JUDGMENT
1. The question in this appeal is whether the plaintiff is entitled to recover from the 19th and 21st defendants the lands referred to in Exhibits II and III and if so, on , what terms. The learned District Munsif held that the plaintiff could recover them but only on re-payment of the consideration for which the sales to the said defendants were respectively made. The learned Subordinate Judge held that the plaintiff was not entitled to recover the lands at all, and the ground on which he proceeded was that the said defendants had made out their title to the lands under Exhibit IV. Exhibit IV refers to a sale on 11th November 1870. This sale was not by the widow but by the previous male owner. Each of these defendants in his written statement alleged that his pre decessor-in-title derived his title from the widow. If Exhibit IV is genuine. (as held by the learned Judge and we are bound by that finding) the question still is whether it refers to the land in question. That it may not refer to this land is indicated by two facts : (1) The extent of the land as given in Exhibit IV is 2 acres 10 cents : the extent given in Exhibit III is 95 cents and in Exhibit II, 195 cents. (2) The said defendants’ title-deeds refer to the widow and not to the male owner as being their predecessor-in-title, whereas if Exhibit IV referred to the lands now in question their predecessor-in-title would have been the last male owner. Under these circumstances the District Munsif did not allow the defendants to set up the case that they derived their title from the last male owner instead , of the widow. The lower Appellate Court, however, permitted the fresh defence to be raised and held in the result that the plaintiff had no cause of action in respect of the item of land forming the subject of this appeal.
2. It was argued before us that the Subordinate Judge was not justified in permitting the defendants to succeed on a case not set up in their pleadings and inconsistent with their original defence. On the other hand the respondents’ Vakil relied upon the admittedly wide powers of the Courts to permit amendments and reliance Was placed, on the following words used by Bowen, L.J., in a dissenting judgment in the case of Cropper v. Smith (1884) 26 Ch. D. 700 at pp. 710, 711 : 53 L.J. Ch. 891 : 51 L.T. 733 : 33 W.R. 60. :
Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other Division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. Order XXVIII, Rule 1, of the Rules of 1883, which follows previous legislation on the subject, says that, All such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right. It was said by Mr. Barber in his very powerful speech to us, You are taking away an advantage from the plaintiffs who have got judgment below, by making an amendment at the last moment. In one sense we should be taking away an advantage from them, but only an advantage which they have obtained by a mistake of the other side, contrary to the true bearing of the law on the rights of the parties.
3. We may respectfully agree with the, opinion so forcibly expressed by the Lord Justice in as far as to say that rules of procedure are not to be converted into mechanical tests by which the Courts may save themselves the trouble of deciding the real issues between the parties. The object of rules of procedure is to provide the best and most convenient mode in which the Courts may adjudicate upon the questions brought before them.
4. In the case before us, however, the Court of first instance decided not to permit the defendants to make out their fresh case. The lower Appellate Court differed from that decision. Had there not been difficulties in the way of upholding the lower Appellate Court’s decision we might have considered whether we ought to interfere with a discretion exercised by the lower Appellate Court. These are, however, not only the difficulties to which we have already alluded, but also the fact that if the defendants were to be allowed to change their defence after the plaintiff had adduced all his evidence, the written statement should have been ordered to be amended and opportunity ought to have been given to the plaintiff to adduce such further evidence as he may have desired. This was not done. Under these circumstances, we feel bound to interfere with the order made by the lower Appellate Court. The question remains whether we should permit the defendants to have the matter reconsidered with liberty to each side to adduce fresh evidence. We think that in the circumstances of this case, it would not be right to do so. The course might have been adopted by the learned Subordinate Judge. But we think it is too late to do so at this stage.
5. In our opinion the most equitable order will be to reverse the decree of the lower Appellate Court on this point and to restore that of the District Munsif.
6. The costs will be borne by each side throughout.
