Amendment of a plaint is not permissible if it seeks to introduce a new cause of action and change the fundamental character of the suit.

P. K. MOHANTI, J.

( 1 ) THIS revisional application under Section 115 of the Code of Civil Procedure is directed against an order of the learned District Judge of Bolangir rejecting an application for amendment of the plaint.

( 2 ) THE petitioner and opposite party No. 4 filed Title Suit No. 79 of 1967 in the court of the Subordinate Judge of Bolangir for declaration of title to the suit lands which were under attachment in a proceeding under Section 145, Criminal p. C. They claimed ownership of the suit lands having purchased the same from one Indra Patel by means of a registered sale deed dated 12-2-1964 vide Ext. 1. The defendants denied the plaintiff's title and contended that Indra Patel had adopted defendant No. 3 as a son, and had executed a registered deed of acknowledgement of adoption in his favour on 2-12-1958. Subsequently, by about 1963 the said Indra Patel and defendant No. 3 developed misunderstanding as a result of which Indra was frequently living away from defendant No. 3. It was alleged that taking advantage of Indra's old age and the strained relationship between him and defendant No. 3 the plaintiffs obtained a fraudulent sale deed in respect of the suit lands on false representations without payment of consideration. The trial Court dismissed the suit holding that the sale deed (Ext. 1) was devoid of consideration and that indra Patel never intended to transfer title to the suit land in favour of the plaintiffs and as such the plaintiffs did not acquire any title by virtue of the sale deed. Aggrieved by this decision, the plaintiffs filed Title Appeal No. 58 of 1973 in the Court of the District Judge on 24-9-1973- About two years thereafter, that is, on 8-8-1975 the plaintiffs-appellants applied for amendment of the plaint by introducing a new case that they had acquired title to the suit lands by inheritance. It was alleged that Indra had three other brothers namely Kirti, ugre and Paleswar; that Paleswar had been given away in adoption and that by the time of Indra's death, Kirti and Ugre were his natural heirs and successors. The plaintiffs are the sons of Kirti and they claimed to have inherited the suit lands along with Ugre. There is no averment as to whether Ugre is alive or dead. Neither Ugre nor his heirs are parties to the suit.

( 3 ) THE prayer for amendment of the plaint was rejected by the learned District judge on the grounds that:

(i) it sought to introduce a new case, (ii) it would entail addition of new parties and investigation of new facts as to whether Kirti and Ugre were alive at the time of death of indra and whether the plaintiffs are the heirs of Kirti and Ugre and (iii) it was made at a very late stage. Aggrieved by this decision plaintiff No. 1 has come up in revision to this Court.

( 4 ) MR. G. Rath, the learned counsel appearing on behalf of the petitioner urged that in order to avoid multiplicity of proceedings and as no prejudice would be caused to the defendants the amendment should be allowed. In my opinion these are not normal tests for considering whether an application for amendment of a pleading has to be allowed. Ordinarily a plaintiff's case is restricted to the original cause of action pleaded, but to avoid multiplicity of proceedings, subsequent events may also be allowed to be pleaded during the pendency of the proceeding by amendment of the plaint. The plaintiffs sought for declaration of title on the strength of their purchase. By the proposed amendment they claimed title by inheritance. The amendment sought for would alter the very foundation of the claim and introduce a distinct and separate cause of action. It would not, therefore, come within the purview of amendment of pleading at all. On the other hand it would be substitution of a new suit in place of the old one. The amendment sought for appears on the face of it to be an afterthought and totally disjunct from the original plaint.

( 5 ) RULE 17 of Order 6 of the Code of Civil Procedure says that the C