JUDGMENT : R.N. Misra, C.J. - The Defendants in Money Suit No. 176 of 1977 pending before the Subordinate Judge, 2nd Court at Cuttack, have carried this revision challenging the order of the trial court allowing an amendment of the plaint by order dated 25-9-1982. 2. The Plaintiff, Bank of Baroda, filed the suit on 12-5-1977 pleading that Defendant No. 1, a firm carrying on business as general order suppliers with Defendant No. 2 as its proprietor, maintained a current deposit account with the Bank at its Cuttack Branch. On 8 different dates, Defendant No. 1 through Defendant No. 2 requested the Bank to grand advance of different sums to purchase bills drawn by Defendant No. 1 on one M/s. Utkal Equipments and Chemicals Ltd. A total amount of Rs. 10-391-82 was thus advanced against the aforesaid 8 bills and had been credidated to the current account of the Defendants and these amounts had been withdrawn from time to time by Defendant No. 2 on behalf of Defendant No. 1 by issue of cheques. In paragraph 12 of the plaint it was pleaded that the bills had been accepted by the drawee from time to time as and when presented, but the drawee did not honour any of those bills. In paragraph 13, it was pleaded: That the Plaintiff from time to time informed the Defendants that the bills were dishonoured by the drawee and demanded payment of the advances made by the Plaintiff against the aforesaid bills from time to time. But the Defendants in spite of repeated demands did not pay the amount advanced by the Plaintiff against the said bills. The Plaintiff, therefore, sued for recovery of Rs. 10,391.82 Paise along with interest of Rs. 6007.01 Paise, tota1ling Rs. 16,398.83 Paise. Along with the plaint, statement of accounts and copies of the relevant bills were furnished. Issues were struck in September, 1978. On 17-8-1982, the Bank produced certain other documents along with an application for condoning the delay in filing thereof. The learned trial Judge condoned the delay and accepted the documents subject to proof and relevancy. That very day, the first witness for the Plaintiff was examined. In course of examination, the Plaintiff, pressed for an amendment of the plaint and asked for adjournment of the trial. The actual application for amendment was filed on 21-8-1982. The learned trial Judge condoned the delay and accepted the documents subject to proof and relevancy. That very day, the first witness for the Plaintiff was examined. In course of examination, the Plaintiff, pressed for an amendment of the plaint and asked for adjournment of the trial. The actual application for amendment was filed on 21-8-1982. The Bank sought to introduce into the pleadings a bill purchased undertaking dated 6-5-1974 and sought to relay on its terms. Paragraphs 5, 6, 7, 8, 9, 10 and 11, which contained the major part of the pleadings, were asked to be substituted on the basis of the new document referred to. The Defendants filed an objection against the application for amendment. The learned trial Judge, however, has allowed the amendment on terms of costs of Rs. 100/-. 5. The document dated 6-5-1974 was admittedly in the possession of the Bank Nothing has been indicated in the application as to why and under what circumstances this document was withheld and no reference to it was made in the original plaint. The plaint as instituted was based on the cause of action of the drawee dishonouring the bills. The amendment seeks to introduce the plea of the Defendants' liability on the basis of the undertaking in the document dated 6-5-1974. While in the original plaint the Cause of action was dishonouring of the bills, the cause of action after amendment is sought to be the undertaking of the Defendants to make good the loss to the Bank. The document was in the custody of the Bank and the Bank must have known under what basis and arrangement the transactions had been entered into. The Bank is not an illiterate litigant and must be expected to have capable officers and law knowing persons to advise it. The written statement in the suit had been filed as early as 1978. Nothing new had happened in between 1978 & 1982 a period of 4 years-requiring the Bank to rise from its slumber to suddenly discover that the document dated 6-5-1974 was very material. 4. The trial has already begun and if at this stage the new story is introduced which is substantially different from the plaint as filed, the Defendants are bound to be prejudiced. 4. The trial has already begun and if at this stage the new story is introduced which is substantially different from the plaint as filed, the Defendants are bound to be prejudiced. It is true that merely delay is not sufficient to reject a prayer for amendment, but where there is no explanation for the delay and from the allegations made the court is not in a position to hold that the mistake is bona fide, merely to say that for a lawyer's mistake a client should not suffer would not meet the entire position. The Court is required to weight the inconvenience and prejudice to both the parties and judged that way, I am inclined to think that discretion has not been properly exercised. With the amendments carried, the plaint has a completely new look and the foundation of liability shifts from one point to another. This should not be permitted particularly when no justification is indicated as to why such a belated request was being made for amendment and accepting the request at this stage was very much prejudicial to the Defendants. The amendment is of material particulars and not evidence. Under Order 6, Rule 2, CPC pleading is to contain material facts and not evidence. If on the pleadings in the original plaint the document by way of evidence can come in, it is always open to the Plaintiff to do so. But if in the absence of material facts being pleaded the evidence cannot be introduced, the Plaintiff must suffer. I am inclined to think that the allowing of the amendment at this stage would be not appropriate exercise of judicial discretion. 5. Mr. Roy for the Plaintiff-opposite party pointed out that the costs awarded as a ccndition precedent to the amendment had been deposited and received by the Defendants' counsel. Ordinarily, such a situation would bring about an element of estoppel and the Defendants would no more be entitled to challenge the amendment. The cost was received on 22-10-1982 as would appear from the memorandum at page 140-A of the lower court's records and that is ten days after the filing of this revision application. The memorandum itself states that the revision has already been filed and the amount was being received without prejudice to the Defendants action of challenging the order of amendment. This Court in the case of Ananda Behera and Others Vs. The memorandum itself states that the revision has already been filed and the amount was being received without prejudice to the Defendants action of challenging the order of amendment. This Court in the case of Ananda Behera and Others Vs. Nilkamal Behera and Others considered a case on similar facts and held that the right to challenge the order would not be lost when the amount was received without prejudice. A division Bench of the Patna High Court in the case of Umesh Jha v. State of Bihar AIR 1956 Pat. 425 , took the view that where rent was being received with a note of "Without Prejudice" no rights were created by acceptance of rent. I am unclaimed to agree with the counsel for the Petitioners that in the circumstances acceptance of the costs would not give rise to a situation of estoppel and the Defendants' revision application cannot be dismissed on the ground that the awarded costs have been received. 6. The net result, therefore, is that the revision application is allowed and the order of amendment is set aside. The suit shall be tried on the basis of the original pleadings. It is a very old money suit. The trial Judge shall, therefore, have a direction to conclude the trial by end of January, 1983 at the latest. The amount of Rs. 100/- received by the Defendants counsel be paid back to the Plaintiff or deposited in the court within two weeks hence. Failing refund as directed, the amendment shall stand and this revision shall be deemed to have been dismissed. Final Result : Allowed