JUDGMENT Bhattacharjee, J. 1. The provisions of law relating to amendment of pleadings as contained in Order 6, Rule 17 of the Code of Civil Procedure are couched in simplest possible terms reading as hereunder : "The Court may at any stage of the proceedings allow either party to alter or amend the pleading in such a manner and on such terms as would be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." 2. But however simple the words may sound to be difficulties very often arise in applying these provisions into practice, particularly because of the myrieds of case-laws clustering round these provisions and speaking in different voices not easy to reconcile. 3. The word "may" in the first part of the Rule has given rise to a deep-rooted impression that amendment is a matter solely in the discretion of the Court, though the discretion, as is obvious, must be exercised judicially on sound principles. But the impression is probably erroneous as it ignores the word" shall" in the later portion of the Rule. The Legislature using the words "may" and "shall" in such close proximity and in the same sentence cannot be taken to have used them interchangably and thus indiscriminately, unless we intend to go to that length, which we cannot, to presume that the Legislature was playing with words. We must, therefore, conclude that while the first part of the Rule vests the Court with discretion to allow amendment, the latter part makes it obligatory on the Court to do so. We say this on the high authority of the Privy Council in (1) Shamu Patter v. Abdul Kadir, ILR 35 Madras 607 at 612 where the provisions of section 149 of the preceding Code of 1882, corresponding to Order 14, Rule 5 of the present Code were being considered. That section 149, analogous to its successor in Older 14, Rule 5 in the present Code, read as hereunder : "The Court may be at any time......amend the issues or frame the additional issues on such terms as it think, fit and all such amendments or additional issues as may be necessary for determining the controversy between the parties shall be made." 4. And Sir Ameer Ali, speaking for the Board, observed that the first cart of the section leaves it in the discretion of the Court to frame such additional issues as it thinks fit, whilst the latter makes it imperative on the Judge to frame such additional issues as may be necessary to determine the controversy between the parties". Following this ratio, we must hold that once the proposed alterations or amendments appear to be "necessary for the purpose of determining the real question in controversy between the parties", the Court is obliged to allow them. 5. The relevant words in Rule 17 are "alter", "amend" and "amendments". The previous Code of 1882 in section 53 clearly indicated that the expression "alter" was otherwise wide enough to include even such alteration as would "convert a suit of one character into a suit of another and inconsistent character' and accordingly countermanded such conversion in express words in the proviso to that section. The omission of any such express prohibition in Order 6, Rule 17 of the present Code is likely to lend assurance to the view that under the present Code, even such conversion is not impermissible provided it is "necessary for the purpose of determining the real question in controversy between the parties". But a long catena of cases have established that while a party may have the right to "amend" only and thus to alter or vary the pleading, he can not make an "end" of the former pleading and thus replace the same or the case made out therein by a totally new and different one. 6. There is also an impression that an amendment cannot be allowed if the new claim or case sought to be made out by the amendment is barred by time on the date when the amendment is sought for. But this must not be taken to be a strait-jacket formula and cannot be accepted as a principle of universal application either in principle or on authority. Once the proposed amendments are found to be necessary to determine the real question in controversy, the power of amendment, as pointed out by the Supreme Court in (2) Gangabai, AIR 1974 SC 1126 at 1130, can be exercised "the law of limitation notwithstanding". Once the proposed amendments are found to be necessary to determine the real question in controversy, the power of amendment, as pointed out by the Supreme Court in (2) Gangabai, AIR 1974 SC 1126 at 1130, can be exercised "the law of limitation notwithstanding". If the Courts exist to do justice by deciding the real question in controversy between the parties, then it cannot but be the right or the parties to do, and the obligation of the Courts to permit to be done, all that may be necessary to ascertain that controversy and not to penalise a party because be or his lawyer could not properly draft a pleading spelling out the claim or the defence and the real lis, however gross the mistake or the blunder may be, unless there is something malafide or an intention to overreach the Court or unless such amendment cannot be allowed without causing such injustice or injury to the other party which cannot be compensated in money and there the question of limitation becomes very much relevant and pertinent. Not that a plaint can never be allowed to be amended if on the date of the amendment the new case or claim sought to be introduced by the amendment is barred by time. But that as such amendment may cause such injustice or injury to the opponent not remediable by costs, the Courts would, as pointed out by the Supreme Court in (3) Ganesh Trading Co., AIR 1978 SC 484 at 486-487, "ordinarily refuse prayers” for such amendment. 7. In fact, the recent trend, as it would be evident from the decisions of the Supreme Court in (4) Jai Jai Ram Manoharlal AIR 1969 SC 1267 and in Ganesh Trading Co. (Supra), appears to be that Court should allow amendment wherever it can and refuse it only when it cannot but. It appears that the very weighty observations of Lord Bowen in his dissenting judgment in (5) Crooper v. Smith, (1884)25 Chancery Division 700 at 71C-711, made as early as in 1884, have now been accepted to be the rule. (Supra), appears to be that Court should allow amendment wherever it can and refuse it only when it cannot but. It appears that the very weighty observations of Lord Bowen in his dissenting judgment in (5) Crooper v. Smith, (1884)25 Chancery Division 700 at 71C-711, made as early as in 1884, have now been accepted to be the rule. There also the same words occurring in Order 28, Rule I of the Rules of 1883 to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties", fell for consideration and the Law lord observed there could be "no amount of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct, if it can be done without injustice to the other party" and 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, it if can be done without injustice, as anything else in the case is a matter of right". 8. We dare not, and we also need not, endeavour to make any resume of the numberless precedents on the point for the purpose of the case at hand. But we would only add that any attempt to lay down any set formulas as to when amendments are or are not to be allowed might defeat the very purpose for which the Legislature enacted the provisions of Order 6, Rule 17 with words of wide amplitude. For our present purpose, it would be suffice to note that once the Court finds that the amendment proposed has reasonable and substantial nexus with the matter in issue between the parties, it must hold the amendment to be necessary for the purpose of determining the real question in controversy between the parties and must allow the amendment unless the Court is further satisfied that (a) the parties seeking the amendment is acting mala fide or fraudulently or attempting to over-reach the Court, or (b) the proposed amendment, if allowed, would cause such injustice to the party opposing the same as cannot be compensated in money. All the rules formulated by the Courts over all these hundred years and more prohibiting amendments follow from the one or the other of the two considerations noted above. It is not that alteration of the old and introduction of a new and inconsistent cause of action or of a case for cause of action already barred by time can never be allowed as a rule of law, but that it may not ordinarily be allowed if it amounts to depriving the opposite party of any right which may have already accrued due by lapse of time and thus causing to him such injury in injustice as can not compensated in costs. If there is no mala fide or fraudulent attempt to over-teach the Court on the part of the parties seeking amendment and no likelihood of irreparable injury to the opposite party, a party should not be refused amendment, provided the same appears to be necessary for the determination of the real controversy between the parties. The world of law is still dominated by enigmatic esoterism where only a trained lawyer can afford to move and the plethora of laws, both legislative and judicial, have made it such a quagmire that even about such trained lawyes, Vivian Bose, J., in the Supreme Court decision in (6) Seksaria Cotton Mills, AIR 1953 SC 278 at 281 had to observe that "the more learned their advisers were in the law the more puzzled they would he as to what advice to give". We must not penalise the party if his lawyer his blundered and could not or did not draft the original pleadings in a manner he ought to have. 9. Our view would find support from the observations of the Supreme Court in Jai Jai Ram Manoharlal (Supra), and also in Ganesh Trading Co. (Supra). In Jai Jai Ram Manoharlal (Supra, at 1267), the Supreme Court has observed as hereunder: "A party cannot be refused just relief merely because of some mistake, negligence inadvertance and even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that a party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of cost. The Court always gives leave to amend the pleading of a party, unless it is satisfied that a party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of cost. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." 10. In Ganesh Trading Co. (Supra, at 487-487), the Supreme Court has not ruled that the Court must always refuse amendment "if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings, an entirely new or inconsistent cause of action amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there”, but that "the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time". The Supreme Court proceeded to add that "even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none provided necessary conditions, such as payment of either and additional court-fees, which may be payable, or of costs of the other side, are complied with" and that "it is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should ordinarily refuse permissions for amendment of pleadings". 11. We have adverted to all these in some details as it was sought to be urged with good deal of force by Mr. Ghoshal, the learned Counsel for the respondent, that under the law no amendment ought to be allowed which would change the nature and character of the suit or the parries. We are afraid that such a proposition would amount too broad a statement. Formal, technical and legalistic approach towards amendment of pleadings has new been discarded by the Courts in favour of purposive approach and, as pointed out by the Supreme Court in (7) Pratap Sinah, AIR 1956 SC 141, the present tendency of the Courts is to deprecate technicalities so that substance may count and may take precedence over form. Formal, technical and legalistic approach towards amendment of pleadings has new been discarded by the Courts in favour of purposive approach and, as pointed out by the Supreme Court in (7) Pratap Sinah, AIR 1956 SC 141, the present tendency of the Courts is to deprecate technicalities so that substance may count and may take precedence over form. Let us, therefore, consider the amendments prayed for which have been allowed by the Court below and have been assailed before us. 12. In the Cause title of the plaint as it stood, the plaintiff was described as "J.G. Saggi, son of late Lahori Ram Saggi, 9, Kaveeta Apartments, 34, Arthur Bunder Road, Colaba, Bombay-5" and paragraph 1 of the plaint read as hereunder : "That plaintiff is the owner of the Suit Flat No. 56, Kusum Apartments, Shakespeare Sarani, Co-operative Housing Society Ltd, situated at 11, Gurusaday Road, Calcutta-19, P.S. Karaya, Dist. 24 Parganas, having purchased the suit flat on 14.3.77 in the name of Navjiban Trust (J.G. Saggi), a Trust for the benefit of the family of the plaintiff. Thereafter the Suit Flat was transferred in the name of the plaintiff and the plaintiff became the absolute owner of the Suit Flat." 13. The plaintiff averred that the defendant was allowed to occupy the Suit Flat as a licensee or permissive occupier on payment of licence-fee and he prayed for recovery of possession of the Suit Flat as he now required the same for his own use and occupation and that the defendant refused to vacate the same alleging falsely his right of tenancy therein under Navjiban Trust. The plaintiff averred further in paragraph 10 of the plaint that "the cause of action for the suit arose on 1.7.80" at the Suit Flat and "is continuing since then". 14. The proposed amendments by the plaintiff consist of four matters : (1) Insertion of the words "Managing Trustee, Navjiban Trust" after the name of the plaintiff is the cause title. (2) Deletion of the last sentence of paragraph 1. (3) Insertion of a new paragraph 1(a) after paragraph 1 as hereunder: "During the pendency of the suit, property in suit has been transferred by the Trustee in favour of Mr. J.G. Saggi personally." (4) Insertion of the words "and lastly on and from 14.4.84" in paragraph 10 after the words "on 1.7.80". (3) Insertion of a new paragraph 1(a) after paragraph 1 as hereunder: "During the pendency of the suit, property in suit has been transferred by the Trustee in favour of Mr. J.G. Saggi personally." (4) Insertion of the words "and lastly on and from 14.4.84" in paragraph 10 after the words "on 1.7.80". And all these four amendments have been allowed by the trial court by the impugned order. 15. As already noted, the case that the Suit Flat was purchased in the name of Navjiban Trust which was a Trust for the benefit for the plaintiff and his family and was thereafter transferred to the plaintiff was already there in paragraph 1 of the plaint as it stood. And if the plaintiff by these amendments seeks to describe himself in the cause title as the Managing Trustee of that Trust and wants to put precisely that the suit property was transferred to him personally during the pendency of the suit, he can not be said to have introduced a totally new or altogether an inconsistent case. As pointed out hereinbefore, an amendment, otherwise relevant, is not to be refused merely because the drafting of the original proceeding was inept, negligent, careless or that the proposed amendment is belated. "Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none" Ganesh Trading Co. (Supra at 486-487). If Saggi was the Managing Trustee of Navjiban Trust and the Trustee has during the pendency of the suit transferred the property to Saggi in his personal capacity, then the suit can be maintained, both by the transferor, Saggi the Trustee, as well as by the transferor, Saggi the individual. It the plaintiff Saggi intends to it continue the suit as the transferor, the Managing Trustee, and intends to insect that description in the plaint and to state with precision that the Suit Flat was transferred during the pendency of the suit to Saggi, the individual, we do not find any reason as to why the same can not be allowed. 16. Mr. Ghosal has, however, urged that a similar application for amendment was earlier filed by the plaintiff and though the same was allowed by the trial court, a Division Bench of this Court set the same aside. 16. Mr. Ghosal has, however, urged that a similar application for amendment was earlier filed by the plaintiff and though the same was allowed by the trial court, a Division Bench of this Court set the same aside. It appears that in that earlier application, being Annexure 'B' to the revisional application, out of the four amendments played for now, as listed hereinbefore, only two being matter No. 1 and matter No.4 as listed above, i.e., insertion of the words” Managing Trustee to Navjiban Trust" after the name and description of the plaintiff in the cause title and insertion of another date alleging further accrual of the cause of action in paragraph 10, were prayed for and allowed by the trial court. The Division Bench, however, held that in paragraph 1 as it stood then, the plaintiff having asserted that he himself being the owner in his personal capacity from before the date of the suit, could not be allowed to sue as Managing Trustee of the Navjiban Trust which, according to the averment in the last sentence of that paragraph 1, ceased to he the owner prior to the institution of the suit. The Division Bench pointed out that the plaintiff "has not asked for amendment of the last sentence of paragraph 1 which specifically states him to be the absolute owner of the suit premises". As we have read the judgment of the Division Bench, this was precisely what led the Division Bench to think the proposed amendment, without consequential amendment of the last sentence of paragraph 1 to be impermissible and the Division Bench accordingly set aside the earlier order of the trial court allowing the amendments after, however, making it clear that it did so "without deciding any points on merits or going through any other point" and after making it further clear "that the plaintiff will be at liberty to take" such further steps in the matter as he may be advised, It is in fact in the light of the observations of the Division Bench as noted above, that the plaintiff has filed the second application for amendment after attempting to clear up the apparent incongruities adverted to by the Division Bench, The earlier judgment of the Division Bench, therefore, far from standing in the way, might be said to have paved the way for the present amendments. We, therefore, find no reasons to hold that the amendments allowed by the trial court not to be permissible because of the earlier order of the Division Bench of this Court. 17. Mr. Ghosal has also urged that if these amendments are allowed, a new plaintiff, i.e., Saggi, the Managing Trustee, shall stand substituted for the did plaintiff, Saggi, the individual. We do not, as we need not, express any opinion on this question, as the only question with which we are concerned here is as to whether the amendments were rightly allowed and we have already indicated an affirmative answer, But we would only add that if at the trial it is found on the evidence that it was not a case of mere description or mis-description of the plaintiff and in fact a new plaintiff has been substituted in place of the old, the provision, of section 21 of the Limitation Act would be there to take due care of the situation. We accordingly decline the revision but do so without any costs. Records, if any, along with a copy of our judgment, to go down at once. Nayak, J.: I agree.