ORDER
G.B. Patnaik, J.
1. Defendant in a suit for declaration of right, title and interest and possession in respect of a piece of land measuring Ac. 0.14 decimals is the petitioner.
2. According to the plaintiff he had purchased the land from the ex-Ruler of Badamba on 1-6-1972 and has been possessing the same ever since the date of purchase. As the defendant tried to disturb his possession, the suit was filed. The defendant in his written statement alleges that the land in question is in the possession of the defendant which he has purchased from the very same vendor, namely, the ex-Ruler of Badamba and is in possession of the same with effect from the date of purchase which is 15-5-1972. It has been further alleged that the defendant has constructed his residential house on the said piece of land and further according to the written statement, the sketch-map attached to the plaint is incorrect.
3. In course of trial, the defendant filed an application for amendment of his written statement. The proposed written statement is for addition of another fact, namely, that the land in question was intermediary interest and stood vested in the State of Orissa by Notification No. 30303 dated 10-6-1968 and accordingly the plaintiff has no subsisting title to evict the defendant. This application for amendment having been rejected, the defendant has come up with this revision.
4. The only ground on which the amendment has been refused is that the defendant must be held to have known about the fact of vesting and, therefore, his non-mentioning the same in the original written statement disentitles him to take it by way of amendment. Further, in the opinion of the learned subordinate Judge, the proposed amendment would change the nature and character of the suit and the amendment, according to the learned Judge, is intended to obtain an adjournment from the Court. In my opinion, the grounds on which the learned subordinate Judge has refused amendment are not supportable in law.
5. As a general rule, leave to amend is granted so as to enable the real question in issue between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposite party, except such as can be sufficiently compensated for by costs or other terms to be imposed by the order. In the case of Tildesley v. Harper, (1878) 10 Ch D 393, Bramweli, L.J. said :-
“I have had much to do in Chambers, with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.”
It was observed in another case of Weldon v. Neal, (1887) 19 QBD 394.
“However negligent or cereless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.”
The Supreme Court in the case of L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 1957 SC 357, has also observed that it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. This being the position of law and on examining the proposed amendment, I am of the view that the proposed amendment would not wholly displace the plaintiffs suit nor would it introduce a totally different, new and inconsistent case. It cannot also be said in the facts and circumstances of the present case that the Application for amendment is not made in good faith. In this view of the matter, in my opinion, the learned subordinate Judge committed a gross error of law in refusing the defendant’s prayer for amendment of the written statement. I would accordingly set aside the order of the learned subordinate Judge dated 2-2-1985 and hold that the amendment of the written statement as sought for should be allowed subject to the condition that the defendant-petitioner pays a sum of Rs. 250/- (Rupees Two hundred and fifty) as costs to the learned counsel for the plaintiff-opposite party by 2nd of May, 1986, failing which this civil revision shall stand dismissed without further reference to the Bench.
This Civil Revision is accordingly disposed of.