9911796707
TMI Blog1937 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... utor of her will. On 22nd September 1919 Bhairabendra Narain Deb, the petitioner in Rule 209, instituted a suit for recovery of possession of the Bijni Raj against Raja Jogendra Narain on the allegation that the latter became insane when he was 15 or 16 years old. On 17th June 1920 Raja Jogendra filed a written statement in that suit alleging inter alia that he was not insane till 1904. The opposite party in these Rules was impleaded as a defendant in this suit. His defence was that Rani Abheyeswari acquired title to Bijni Raj by adverse possession for more than 12 years. He however did not say anything about the insanity of Raja Jogendra in his written statement. In August 1920 one Samarendra filed another suit at Goalpara which was subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed his written statement in the suit which was started by Purnendra on 25th October 1930. In these written statements Raja Jogendra's defence was the same as in the suits of Bhairabendra and Samarendra. In May 1931 the Bijni Succession Act was passed by which Raja Jogendra was declared to be the proprietor of the Bijni Raj and it was declared by that Act that Bhairabendra would become the owner of the Raj after the death of Raja Jogendra. Additional written statements were filed by Raja Jogendra in the suits pending against him on the basis of this Act. In 1933 certain preliminary issues regarding the effect of this Act on the pending litigation regarding the Bijni Raj were tried and the suit instituted by the executor to the estate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and then observed: In this case however not a scrap of paper has been placed before me to establish a prima facie case that on or before 23rd July 1902 the Raja was insane. Dr. Basak arguing the case for the Raja has contended that Ex. Z 64 in Suit No. 51 would show that the Court found in that case on the basis of that document dated 18th March 1903 that on that date at least the Raja was inflicted already with insanity and that being only eight months after the date of attainment of majority, this amendment would be allowed to enable the Raja to adduce evidence that at the date of attainment of majority also be was already an insane. I am unable to accept this contention unless any document is produced showing on the face of it that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercising this discretion the following observations of Lord Buckmaster must be borne in mind: All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by any means of amendment, the subject matter of the suit. 5. See the case in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P C 249 at pp. 216 and 217. Again however negligent or careless the first omission and however late the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us to indicate that if an attempt be made now in the present suit by the opposite party to have those documents produced in Court, there is no reasonable chance of those documents being produced in Court. 7. Under these circumstances we are of opinion that the learned Judge acted with material irregularity and was wrong in refusing the amendment prayed for by the petitioners. The result therefore is that these Rules are made absolute, the order of the learned Subordinate Judge rejecting the petitioners' applications for amendment which were filed before him on 17th November 1936 are set aside. The applications for amendment are allowed. The learned Subordinate Judge is directed to amend the pleadings in accordance with the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
