or right to the laboratory or other buildings attached thereto and apparatus, plants and other items mentioned in schedule B annexed to the plaint.”
It is argued on behalf of the petitioner that another paragraph ought to be added to the written statement to the effect that the land on which the laboratory was constructed did not belong to the plaintiff company or their predecessor and the land was acquired for public purposes and belonged to the defendant. The question whether the plaintiff had title to the land on which the laboratory stands is not immediately relevant for the determination of the present suit brought by the plaintiff. It was stated on behalf of the petitioner that another suit has been brought by the Union of India against the plaintiff in the court of the Subordinate Judge of Dhanbad in which the Union of India has claimed the land as belonging to it and has asked for ejectment of the plaintiff and for restoration of possession. It is convenient that the question of title Should be determined in that, suit and the petitioner ought not to be permitted to raise the question concerning title to the land on which the laboratory stands in the present suit.
For these reasons, I allow the application and permit the petitioner to amend the written statement to the extent indicated above. This order is subject to the condition that the petitioner pays four gold mohurs as costs to the plaintiff in the court of the Subordinate Judge. There will be no order for costs for the hearing of the application in this Court.
Das, J.:— I agree.
Rule made absolute.
K.D