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Civil Revision No. 615 of 1961, decided on14th June 1961.

O. VI, r. 17 & S. 115 Amendment in plaint changing character of plaint though not of suit‑Not allowable‑Decision to allow amendment governed by judicial discretion‑--Arbitrary discretion---‑Interference by High Court‑[Plaintiff praying for addition of name of defendants agent in suit relating to sale].

A. M. Fazlul Wahab for Petitioner.

A. F. M. Mesbahuddin for Opposite‑Party.

This Rule under section 115 of the Code of Civil Procedure is obtained by the defendant in Title Suit No. 24 of 1960 in the Court of the 1st Subordinate Judge, Dacca, against the order dated 11‑3‑61, allowing certain amend ment in the plaint on the ‑petition filed by the plaintiff of that suit.

2. Facts of the case, shortly stated, are as follows:

The plaintiff‑opposite‑party filed a suit being Title Suit No. 24 of 1960 on the 24th of February 1960, against the defendant‑petitioner for specific performance of a contract for sale of the disputed property which consists of land and a two- storeyed building comprising about fourteen rooms, to the plaintiffs on the allegation that on 21‑8‑1959, the defendant‑petitioner agreed to sell the suit properties as described in the schedule of the plaint for Rs. 7,200, and in pursuance of the said agreement, the defendant took Rs. 6,000 as earnest money in presence of witnesses and put her thumb‑impression on the receipt granted by her and delivered possession of the suit properties to the plaintiff on the same day as a part performance of the contract on her part promising to execute and register the necessary sale deed of conveyance on receipt of the balance of the consideration money within six months failing which the plaintiff would be entitled to get an appropriate deed of transfer at his option executed and registered through Court and the memorandum of agreement was reduced to writing and the defendant put her thumb‑impression therein in presence of some witnesses. As the plaintiff was always willing to pay the balance of the con sideration money and offered the same more than once and asked the defendant to accept the said balance of the considera tion money but the defendant‑petitioner did not pay any heed to it and did not execute and register a deed of conveyance in his favour, the plaintiff‑opposite‑party filed the above mentioned suit for specific performance of contract. The summons of the suit was issued in the same premises, subject‑matter of the contract, alleging that the defendant‑petitioner was residing there and fraudulently procured the service return of summons on her showing that the service had been effected in her presence at the above‑mentioned holding, though the petitioner never resided in Dacca for the last 14 years, and thereafter obtained an ex parte decree on the aforesaid allegation in the plaint. When the petitioner came to know about the ex parte decree, she filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and ultimately she was successful in getting the ex parte decree set aside and got the suit restored and filed a written statement in that suit totally denying the allegation of the plaintiff and the alleged contract alleging that she never entered into any contract; that she was for the last 14 years living in Calcutta and that there was no occasion for her to enter into contract with the plaintiff of the suit.

3. The plaintiff‑opposite‑party then filed an application for amendment of the plaint by introducing the words "through Premananda Banik, her accredited agent and authorised person" after the word "defendant" and the words "through Premananda Banik" after the word "defendant" in the last and 5th line, respectively, of paragraph 1 of the plaint; and in paragraph 2 of the plaint after the 16th line and before the 17th line the words "at the instance of Premananda Banik" to be added and in the 17th line after the word "And" the words "He caused" to be added in the said paragraph.

4. On receipt of the copy of the application, the petitioner objected to the proposed amendment alleging that it will totally change the nature of the suit and basis of the claims of the plaintiff. But the learned Subordinate Judge without considering the effect of this amendment and without considering the objection filed by the petitioner allowed the amendment by his order dated 11‑3‑61 and recorded the following order:

"Heard L. Ls. Prayer for amendment is allowed.

Amend accordingly."

His order does not show that he has applied his mind either to the effect of the proposed amendment or to the objection raised by the defendant‑petitioner, and he allowed the amendment as a matter of course. Therefore, it is contended by the learned Advocate for the petitioner that the learned Subordinate Judge acted illegally and with material irregularity in exercising the jurisdiction vested in him by law. To grant amendment is in the discretion of the Court but certainly the discretion is a judicial discretion and not an arbitrary one. If any arbitrary amendment is granted, it is certainly in the illegal exercise of jurisdiction, and we think the contention of the learned Advocate for the petitioner is of substance.

5. Mr. Mesbahuddin, the learned Advocate for the opposite party, contends that the amendment is more or less formal and it is matter of evidence and it does not change the nature of the suit. It is undoubtedly true that the suit is one for specific per formance of contract and after the amendment it will continue to be a suit for specific performance of contract. In that sense, there has been no change in the character of the suit, but the character of his claim has been totally changed. The claim of the plaintiff is based on the agreement directly with the defendant and payment is said to have been made to the defendant and the memorandum of agreement prepared and alleged to have been signed by the lady herself and the receipt of payment of Rs. 6,000 as a part of the consideration money was also said to have been signed by the lady herself by putting her thumb‑impression.

6. Now, the plaintiff comes with a case that the agreement was not with the lady herself, but with her accredited agent simply because in the written statement filed by the defendant she has stated that for the last 14 years she was not in Dacca and is continuously living in Calcutta and looking ‑after her property through her accredited agent, Premananda Banik and that is why the plaintiff has become anxious to introduce Premananda Banik as an accredited agent of the defendant, the present petitioner. This sort of amendment will totally change the character of the plaint, though not character of the suit, and such amendment will certainly prejudice the defendant in her defence which she has already filed in pursuance of the case set up by the plaintiff in his plaint.

7. The result, therefore, is that this Rule is made absolute with costs and the order of the learned Subordinate Judge against the amendment is set aside.

IDRIS, J.---‑I agree with My Lord the Chief Justice.

S. B. /A. H.

Rule made absolute.

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