The court should not inquire at the stage of an application for amendment of a plaint as to whether the plaintiff could succeed or not on the basis of the proposed amendment.

ORDER :- This Civil Revision has been filed by Mangal Dass, plaintiff in Suit No. P-3 of 1969, on the file of Shri Harkrishan Singh Malik, Subordinate Judge 1st Class, Delhi against the order of the learned Subordinate Judge, dated 11th October, 1971, dismissing an application for amendment of the plaint filed by the petitioner herein.

2. The petitioner was employed as a Head Constable in the Delhi Police Force. Departmental proceedings were instituted against him on the basis of some complaint. Ultimately, he was dismissed from service. He thereupon filed the suit out of which this Civil Revision has arisen for a declaration that the order of his dismissal was illegal, without jurisdiction, and against the mandatory provisions of law. He also prayed for arrears of salary and allowances, etc., from the date of dismissal. The suit was instituted by him in forma pauperis and he was adjudged as a pauper.

3. Subsequently, he filed an application on 18th May, 1971, seeking permission to amend his plaint by adding a paragraph as follows :-

"That even otherwise the plaintiff/applicant is entitled to the aforesaid decree for declaration to the effect that order of dismissal, dated 19-9-1966, passed by defendant No. 6 and confirmed by defendants Nos. 5, 4 and 2 respectively is of no consequence and liable to be set aside since the prosecution and action against the plaintiff/applicant was barred by time according to Section 42 of the Police Act, 1861, because the action and the prosecution of the plaintiff/applicant was not commenced within three months after the act complained of was alleged to have been committed by the plaintiff/applicant."

The ground which the petitioner wanted to take up by amendment of the plaint was that the action/prosecution against him was not commenced within three months of the act complained of, and, therefore, it was barred by time under Section 42 of the Police Act. The application was opposed by the defendants on the grounds that it was mala fide and frivolous, and that the amendment sought for was not essential for determining the real question in dispute between the parties.

4. Two contentions were urged on behalf of the petitioner (plaintiff). The first was that the Court should not inquire at that stage as to whether the petitioner (plaintiff) could succeed or not on the basis of the proposed amendment. The second contention was that on the merits of the new ground the petitioner (plaintiff) would really be able to succeed. By his order, dated 11th October, 1971, the learned Subordinate Judge, relying upon the decisions in Kanyilal v. Inspector General of Police Northern Range, Bareilly, U. P., AIR 1958 All 560, and in Sisir Kumar Das v. State of West Bengal, AIR 1955 Cal 183, held that Section 42 of the Police Act was not applicable to departmental proceedings and that the petitioner (plaintiff) was thus seeking to raise a new ground which was not available to him. As regards the other contention on behalf of the petitioner (plaintiff), the learned Subordinate Judge held that there was no explanation as to why the ground was not taken up earlier, and there was nothing to show that the ground was not taken for delaying the disposal of the case, and that since the proposed ground was not available to the petitioner (plaintiff), the application, was mala fide. In that view, he dismissed the application. It is against the said order that the present Civil Revision has been filed by the plaintiff, Mangal Dass.

5. Shri M. L. Rawal, learned counsel for the petitioner, contended that the learned Subordinate Judge committed a material irregularity in the exercise of his jurisdiction by disallowing the amendment on the ground that the plea or ground sought to be raised by the amendment was not available to the petitioner (plaintiff). The learned counsel argued that the learned Subordinate Judge was not to go into that aspect on the merits of the amendment at that stage, and that he erred in giving a findi