Leave under Clause 12 of the Letters Patent could not be granted during the pendency of the suit to add an alternative cause of action.

( 1 ) THIS is an application for an amendment of the plaint. The plaintiff instituted this suit on 26-5-1952 against the defendant. It is alleged in the plaint, as filed, that on or about 30-3-1949, it was agreed by and between the plaintiff and the defendant by means of letters exchanged between the parties that the plaintiff would sell and the defendant would purchase 100 tons of imported continental paper upon certain terms specified in the plaint. It is then stated that the plaintiff had supplied the defendant and the defendant had accepted 40 tons 756 lbs. of the contracted goods, as a result of which a sum of Rs. 80,663/8/3 became due and payable, out of which the plaintiff had been paid a sum of Rs. 58,943/14/3 on or about 14-11-1949, but the defendant had failed and neglected to pay the balance. In the alternative the plaintiff stated that he had supplied the said goods to the defendant not intending to do so gratuitously and that the defendant was liable to compensate the plaintiff for the benefits enjoyed. By the amendment the plaintiff wishes to add a paragraph making an alternative case that if the agreement between the plaintiff and the defendant as mentioned in para 1 of the original plaint be discovered void, the defendant was bound to compensate the plaintiff for advantages enjoyed by the defendant under the contract.

( 2 ) I shall proceed on the footing that the plaintiff wishes to introduce an alternative cause of action and for that purpose requires fresh leave under Clause 12 of the Letters Patent. I might mention that in the original plaint leave under Clause 12 was asked for and obtained at the time of the filing of the plaint. Therefore, the short point that arises is as to whether it is possible at this stage to add by way of amendment an alternative cause of action during the pendency of the suit, a cause of action which requires fresh leave under Clause 12 to be granted.

( 3 ) IN -- 'laliteshwar Singh v. Rameswar Singh', 34 Cal 619 (A), a Special Bench of this High Court presided over by Maclean C. J. held that leave of the Court under Clause 12 of the Letters Patent had to be obtained before the institution of the suit. In that case the leave had been granted by the Registrar of this Court in its Original Side, but it was held that the Registrar had no jurisdiction to grant such leave and the defects could Rot be cured by grant of leave by a Judge at that stage of the litigation, namely, after the suit had already been instituted. The plaint was, there-lore, directed to be taken off the file.

( 4 ) IN -- 'rampurtab Samruthroy v. Premsukh Chandamal', 15 Bom 93 (B) it was held that the leave granted under Clause 12 of the Letters Patent was confined to the cause or causes of action set forward in the plaint at the time when leave was granted; hence the plaint could not be amended so as to alter the original cause of action or to introduce a different cause of action which would require leave under Clause 12 of the Letters Patent. The Courtcould not try such a different cause of action except in another suit duly instituted.

( 5 ) IN --'motilal Tribhovandas v. Shankarlal Chhaganlal', AIR 1939 Bom 345 (C), a suit was originally instituted in the name of a firm in which there were six partners. The defendant took the defence that he had not entered into any transaction with the firm but individually with one of the partners. Thereupon, the plaint was amended by substituting that partner in his individual capacity as the plaintiff. In the plaint as originally filed leave under Clause 12 had been obtained. But when the amendment was made no leave was asked for or granted. It was held that the Court had no jurisdiction to try the suit inasmuch as the leave originally granted related to a cause of action which had been completely changed. Kania, J. , said as follows :"the cause of action which is a right to sue vested in six persons alleged to be doing business together, is not the same as the