D.V. Sehgal, J.@mdashThis judgment shall dispose of Revision petition Nos. 2973 and 3147 of 1985. The contesting parties in the suits from which these revision petitions have arisen are the same and the question of law involved in the impugned orders which are the subject matter of the same are also identical.
2. First the facts of Civil Revision Petition No. 2973 of 1955 in brief need be noticed. A civil suit was filed by the plaintiffs for possession by redemption of the property described in the head note of the plaint. It was alleged that predecessor-in-interest of the plaintiffs Shri Ganesh Dass was the owner of these properties and he mortgaged the same with Shri Prem Dass predecessor-in-interest of the defendant-respondent vide registered mortgaged deed dated 7.4.1952 for a consideration of Rs. 7,500/-. He delivered possession of the properties to the mortgagee and Shri Roshan Lal Puri defendant No. 1. The amount of mortgage money was to carry interest at the rate of 10 Annas per Rs. 100/- per month. The amount realised by the mortgage from the usufruct of the mortgage property was to be adjusted towards the principal amount and the interest. Claim made was to the effect that the mortgages having enjoyed the usufruct of the property for a long period of time the entire amount of the mortgage money as also interest stands adjusted towards the usufruct and the plaintiffs are entitled to get the property redeemed without any payment.
3. The above suit was filed on 30th January, 1933. When the suit was at the stage of the evidence of the defendants an application under Order 6 Rule 17 read with Section 151 of the CPC (for short the Code) was filed by the plaintiffs for amendment of the plaint. They stated that during the course of evidence in the suit it had come to light from a pass-book belonging to Shri Ganesh Dass respecting an account in Sahukara Bank, Majith Mandi, Amritsar maintained in the name of Adh Bhiwani Mills Company of which Shri Ganesh Dass was the owner that he had been making payments of the mortgaged debts to Shri Prem Dass mortgagee. The aforesaid press book had already been proved on the record in the connected civil suit No. 225 of 1985. It was claimed that Shri Ganesh Dass unknowingly made payment is excess of the actual mortgage amount and the interest due thereon. The plaintiffs, therefore, were entitled to recover amount from the defendant-respondents paid in excess on rendition of account. They sought to add para 4(a) after para 4 of the plaint to the following effect:-
That Lala Ganesh Dass had been making the payments towards the mortgage debt vide cheque apart from the usufructs of the property being realised by the defendants drawn on Sahukara Bank through his firm M/s Adh Bhiwani Mills Company and the details of the payments have already been submitted in the Court during the evidence of the plaintiffs and the copy of the account i.e. Pass Book is already on the file in another case titled as "Prem Dass v. Ashwani Kumar and others case No. 225 of 1985. On 20.5.1977, the firm M/s Adh Bhiwani Mills Company was dissolved and the same was leased out to Smt. Leela Wati wife of Lala Nand Kishore.
4. Further amendment sought for was in the prayer clause and the following words were sought to be added after the words "with costs of the suit:-
That the plaintiffs be also awarded a decree of the excess amount received by the defendants apart from the usufruct of the property and the plaintiffs are always ready and willing to make the deficiency of court fee, if any.
5. The defendants opposed the application. They alleged that the payments made by the aforesaid pass-book had no connection with the mortgage money. They related to the business transactions between Shri Prem Dass and Adh Bhiwani Mills on the basis of agreement executed in the year 1941 which is exhibited on the file. It was further maintained that the allegations were in the direct contradiction with the terms of the original mortgage.
6. Vide impugned order dated 6.8.1985 the learned trial Court dismissed the aforesaid application by taking the view that the amendment was being sought to be made in the plaint at the tag end of the case, when the parties had been litigating for more than five years and the case had become very old and it was yet to be determined how much amount, if any the plaintiff had paid to the defendants with regard to the mortgage amount. If the amendment was allowed the nature of the suit would be changed i.e. from the suit for redemption of the suit property to the one for recovery of money and the whole case would be started de novo.
7. The fact obtaining in the suit from which Civil Revision Petition No. 3147 of 1985 has arisen are almost identical The only difference is that in that suit the property which had been mortgaged by Shri Ganesh Dass predecessor in interest of the plaintiffs to Prem Dass predecessor-in-interet of the defendants is different and it is mentioned in the head note of the plaint. The same was mortgaged for a consideration of Rs. 5,000/- at the same rate of interest. It was again a usufructory mortgage. The claim in suit was for possession of the said property by redemption of the mortgage. It was stated that the mortgagee had enjoyed the usufruct of the property for more than the mortgage money and the interest accruing thereon and the plaintiffs are entitled to redeem the same without any payment Amendments similar in terms as mentioned above were sought to be introduced by an application under Order 6, Rule 17 read with Section 151 of the Code by adding paragraph 4(a) and addition in the prayer clause on the allegations that Shri Ganesh Dass had been making payment to Shri Prem Dass mortgagee from the account of his business by the name of Adh Bhiwani Mills maintained in Sahukura Bank as evidenced from the Pass book produced and brought on the record. This application was also dismissed by the learned trial Court vide impugned order dated 25-7-1985 on the strength of the reasons set out above.
8. I have heard the learned counsel for the parties. Shri A.S. Bakshi, learned counsel for the petitioner his vehemently contended that the factors which have weighed with the learned trial Court to disallow the amendments were not at all relevant. The delay in making an application for amendment should not be fatal to it. The purpose of amendment under Order 6 Rule 17 of the Code is to determine the real question in controversy between the parties and what has to be seen is whether the amendment is necessary for the purpose. He further submitted that the view taken by the learned trial Court that it would amount to de novo trial of the suit is wrong. He undertook in no uncertain terms that no other evidence in the present suit shall be produced by the petitioners in support of the averments which are introduced by way of amendment of the plaint. The pass-book to which reference has been made has already been produced in case No. 725 of 1985 and the same alone shall be adverted to. He further submits that the suit being one of redemption of mortgage a preliminary decree has to be passed and accounts have to be taken. It shall be at the stage of taking of accounts that it shall be finally determined whether any amount has been paid by the mortgagor to the mortgagee in excess of the mortgage amount and interest and if that is so a final decree in favour of the plaintiffs shall be passed not only for possession of the property but also for the amount paid in excess subject of course to payment of court fee thereon.
9. I find force in the submission of the learned counsel for the petitioners. At the present stage the suit has to be decided on the basis of the averments in the pleadings and the evidence already brought on the record and in case the plaintiffs succeed a preliminary decree shall have to be passed by the trial Court under Order 34 Rule 7 of the Code ordering that an account be taken of what was due to the defendants at the date of the decree for principal and interest on the mortgage, the costs of the suit, if any, awarded to him and other costs and charges. Order 34 Rule 9, ibid lays down that if it appears, upon taking the account under Rule 7 that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to retransfer the property and to pay to the plaintiff the amount which may be found, due to him and the plaintiff shall, if necessary, be put in possession of the mortgage property.
10. In the context of the above provisions of law it is dear that the amendment sought for does not change the nature of the suit. Since no evidence is sought to be produced in support of the averments which are now being introduced by way of amendments there shall be no prolonged or de novo trial of the suit also.
11. I, therefore, allow both the revision petitions with costs and set aside the impugned orders. I allow the applications for amendment on payment of Rs. 100/- as costs in each case by the plaintiffs to the defendants When the amended plaint is Sled the defendants shall be at liberty to file their written statements but neither any fresh issue shall be framed nor any evidence shall be allowed to be lead. The suit as it is shall be decided in each case in terms of the provisions of Order 34 of the Code. The parties, through their counsel, are directed to appear before the learned trial Court on October 1, 1988.
