Court way allow the amendment of plaint at any stage of the proceedings.

ORDER :- Plaintiffs 2 and 3 are the petitioners in this revision. The respondents are the defendants in the suit. The matter arises out of a suit for partition. A preliminary decree was passed on 11-8-1978. Final decree application was filed and pursuant to orders thereon, the Commissioner visited the properties for effecting division. According to the plaintiffs, it was at that time they noticed the omission to include a well in one of the survey numbers as available for division. This obliged them to file an application for amendment of the plaint under O.6, R.17 C. P. C., hereinafter referred to as the Code. to include the said well. This application has been dismissed by the Court below and this revision is directed against the order of the court below.

2. Mr. P. Sadasivam. learned counsel for the petitioner submits that the court below ought not have discountenanced the plea for amendment of the plaint the suit being one for partition and the court below erred in not accepting the explanation offered by the plaintiffs for non-inclusion of the well in the suit properties earlier. Learned Counsel would further submit that the Court below erred also in adjudicating on the merits of the amendment and has practically given a decision on the question of title to the well and has upheld the title claimed by the sixth defendant over the said well. According the learned counsel, this is not in Order and the Court below, while deciding an application for amendment, ought not to have adjudicated upon the merits of the amendment.

3. On going through the fair order the court below as well as keeping mind the principles governing amendments. I am obliged to sustain the submissions made by the learned counsel the petitioners. The court below has declined to accept the explanation offer by the plaintiffs for non-inclusion of the well earlier in the suit items, pointing out certain commissions and omissions which, according to the court below, would disentitle them from seeking the amendment at this stage. I am not able to appreciate and accept this reasoning of the court below. If, in fact, the plaintiffs were aware of the existence of the well, in the concerned survey number, it would be highly improbable that they would have consciously and wilfully omitted to include the same the suit items. Negligence or carelessness, or belatedness need not be put against a party seeking amendment if facts and circumstances of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in, the same lis. The explanation offered appears to be a plausible one and deserves acceptance. The rules of procedure are nothing but handmaids of substantive law and justice and the intention must be to dispense justice in the real sense and pure technicalities at the level of procedure shall not stand in the way of courts to recognise rights of parties, which they are otherwise entitled to. It is true, there are limitations on the wide powers of the court to amend the pleadings, but I do not find that any such limitation comes into play on the facts of the present case.

4. The Court below has also, as submitted by the learned counsel for the petitioners, adjudicated upon the merits with regard to the amendment sought for. It has investigated the tenability or otherwise of the case which would arise on amendment without even allowing the amendment, and it has opined that the sixth defendant must be the owner of the well exclusively. It is well settled that while deciding an application for amendment, the court is not supposed to go into the merits and demerits of the amendment and express an opinion one way or the other. That could be the subject matter of scrutiny after the amendment is allowed, applying the well accepted principles therefor, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the pa