1. This is a revision petition filed by the plaintiff Amolakchand against the order dated 28-9-1950 passed by the Additional District Judge, Wardha, in Civil Suit No. 16-A of 1949, allowing, an application filed by the defendants 1 to 3 for leave to amend their written statement.
2. The plaintiff brought a suit on 19-10-1949 against the defendants for redemption of a mortgage dated 17-9-1936. The defendants were served-on 29-11-1949 and filed their written statement on 19-7-1950. In paras. 6 and 15 of their written statement they admitted the plaintiff's right for redemption provided the plaintiff paid to them, the sum of Rs. 17238-3-0 as the price of redemption, in addition to all costs of the suit. The defendants filed an application for amendment of their written statement on 7-9-1950 by which they claimed ownership and exclusive title to the property in suit by denying the plaintiff's right of redemption. They also proposed to amend their written statement by pleading want of notice and that the transaction in suit was not in the course of money-lending business. The application for amendment was opposed by the plaintiff on the ground that the proposed amendment displaces the admission made by them in para. No. 15 of their written statement, and that it was wholly inconsistent with the previous statement dated 19-7-1950.
3. The lower Court, though holding that the proposed amendment displaces the defence of the defendants 1 to 3, allowed the amendment on payment of costs Rs. 100/- to the plaintiff. It is against this order that the plaintiff has come up-in revision.
4. The defendants in their application proposed, to make the following amendments as para. 6(A) after para. 6 of their written statement:
“These defendants deny that they are moneylenders and have money-lending business in this Province. It is also denied that they hold a money-lender's licence. These defendants further deny that they did not maintain accounts. It is submitted that the provisions of the C.P Money-lenders Act do not at all apply to defendants 1 to 4 and to the transaction in suit for reasons set forth hereinafter.”
5. This prayer of the defendants was not seriously opposed.
6. The defendants also proposed further amendment by substituting para. 6 of their written statement by the following paragraph:
“The plaintiff has no right of redemption for reasons stated hereinafter. In the alternative, these defendants submit that in case it is held that the mortgage sued upon is really a mortgage and not an out and out conveyance, the plaintiff cannot redeem the same unless and until he pays the full mortgage money with interest and costs as given in the attached schedule A.”
7. In paras. 7(A), 7(B) and 7(C) of their application for amendment, the defendants have stated the circumstances in support of their prayer for amendment. They have also referred to certain letters which were discovered after the filing of the written statement which according to them disclose that the mortgage in suit was executed instead of a regular sale deed at the instance of the plaintiff to avoid payment of consent money to the malguzar.
8. It was argued on behalf of the applicant that it was not permissible to allow the amendment on the facts disclosed in the application when under Section 92 of the Evidence Act, evidence was not admissible to vary the terms of the mortgage. Reliance was placed on —‘Kamta Singh v. Chaturbhuj Singh’, AIR 1934 PC 98 (A) and — ‘Joseph Darmanin v. Carmel Micallef’, AIR 1946 PC 50 (B).
9. * The improbability of the convincing nature of the new defence sought to be raised is not in itself a ground for refusing to allow an amendment of the written statement by the inclusion of such defence. In my opinion, this is not the stage where the question of admissibility of the evidence to show the nature of the transaction should be gone into in considering whether the amendment in the written statement should be allowed or not.
10. It was next argued by the learned counsel for the applicant that the defendants should not be permitted to amend their written statement as the amendment would convert the defence into another of a different and inconsistent character. Reliance was placed on — ‘Nasir Uddin v. Baboo Lal’, AIR 1945 All 197 (C); — ‘Ma Shwe Mya v. Maung Mo Hnaung’, AIR 1922 PC 249 (D) and — ‘Narayanappa v. Suryanarayana’, AIR 1950 Mad 46 (E). It has been urged by the learned counsel for the non-applicants that the amendment is sought at the earliest stage when the real nature of the transaction was made known to the defendants and that the lower Court has rightly exercised its discretion in allowing the defendants to alter their pleadings even though it amounted to withdrawal of admission. Reliance was placed on the —‘Lakhhamansingh v. Mahendralal’, AIR 1938 Nag 388 (F); — ‘Ahmed Hossein v. Chembelli’, AIR 1951 Cal 262 (G) and — ‘Hollis v. Burton’, (1892) 3 Ch 226 (H).
11. Amendment of pleadings is permitted under O. 6, R. 17 of the CPC. It consists of two parts:
“(a) 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
(b) All such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties shall be made.”
12. The present case is under the first part. The object of the rule is that the Courts should get at and try the merits of the cases that come before them, and should consequently allow all amendments that may be necessary for the purpose of determining the real question in controversy between the parties provided it can be done without causing injustice to the other side. Bowen L.J in — ‘Cropper v. Smith’, (1884) 26 Ch D 700 at pp. 710, 711 (I), observed as follows:
“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 …. 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.”
13. The principles applicable to the amendments of plaints equally apply to the amendments of the written statements. In — ‘Lakhhamansingh v. Mahendralal, (P) (cit. sup.)’, though the plaintiff's prayer for amendment was disallowed, as it was sought at a very late stage i.e, when the case stood reserved for argument, their Lordships observed as follows:
“Amendments should always be made, in our opinion, with great readiness. In most cases up to issue stage no special burden as to costs is called for and thereafter justice is met by leave being granted conditionally on the payment of costs thrown away. But where one sons an amendment asked for at so late a stage, which introduces a new cause of action one should ask oneself: where would the applicant be if he were to bring a fresh suit at the time he seeks this amendment? If you find that he is out of time and that he has not got the power to bring that fresh suit without finding himself opposed by the defence of limitation, very exceptional circumstances have to be present to justify a Court letting him do in one litigation what he cannot do in another.”
14. In the present case, the application for amendment was filed by the defendants at a very early stage when notices for inspections of documents were exchanged by the parties under O. 11, R. 13 of the CPC. No injustice would be done to the plaintiff by the amendment as he will have ample opportunity to meet the defendants' case before the issues are framed.
15. In — ‘Ma Shwe Mya v. Maung Mo Hnaung. (D) (cit. sup.)’, the amendment sought by the plaintiff was disallowed on the ground that the claim as amended had become barred by limitation. In — ‘Nasir Uddin v. Baboo Lal, (C) (cit. sup.)’, as well as in — ‘Narayanappa v. Suryanarayana (E) (cit. sup.)’, the prayer for amendment was disallowed as it was made at a very late stage. It is clear that in these cases amendments were not allowed as they were not only out; of time but were made at a very late stage. They are therefore not applicable here. In — ‘Ahmed Hossein v. Chembelli, (G) (cit. sup.)’, it has been held as follows:
“The making of amendments is not really a, matter of power of a Court but its duty, so that substantial justice may be done for which, alone Courts exist. As a fundamental principle the law strongly favours an amendment where it is necessary in the ends of justice and it would require the clearest language to alter this very beneficial legal principle.”
16. No doubt the amendment would change (the nature of the defence from admission to the denial of the plaintiff's right to redeem; such an amendment would not be allowed if asked at a, late stage as was held in — ‘Laird v. Brigs’, (1880-81) 16 Ch D 440 (J). But if sufficient grounds are shown, the defendant can be allowed to amend his defence for the purpose of withdrawing his admission. See — ‘Hollis v. Burton, (H) (cit. sup.)’.
17. Taking into consideration the circumstances and the stage at which the defendants prayed for the amendment of their written statement, it cannot be said that the lower Court did not exercise its discretion properly in allowing the amendment. The revision, therefore, fails and is dismissed with costs. Counsel's fee Rs. 25/- If certified.
B/H.G.P
18. Revision dismissed.