HARI NATH TILHARI, J. ( 1 ) HEARD Mr B. N. Ananthanarayana, learned Counsel for the revision petitioner and Mr. M. S. Javeen Ahmed, learned Counsel for respondents 1 to 8 and mr Shivaram, learned Counsel holding brief for Mr. N Dinesh Rao, learned Counsel for respondent No. 9. ( 2 ) THIS revision petition under Section 115 of Civil Procedure Code arises from the judgment and order dated 23. 10. 1998 whereby the Trial Court has refused to allow the amendment sought to be made in the written statement in Suit No, 11016/1994. The trial Court refused the amendment on the ground that the proposed amendment, if allowed, will take away the admissions made by said defendant No. 4 in his written statement. It is on this basis, the application for amendment has been rejected. ( 3 ) THE learned Counsel for the revision petitioner contended that the learned Court below wrongly assumed that amendment has a tendency to allow the withdrawal of any admission. The learned Counsel submitted that in the original written statement, the defendant very clearly admitted that Budan Baig by virtue of the fact that he made gift of five put of six shares in favour of his sons and retained with him one share of the property as owner. The admission is yet maintained. In the written statement, learned Counsel contended, what has been stated that Budan Baig gifted l/6th share of his property to each of his five sons i. e. , 5/6th share in favour of his sons and sons continued to be in possession of respective portion of the property as owners on the basis of the gift since April. 1972 when the oral gift was made. By amendment, learned counsel contended that an alternative approach has been made to the same facts raising the plea to the effect that the sons have prefected their title by adverse possession with respect of 5/6th shares in the property. As regards l/6th, defendants admitted, that it belong to Budan Baig and it may be separated. ( 4 ) LEARNED Counsel for the respondents contended that this amendment was made very late when plaintiffts' evidence was closed and defendants' evidence had to begin and this may amount to withdrawal of admissions. No plea of adverse possession was raised at the proper stage. So, Court below rigthly disallowed the application. ( 4 ) LEARNED Counsel for the respondents contended that this amendment was made very late when plaintiffts' evidence was closed and defendants' evidence had to begin and this may amount to withdrawal of admissions. No plea of adverse possession was raised at the proper stage. So, Court below rigthly disallowed the application. Learned Counsel further contended that revisional jurisdiction is limited to jurisdictional error and not an error simplicitor. ( 5 ) 1 have applied my mind to the contentions raised by the learned Counsel for the parties. There can be no dispute as regards basic principles of law under Section 115-CA is concerned that this Court's jurisdiction is confined to examining of jurisdictional error. If earlier to conditions are shown to be satisfied that the order impugned amounts to a case decided and that the order is such from which no appeal directly comes to the Court So far as present case is concerned, order disposing of the application for amendment, it is well settled, amounts to a case decided. It is also well settled that no appeal lies from an order allowing or refusing amendment. In this revision these two conditions no doubt are present. But the third condition to be looked into is whether there is jurisdictional error on the part of the court or it is a simple error. The present case comes within the framework of expression "has acted illegally and with material irregularity". It is well settled principle of law of amendment beginning from the days of Privy Council as per the decision of their Lordships of the Privy council in the case of Charan Das v. Amir khan, in which their Lordships of the Privy council has laid it down as under :"though there was full power to make the amendment, such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case. " ( 6 ) FOLLOWING that principle, their Lordships of the Supreme Court in the case of Piragonda hongonda Patil v. Kalgonda Shidgonda Patil and Ors2, laid down the law in approving the observations of Batchelor J. in 33 Bombay 644 at p. 655 (c) : "all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. . . but 1 refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as 1 understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general urge that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test thereof still remain the same; can the amendment be allowed without injustice to the other side, or can it not ?' ( 7 ) BEFORE I further proceed, it will be appropriate at this juncture to quote para 5a which has been sought to be added in the written statement :"5a. The 4th defendant submits that late Budan Baig made an oral gift of the suit schedule B property in favour of his five sons on 5. 4. 1972 and each of the sons got 1/6th share in the B schedule property. Sri Budan Baig even paid gift tax of Rs. 4. 500/- to the Income Tax Authorities on 30. 4. 1973 in respect of the oral gift made in favour of his sons. Sri Budan Baig retained 1/6th share for himself and he directed the tenant viz. , M/s. Muller and Phipps who was in occupation of the portion of B schedule property to effect payment of rent according to the gift made by him. 4. 1973 in respect of the oral gift made in favour of his sons. Sri Budan Baig retained 1/6th share for himself and he directed the tenant viz. , M/s. Muller and Phipps who was in occupation of the portion of B schedule property to effect payment of rent according to the gift made by him. The tenant M/s. Muller and phipps were paying rents to the firm's name M/s. Budan Baig and Sons had current account in B. 59 in Canara Bank. N. R. Road, Bangalore-2. The said account was being operated on the basis in terms of the Hiba made by late Budan baig. The tenant M/s. Muller and phipps vacated the premises and later the premises came to be leased to M/s. Batli Bai Private Limited, the 7th defendant herein. Even during the life time of Sri Budan Baig the rents were being credited to the current account in canara Bank and rents were being enjoyed by the five sons on the basis of the Hiba made by late Budan Baig. The plaintiffs are aware of these facts and they have deliberately filed this suit seeking larger share than what they are entitled. The plaintiff's claims are barred by limitation. The suit insofar as the share of 5/6th in the B schedule property is held by the sons of late Budan baig have become conclusive and to the knowledge of the plaintiffs these defendants have been enjoying their share openly and adversely. The claims of the plaintiffs in relation to the share of this defendant and other sons by virtue of the Hiba made by late Budan Baig is barred by adverse possession as it is enjoyed openly and notoriously for over 12 years to the knowledge of the plaintiffs. The suits filed by the plaintiffs is therefore, liable to be dismissed. " ( 8 ) IT will also be appropriate to quote from the original pleadings of defendant No. 4 the following paragraphs. Paragraphs 3, 4 and 5 of written statement are material :"3 It is submitted that the plaintiffs have not set out the facts correctly in the plaint It is false that the property No. 38, 2nd Cross, Kalasipalyam New Extension, Bangalore belonged to late budan Baig at the time of Mohammed khader Baig made an oral gift (Hiba) on 5. 4. 4. 1972 of a 5/6th share in said property bearing No. 38, in favour of his five sons, (1) Ibrahim Baig. (2) Mohammed Amanulla Baig, (3) Zakaulla baig, (4) Sirajulla Baig, and (5) Ashrafulla baig. giving each of the aforesaid sons a l/6th share in the property and put them in possession of their shares in the property. Late Budan Baig @ khadar Baig was in evidence of the facts of having given 5/6th share in the property to his sons by way of Hiba and having put them in possession has made a declaratory affidavit which is notstarised before Mohammed Hafiz ah, Notary Bangalore on 10. 8. 1972. 4. The aforesaid sons of Budan Baig alias Kadar Baig who were each given l/6th share in the property and were put in possession and enjoyment of their respective 5/6th share in the property. The property premises No 38. 2nd cross, Kalasipalyam New Extension belonged to the partnership firm M/s. Budan Baig and Sons in which Budani baig and his five sons had each a l/6th share. Late Budan Baig had at the time of his death only l/6th share in the property, this l/6th share in the property had tb be shared between mehrunnisa Begum, w/o late Budan baig and the five sons and five daughters of late Budan Baig in accordance with law. The defendants 2 to 5 have no objections for all the heirs of late budan Baig including the plaintiff staking their lawful share in the 1/6th share of late Budan Baig jn premises No. 38. 2nd Cross. Kalasipalyam New Extension. Bangalore, in accordance with Mohammedan Law. It is submitted that apart from his l/6th share in the property premises No. 38. 2nd Cross. New kalasipalyam Extension, Bangalore, there is no other movable or immovable property left by Budan Baig. The plaintiffs are aware of all these and did at no time make any statement or claim to the contrary. 5. The plaintiffs are not in possession of the suit schedule property and they are not entitled for any of the reliefs. The plaintiffs have not paid proper court fee on the plaint. The plaintiffs have to pay Court-fee under Section 35 (i) of the Court Fees Act since the plaintiffs are not in possession of the suit property. There are no movable left behind by Budan Baig. The plaintiffs have not paid proper court fee on the plaint. The plaintiffs have to pay Court-fee under Section 35 (i) of the Court Fees Act since the plaintiffs are not in possession of the suit property. There are no movable left behind by Budan Baig. " ( 9 ) A reading of these paragraphs 3. 4 and 5 reveals that according to the defendant no. 4 Sri Budan Baig who was the original owner of the property gifted 5/6th thereof to his five sons. According to the defendant, each son was given l/6th share and was given possession of the portion of their share sometimes in April, 1972 by way of oral gift and while putting them in possession, made a declaratory affidavit dated 10. 8. 1972. It further comes out from the pleadings that according to the defendant Sri Budan Baig alias Kadar Baig retained l/6th portion of the property with himself as owner and at that time of his death, he had only l/6th share in the property and defendant took a plea that l/6th share is definitely has been inherited by all legal heirs of sri Budan Baig and that can be partitioned. The defendant alleges that all defendants have been in possession by virtue of gift to their respective shares. By admendment it appears an additional approach is sought to be made to the same facts which have been asserted in the original written statement namely defendants claim their possession by virtue of gift of 1972 and their possession in their respective shares from that date of virtue thereof which they acquired on account of long standing possession by adverse possession and it belonged to them. No new facts are pleaded. Only on the basis of facts stated in paragraphs 3, 4 and 5 an additional approach has been made indicating that since defendants are enjoying the property by virtue of gift and claim of the plaintiffs is barred by limitation and by an adverse possession. In my opinion, it does not make out a new case. In the case of A. K Gupta and Sons Limited v. Damodar Valley Corporation, their Lordships have dealt with what is the meaning of "new case" in the context of amendment. In my opinion, it does not make out a new case. In the case of A. K Gupta and Sons Limited v. Damodar Valley Corporation, their Lordships have dealt with what is the meaning of "new case" in the context of amendment. It will be appropriate to refer to the observations of their Lordships of the Supreme Court in paragraph 7 onwards upto paragraph 10 :" (7) The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : weldon v. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendments does not constitute the addition of a new cause of action or raise a different cause, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation; see Charan Das v. Amir Khan, 47 Ind app. 255 : AIR 1921 PC 50, and L. J. Leach and Company Limited v. Jardine Skinner and Co. , 1957 SCR 438 : AIR 1957 SC 357 . (8) The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes Cropper v. Smith, (1884) 26 ch. D. 700 (710-711), and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amedment can be said in substance to the already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba. (1909) ILR 33 bombay 644 at p 651, approved in pirgonda Hongonda Patil v. Kalgonda shidgonda, 1957 SCR 595 (603): AIR 1957 SC 363 at p. 366 (9) The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill, (187,3) 8 cp 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and. of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis contituted by new facts. Such a view was taken in robinson v. Unicos Property Corporation Limited, 1962-2 All ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas": Dorman v. J. W. Ellis and company Limited, 1962-1 All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. (10) Now, how does the present case stand on these principles? Does the amendment introduce a' new cause of action or new case? We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action that is, the same contract. It introduce no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. "9. When I apply these tests, I find that in the present case also by amendment only an additional approach has been made on the basis of the same facts. A new case only means or new cause of action means new ideas based on new facts. But additional approach made to the facts pleaded will not amount to a new case. ( 10 ) IN this case by seeking for amendment there is no new case made out. Really an additional approach has been made to the facts which are already pleaded. The Court below misread the pleadings and the amendment application and wrongly opined that by amendment the admissions were sought to be revised. ( 10 ) IN this case by seeking for amendment there is no new case made out. Really an additional approach has been made to the facts which are already pleaded. The Court below misread the pleadings and the amendment application and wrongly opined that by amendment the admissions were sought to be revised. The misreading of the pleadings and on the basis thereof the Courts rejecting the application without due appreciation of the facts, that the Court below is said to have acted illegally in dealing with the application and rejecting the same. The amendment if it is not allowed, it may cause injury to the defendant and he may be saddled with the plea of constructive res judicata. The amendment involves determination of questions involved in the case in my opinion, amendment ought to have been allowed and the Court below illegally refused to allow. No doubt, delay in moving the same can be compensated by allowing costs ( 11 ) HENCE, I allow the revision subject to payment of costs of Rs. 1,100/- by the defendants to the plaintiffs before being allowed to amend the written statement. The costs may be paid to the learned Counsel appearing in the case or to the partly directly as it suits them either in the Court below or here. After the written statement had been amended, the copy of the amended written statement shall be supplied by the defendants to the plaintiffs. Further one more amended copy of the written statement shall be filed for the purpose of Court record in the Trial Court. The plaintiffs may file reply to the additional written statement and the Trial Court may frame any additional issue that may arise and give opportunity to the parties to lead evidence and decide. Revision is allowed. So far as costs of the revision are concerned, there is no question of revisioner-defendants being held to be entitled to costs. Costs are made easy. Revision allowed. --- *** --- .