The court emphasized that the introduction of a new case is not a ground for refusal of amendment as long as the defendants are not prejudiced in their defense, and allowed the amendment to avoid multiplicity of suits.

Sinha, C J—This application in revision is directed against the order dated 16-2-1952 passed by the Civil Judge Class II of Amravati refusing leave to the Plaintiff to amend his plaint in a suit for possession.

2. It appears that after the suit had been pending for about a year the Plaintiff applied for leave to amend his plaint by seeking to introduce a claim based on the sale deed of 27-7-1944 in his favour. That amendment was being prayed for in answer to the Defendants' case in the written statement based on the 'hiba-bil-iwaz' of Ismailbi.

3. This application was opposed on behalf of the Defendants chiefly on the grounds (1) that whereas in the plaint as originally framed the claim to the house was limited to a moiety share, in the amendment as prayed for, the claim would extend to the whole house; and (2) that a new case was being sought to be introduced by way of amendment. The Court below has taken the view that the amendment was sought at rather a late stage because the suit was fixed for evidence, and that the Defendants may be prejudiced in their defence.

4. In my opinion, the interests of the Defendants may be preserved by directing that the claim shall not be enlarged, by the amendment, to the whole house, but that it will continue to be confined to a moiety share therein as originally claimed, and that the Defendants will certainly be en-titled to amend their written statement so as to raise all the pleas available to them in defence to the action, after the amendment of the plaint is allowed. If these two reservations are made 1 do not see any reason why the amendment should not be allowed, specially when the amendment sought does not change the nature of the suit, though it may introduce a new case. But the introduction of a new case is no ground for refusal of amendment, so long as the Defendants have the opportunity of meeting that new case by amendment of the written statement and by leading evidence in support of that defence. So long as the Defendants are not prejudiced in their defence I do not see any reason to refuse the amendment, especially when it has the merit of avoiding multiplicity of suits.

5. The Plaintiff-Petitioner must compensate the Defendants by costs for having come to Court with the prayer for amendment at a late stage. Curiously enough, the Court below does not appear to have passed any order for costs in favour of the Defendants, even though it had refused the prayer for amendment. I would, as a condition precedent to the amendment, make the Plaintiff-Petitioner liable to the Defendants' costs-hearing fee Rs. 25 - before the amendment is allowed.

6. In these circumstances, the order passed by the Court below is set aside, and the amendment with the reservations indicated above is allowed in the plaint, subject to the payment of costs as already directed. As success in this Court is divided between the parties each party will bear its own costs in this Court.

Final Result : Allowed