RAMENDRA MOHAN DATTA, J.

( 1 ) THIS is an application for the amendment of the plaint in an Administration Suit. The Suit was filed in 1965 and the written statement was filed sometime in December, 1965. In paragraphs 14, 15, 19, 29 of the plaint and in Annexure 'c' thereto it was pleaded in substance that the properties being premises Nos. 84 Bidhan Saranee and 8 and 12 Chittaranjan Avenue were purchased from out of the funds of the estate.

( 2 ) IN the written statement such allegations were denied and in substance the defendant Sachindra Nath Barik stated therein that the properties being premises Nos. 8 and 12 Chittaranjan Avenue, Calcutta on which a cinema house was built, solely belonged to him and he was in possession thereof all throughout and the same did not form part of the estate of the deceased.

( 3 ) THE plaintiff did not take any step to amend, her plaint so long but after her evidence had been taken on commission she had been advised to have the plaint amended to include a prayer for a declaration that the said two properties being premises Nos. 84 Bidhan Sarani and 8 and 12 Chittaranjan Avenue. Calcutta, belonged to and formed part of the estate of Kalipada Barik, deceased. In support of that prayer the plaintiff now seeks to introduce by amendment the averments made in paragraphs 19-A and 19-B of the draft plaint annexed to the petition by alleging, inter alia, that the said properties were acquired with the funds of the said estate although in the benami name of the defendant and/or any of the defendants and that the said Sachindra Nath Barik denies and is interested in denying that the said properties belonged to and formed part of the estate of the said Kalipada Barik, deceased. On that basis the amendment application has been made.

( 4 ) DR. Das appearing on behalf of the petitioner contends" that all the averments, which are necessary to plead benami, are already pleaded in the plaint but the prayer for declaration was not there and in order to get that declaration his client has been advised to make necessary averments as shown in red ink in paragraphs 19-A and 19-B of the draft plaint annexed to the petition herein. Mr. Roy Chowdhury appearing on behalf of Sachindra Nath Barik, on the other hand, contends that the right over the said premises at Chittaranjan Avenue was exercised by his client since at least as far back as in December, 1965, when in his written statement he asserted that the property-being premises Nos. 8 and 12 Chittaranjan Avenue belonged to his client and that he was in exclusive possession and enjoyment thereof, but in spite thereof the plaintiff allowed the time to pass by and after the period of limitation has expired she has now sought to make this application, accordingly, this application is barred by lapse of time and ought not to be allowed. Mr. Roy Chowdhury further contends that in so far as the land in premises Nos. 8 and 12 Chittaranjan Avenue is concerned, there is no pleading that the same was purchased by the money belonging to the estate and accordingly the amendment that is now sought to be introduced would bring in a new case in the plaint and at this stage this should not be allowed. Mr. Kapoor appearing on behalf of defendant No. 2 Sarajendra Nath Barik and in support of the petitioner contends that if paragraph 29 of the plaint, as originally drafted, is read along with the schedule being Annexure 'c' to the plaint, then it will be clear that the necessary averment relating to the purchase of the property being the land and premises Nos. 8 and 12 Chittaranjan Avenue, Calcutta, was already pleaded. To my mind Mr. Kapoor's contention should be accepted and I accept- the same.

( 5 ) THE question before me is whether the amendment which is now sought to be introduced will constitute, a new case or is it a different or additional approach to the same facts which are already there. By introducing the question of benami would it constitute a new case or was the nec

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