JUDGMENT 1. THIS application for amendment of the plaint arises under the following circumstances : 2. THE plaintiff's grand-father, ashutosh De died on October 21, 1938 leaving him surviving his widow and his youngest son Monmotho Nath De as his heirs, the plaintiff's uncle Raghunath and the plaintiff's father, Bholanath, having died earlier on September 16, 1930 and November 8, 1938 respectively. In 1937 Ashutosh distributed shares in public companies belonging to him among his son Monmotho and grandsons of his two pre - deceased sons. On September 9, 1937 Ashutosh De applied for letters of administration to the estate of raghunath and in that petition Ashutosh declared that he had distributed the shares in public companies belonging to him among his sons and grandsons. Ashutosh De left a Will dated April 9, 1907 the probate of which was issued by the Calcutta High Court in favour of his widow and Monmotho Nath de on February 19, 1943. On or about November 12, 1943 Suit No. 1530 of 1943 was filed by the said joint executors for partition and administration of the estate of Ashutosh De and for other reliefs. On July 10, 1944 a consent decree was passed in the said suit whereby the defendants in the said partition suit including Harendra, the present plaintiff, withdraw all the allegations made by them in their respective written statements and agreed to accept the shares as set out in the said decree. On February 17, 1950 there was an agreement between the plaintiff and his brothers in which some of the brothers of the plaintiff relinquished all their rights to any shares that may become recoverable from their uncle, monmotho. On September 19, 1950 a deed of partition between the plaintiff and his brothers also was executed. On March 21, 1956 the plaintiff's solicitors Messrs. R. K. De and Company wrote a letter to the defendant No. 1, stating that the latter had mot distributed among Harendra and his other nephews, several shares belonging to Ashutosh De which Harendra just discovered. On 20th December, 1956 the present suit was filed. Monmotho took out a summons to have the plaint rejected on the ground that the plaint did not disclose any cause of action. The application was heard and dismissed by Bachawat, J., as he then was. On 20th December, 1956 the present suit was filed. Monmotho took out a summons to have the plaint rejected on the ground that the plaint did not disclose any cause of action. The application was heard and dismissed by Bachawat, J., as he then was. The learned Judge, however, made an order that the plaintiff should furnish particulars of the new shares which Harendra discovered in or about march 1956 and also directed inspection of those documents. Another suit being suit No. 812 of 1957 was filed on 30th April 1957 by Harendra against monmotho and others whereby the plaintiff claimed share in respect of certain shares in a public limited company belonging to the estate of his father, bholanath De. On 26th August 1957 Harendra appealed against the order of Bachawat, J., dated 3rd June 1957 but the said appeal was dismissed on 31st August 1960. Thereafter, an application for leave to appeal to the Supreme Court was filed on 22nd November 1960 against the said order but such leave was refused. On 22nd December 1960 the said suit no. 812 of 1957 was dismissed for non-prosecution. The appeal No. 52 of 1961 was filed against the said order of dismissal but the court of Appeal dismissed the same on 7th August 1962 where the learned Judges observed that any opportunity given to the plaintiff to prosecute his claim against Monmotho would be to permit an abuse of the process of the Court. Thereafter the plaintiff on 18th August 1966 took out the present summons for amendment of his plaint by adding several specific shares in public limited companies belonging to the estate of Ashutosh De, which, according to him, were discovered by him between 20th May 1964 and 6th October 1964 and which Monmotho being the senior-most member of the family fraudulently suppressed to deprive the plaintiff of his shares. Mr. T. P. Das has strenuously opposed the said amendment on, the following grounds : (a) The history of the litigation would show that the properties of Ashutosh de had been finally distributed. There were admissions by Ashutosh De himself that all his properties, moveable and immoveable, were duly distributed among his sons and grandsons. The plaintiff having accepted all the properties under the consent decree dated 10th July 1944 should not be allowed to pursue the matter any further. There were admissions by Ashutosh De himself that all his properties, moveable and immoveable, were duly distributed among his sons and grandsons. The plaintiff having accepted all the properties under the consent decree dated 10th July 1944 should not be allowed to pursue the matter any further. No particulars have been given as to the discovery of the new shares and, as such, the amendment is vexatious and speculative. The plaintiff, unlike all his other brothers, is the only person who is indulging in these litigations and any amendment sought for in the plaint of the present suit would only encourage multiplicity of proceedings and harass his client Monmotho. From all these facts he has asked me to hold that the plaintiff has moved this application mala fide. (b) The suit was filed in 1956 and the alleged new shares were discovered in 1964 and the plaintiff has taken out the present summons only in July 1966. There is nothing to show how these new shares were discovered by him in 1964. Accordingly, he has argued that this application should be dismissed on ground of delay also. (c) The plaint has already in prayers (g) and (h) asked for discovery of any additional property which might belong to the estate of Ashutosh De and, as such, the present amendment is unnecessary. 3. THERE is great deal of force in Mr. Das's contention that the past history of this suit and the conduct of the plaintiff go to show that the plaintiff's conduct is not bonafide. But, in my view, in an application for the amendment of the plaint, it is premature to evaluate the plaintiff's conduct or the allegations against him, unless the malafide character of such allegations can be spelt out without any additional evidence. Further, it is well settled that in granting leave to amend the plaint, the court should find out whether any serious injury to the opposite party will take place on account of such amendment which cannot be sufficiently compensated for by costs or other terms. 4. THE plaintiff has rightly or wrongly instituted this present suit on the ground that he has been deprived of certain properties belonging to his grandfather which he is entitled to inherit. The plaintiff at all material times took it for granted that his uncle, Monmotho, duly disclosed all the assets of his grand-father. 4. THE plaintiff has rightly or wrongly instituted this present suit on the ground that he has been deprived of certain properties belonging to his grandfather which he is entitled to inherit. The plaintiff at all material times took it for granted that his uncle, Monmotho, duly disclosed all the assets of his grand-father. The plaintiff's allegation is that his uncle has secreted and/or misappropriated or converted to his own use various other shares of his grandfather's properties. In paragraph 17 of the plaint he has pleaded that sometime in April 1956 he discovered for the first time that his grand-father was the owner of several shares which were not previously disclosed by Monmotho. In the present application for amendment he has stated that certain other shares he has discovered subsequent to the institution of the suit belonging to the estate of Ashutosh De which were not earlier disclosed by Monmotho or known to him. Thus, this is not a case where the plaintiff's suit is wholly displaced by the proposed amendment. On the contrary, the amendment sought to be made is one which would determine the real controversy between the parties. There is nothing to show that a legal right has accrued to the defendant by lapse of time, because, prima facie, the fraud is supposed to have been discovered sometime in 1964 and the application has been made in 1966. In my opinion, the proposed amendment does not introduce a totally different, new or inconsistent case, nor the amendment changes the character or the fundamental structure of the disputes between the parties. It is true that the plaintiff's conduct prima facie shows that he is not diligent and has not acted bona fide in pursuing his claim against his uncle, but the correctness of plaintiff's and defendant no. 1's allegations against each other in the present suit cannot be finally decided until the hearing of the suit. It is true that want of bona fides may be inferred from delay in making the application. But, in my view, two years' delay in taking out the summons for amendment of the plaint, by itself, cannot be considered as a delay which would debar the plaintiff's right to amend the plaint. Mr. Das has referred me to (1) Pirgonda Hongonda patil v. Kalgonda Shidgonda Patil and others, 1957 SCR 595 . In my view this decision does not help Mr. Mr. Das has referred me to (1) Pirgonda Hongonda patil v. Kalgonda Shidgonda Patil and others, 1957 SCR 595 . In my view this decision does not help Mr. Das. It is decided in that case that the amendment should not be allowed where it introduces a new case or where the defendant has made a new claim set up for the first time after the expiry of the period of limitation. In that case the predecessor-in-interest of respondents 1 and 2 obtained a decree in ejectment against the respondent No. 3. But, while attempting to take possession of the properties in execution of the decree, he was obstructed by the appellants. But the decree-holder's application for removal of obstruction was dismissed by the court on April 12, 1947. He therefore filed the suit under appeal on March 12, 1948 under Order XXI, Rule 103 of the Code of Civil Procedure for a declaration that he was entitled to recovery of possession of the suit properties, impleading the appellant and respondent No. 3. The appellant as early as November 20, 1948 objected to the maintainability of the suit on the ground that he was not a party to the previous suit and that the plaint disclosed no cause of action against him. On March 29, 1950 when the suit was taken up for trial on the preliminary issue as to whether the suit as framed was tenable, an application was made by the plaintiff in that suit for the amendment of the plaint by giving further and better particulars of the claim made in the plaint. The trial judge rejected the application and dismissed the suit but the High Court on appeal allowed the application. On appeal to the Supreme Court, the Supreme court held that the amendment was rightly allowed by the High Court. It may be noted that the amendment was allowed by the Supreme Court although the petition for amendment was made two years after the plaintiff came to know of the necessity for such amendment. Mr. Das has also argued that the present suit was instituted on the ground of Monmotho's fraud which was discovered by him in April 1956. 5. THE proposed amendment refers to a similar act of Monmotho's fraud, namely, deliberate suppression of the properties in the estate of Ashutosh which, according to him, has been discovered by him in 1964. Mr. Das has also argued that the present suit was instituted on the ground of Monmotho's fraud which was discovered by him in April 1956. 5. THE proposed amendment refers to a similar act of Monmotho's fraud, namely, deliberate suppression of the properties in the estate of Ashutosh which, according to him, has been discovered by him in 1964. This fact along with the previous history of the case, Mr. Das has argued, shews that the present application for amendment is an abuse of the process of the court. In my view, this contention cannot be accepted. The cause of action in the original plaint appears to be an act of fraud in respect of a lot of shares in public limited companies the benefits of which the plaintiff did not get on account of alleged suppression of thorn by monmotho at the time of partition of the estate of Ashutosh. The discovery of this fact took place in November 1956. In the proposed amendment the plaintiff states that the discovery of another fraud by the same Monmotho took place between May 20, 1964 and October 6, 1964 and the shares discovered in 1964 were entirely different from shares disclosed in 1956. The correctness of the plaintiff's story of discovery of fraud in 1956 or in 1964 cannot be decided at this stage. Further the second discovery does not cover substantially the same ground as the first inasmuch as the dates of discovery and the subject-matter of the discovery are different. Accordingly, the decision in (2) Wright v. Bennett and another, (1948) 1 AER vol. 1 p. 227, cannot have any application to the facts of this case. There the plaintiff failed in an action in which he claimed damages for fraudulent misrepresentation against two defendants and also damages for negligence against one of them. The plaintiff then instituted a second suit against the same defendants covering substantially the same ground as the first, but based on an allegation of fraudulent conspiracy. On an application by the defendants to have the plaint struck out on the ground that the action was frivolous and vexatious, the court of appeal held that the proceedings were an abuse of the process of the court, and, as such, the plaintiff was prevented from pursuing the second suit. That was not a case for amendment of the paint. That was not a case for amendment of the paint. It was a case where two suits were filed and the facts and the allegation in the second suit were found to be more or less similar to the facts in the there suit. There the question of res judicata, abuse of court and principles of multiplicity of proceedings were involved. In my view, in the case of an application for amendment of the plaint different considerations have got to be taken into account as stated above. In this connection, reliance may be placed on the above Supreme Court decision where at p. 604, S. K. Das, J. approved the following observations of Bachelor, j. in Kisandas Rupchand's case, 33 bom. 644 : "the ultimate test therefore still remains the same : Can the amendment be allowed without injustice to the other side or can it not ?" 6. IN the instant case, in my opinion, the proposed amendment would determine the real issues between the parties and no accrued right of the defendant would be affected. It is true that in an extreme case and en patent and admitted facts an application for amendment may be refused on the ground that was made malafide. But where the sets of mala fide can only be adjudged or the evaluation of facts it is premature to hold that the amendment petition should be rejected on such ground. The probative value of an allegation or a counter-allegation in an affidavit cannot be adjudged on surmises and probabilities. The correctness of the plaintiff's alleged discovery in 1964 in receipt of a new lot of shares cannot be at this sage. To hold at this case that allegations of fraud as discovered in 1964 are made mala fide would be as good as to say that the facts of fraud of Monmotho as discovered by the plaintiff in 1956 in the original plaint are also frivolous. Mr. Das has drawn my paragraph 11 of the petition of Ashutosh, De for letters of administration in respect of the estate of Raghunath. Be where, according to Mr. Das, Ashutosh De stated that all the various movable properties had been distributed by him amongst his sons. It seems to me that Mr. Mr. Das has drawn my paragraph 11 of the petition of Ashutosh, De for letters of administration in respect of the estate of Raghunath. Be where, according to Mr. Das, Ashutosh De stated that all the various movable properties had been distributed by him amongst his sons. It seems to me that Mr. Das is not quite correct there because, Ashutosh De in that paragraph stated that "he allotted to each of his three sons various moveable properties in the shape of shares in the public companies. It is not stated there that Ashutosh De allotted all his shares in public companies to his descendants. In fact, this fact far from helping Mr. Das's client helps the petitioner in his contention that the particulars of the entire estate of Ashutosh De had not been disclosed or distributed. In my opinion, this not a case where he application for the amendment of the plaint should be rejected on the ground that it has been made mala fide. In one sense every suit that is filed against the defendant is vexatious so far as the defendant is concerned. But the vexatious or frivolous character of a suit can only be decided at the hearing of the suit, when there are disputed questions of facts. For ail these reasons, I hold that the amendment should be allowed and i therefore order that the paragraph 17 of the plaint be amended by adding the following : "(n) 100 ordinary shares of Bhalgora Coal company Limited being Nos. 10371 to 10240 and 89926 to 89975 of Rs. 10/- each. (o) 25 ordinary shares in Lansdowne jute Company Limited being Nos. 6576 to 6600 at Rs. 100/- each. (p) 100 ordinary shares in Lakurka coal Company limited being Nos. 6551 to 6650 at Rs. 10/- each, (q) 100 ordinary shares in National company Limited being Nos. 173901 to 174100 at Rs. 10/- each. (r) 25 ordinary shares in Orient jute Mills Company Limited (since amalgamated with cheviot Mills Company limited) being Nos. 16621 to 16645 at Rs. . . . . . each. " This amendment is to be incorporated in the plaint within a fortnight from the date when this order is drawn up. 173901 to 174100 at Rs. 10/- each. (r) 25 ordinary shares in Orient jute Mills Company Limited (since amalgamated with cheviot Mills Company limited) being Nos. 16621 to 16645 at Rs. . . . . . each. " This amendment is to be incorporated in the plaint within a fortnight from the date when this order is drawn up. The petitioner must pay the costs of this application to the defendant Monmotho math De and also the costs of any additional written statement that may be filled by the defendant No. 1. Certified far counsel. The petitioner will pay 5 g. Ms., as condition precedent within a fortnight after the reopening to be adjusted against the taxed costs.