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1958 DIGILAW 131 (RAJ)

Dhanna v. Ghisa

1958-04-18

J.N.KUNZRU, SHYAMLAL

body1958
The circumstance that gives rise to this revision may briefly be stated thus:— 2. The applicants put up an application before the Tehsildar, Rajgarh, on 13.12.56 against the opposite party under sec. 251 of the Rajasthan Tenancy Act with the allegations that Khesra 1268 belonged to the applicants, that they had been irrigating it in Khasra No. 1252 that this irrigation was done through a channel passing on the eastern side of Khasra Nos. 1261 and 1262 belonging to the opposite party, that of late the opposite party had started to obstruct the course of irrigation and hence it was prayed that suitable action be taken against them. To appreciate the point that arose before the appellate court, upon an application for amendment it may be stated here that the village Patwari prepared a site plan at the instance of the applicants in which the course of irrigation was shown on the Western side of Khasra No. 1561 and 1262. The claim was contested by the opposite party on the ground that Khasra No. 1268 was never irrigated from well No. 1252 and that the source of irrigation for Khasra No. 1268 was some other well. The trial court, after recording the evidence of the parties and inspecting the site allowed the applicants to carry water to their field through Khasra Nos. 1263 and 1262 and 1264 and 1261. i.e. on the Western side of Khasra No. 1261 and 1262. An appeal was filed against this decision by the opposite party before the Additional Collector, Alwar. It was in the appellate court that the applicants put up an application for amending their original application so as to substitute the Western side on Khasra Nos 1261 and 1262 in their claim as against the Eastern side originally stated in the application. This application for amendment was disallowed. The appeal was, however, allowed and the case was remanded for further enquiry in the light of observations contained in the judgment of the appellate court. This revision has been filed against this decision by the applicants. 3. This application for amendment was disallowed. The appeal was, however, allowed and the case was remanded for further enquiry in the light of observations contained in the judgment of the appellate court. This revision has been filed against this decision by the applicants. 3. The learned counsel appearing for the applicants has frankly stated before us that the propriety of the decision of the lower appellate court as far as it concerns remand of the case is not open to serious challenge In fact the order of remand appears to be necessary in the interest of justice as the trial which was held in the lower court failed to bring on record all essential material necessary for the proper adjudication of the controversy. The order of remand would enable the parties to remove this deficiency. 4. The only contention raised before us is this that the lower appellate court, while ordering remand should have allowed amendment of the application as prayed for by the applicants. The learned counsel for the opposite party has argued that this amendment would introduce a new case or would change the nature of the case. The principles on which amendments of pleadings are to be allowed have been laid down in Order 6 Rule 17 C.P.C. All such amendments as may be necessary for the purpose of determining the real question of controversy should be allowed between the parties. We may quote the memorable words of Bowen, L. J., touching on this point:— "It is a well established principle that the object of court 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 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 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." A court should allow the amendment of a pleading where there has been a clerical error, or a bonafide wrong description of property provided there is no injustice to the other party. An amendment for a clarification of the position taken up by a party should be allowed otherwise multiplicity of the proceedings would be the result. In the present case we find that after presentation of the application, asked the village Patwari to show the cause of the water in a site plan and it is in the evidence of the Patwari that the Western side of Khasra Nos. 1261 and 1262 was pointed out by them. In fact the order of trial court also gives effect to this position. To refuse an amendment under the circumstances of the case would hardly be conducive for a proper determination of a controversy. The applicants would be compelled to say that the present case as framed would not be prosecuted by them and that they would have to bring a fresh one in respect of the right that they claim. This cor fusion can be easily avoided by allowing the applicants to amend the appli-cation. No injustice is likely to accrue to the opposite party though their demand for costs would be reasonable. They have incurred expenditure in meeting the claim of the applicants and they would have to incur a fresh one in meeting the claim of the applicants that would arise after the amendment with regard to the Western side of Khasra Nos 1261 and 1262. We, therefore, allow this revision in part and direct that the order of remand pissed b\ the lower appellate court shall stand confirmed in the trial court, the applicants shall be allowed to substitute word West of the Khasra Nos. We, therefore, allow this revision in part and direct that the order of remand pissed b\ the lower appellate court shall stand confirmed in the trial court, the applicants shall be allowed to substitute word West of the Khasra Nos. 1261 and 1262 instead of the word East existing in part 3 of the application upon payment of costs of Rs 25/- to the opposite party.