A plaintiff cannot be compelled to amend his plaint against his wish.

1. Though the parties in these two appeals are different, the same common question of law arises in both of them and hence it will be convenient to dispose them of by one common judgment.

2. The material facts in these two appeals are as follows : Appeal No. 29 of 1949 arises out of a suit for redemption of a possessory mortgage created by Shankarlal (appellant) in favour of the respondent's father Gendalal on 19-4-1926. The property mortgaged was an agricultural holding whereof Shankarlal was a tenant under a Patta from the Jagirdar. Among other pleas it was contended on behalf of the mortgagee that the period of Shankarlal's Patta had expired and the Jagirdar thereupon granted a fresh Patta to the original mortgagee Gendalal and that accordingly Shankarlal had no right to maintain a suit for redemption. In reply to this plea it was contended on behalf of the mortgagor that the Patta obtained by the mortgagee must in law be deemed to be a renewal of the lease for the benefit of the original tenant. The learned Additional Munsif before whom the case came up for consideration gave effect to the defendant's plea and dismissed Shankarlal's suit.

3. Appeal No. 30 of 1949 similarly arises out of a suit for redemption brought by Deokishan who had mortgaged his agricultural holding with Poonaji respondent for a consideration of Rs. 200/-. As in the previous case the mortgage was with possession. Among other pleas it was urged in his defence by Poonaji that Deokishan held the mortgaged lands on a Patta for a term of years. On the expiry of the term of Deokishsn's Patta the Jagirdar granted a fresh Patta to Poonaji. In reply to this plea it was contended on behalf of Deokishan that the fresh Patta acquired by Poonaji must in the eye of law, be deemed to be for the benefit of the original tenant. Mr. Bnatnagar Munsiff Indore City who heard the suit gave effect to Deokishan's contention and decreed the claim for redemption.

4. An appeal was preferred in each of these cases against the decision of the trial court, in one by Shankarlal whose suit had been dismissed and in the other by Poonaji the mortgagee. Both these appeals came up for consideration before Mr. A.P. Tayal, Additional District Judge Indore. It appears to have been contended before him on behalf of the mortgagees that on the pleadings as they stood in the two suits the courts below should not have allowed the mortgagors to raise the plea that the fresh Patta obtained by the mortgagee in each case accrued for the benefit of the original tenant. This contention found favour with Mr. Tayal who set aside the decrees passed by the courts below in the two suits and remanded them to the trial court with the direction that they should be re-entered at their original numbers and disposed of in accordance with the law after the plaintiff in each of the two cases amended his plaint by pleading specifically that he relied on Section 90, Trusts Act and Section 64, T. P. Act. The two present appeals have been preferred by Shankarlal and Deokishan respectively against the remand order passed by Mr. Tayal.

5. Having heard the learned counsel for the parties I am clearly of the opinion that the learned Additional District Judge was in error in remanding the two cases to the trial court. It was stated before me by the appellant's learned counsel Mr. Newaskar that his clients did not want the remand. Nor did they want to amend their plaint. Nor was any such wish expressed by them before the learned Additional District Judge. In these circumstances the only course open to the learned Additional District Judge was to determine whether the contention put forward by the mortgagor in each case, that the fresh lease accrued for his benefit could or could not be entertained. In case he was of opinion that such a contention could not be raised on the pleadings he should have decided each case on that basis. No plaintiff can against his wish be compelled, to amend his plaint. There may be cases