ORDER
1. This writ petifion under [SECTION] of the [ACT] is directed against the order, dated 10-10-1990 passed by the 1st Additional District Judge, Ghazipur, by which application No. 38-A moved by the plaintiff-appellants petitioners for amendment of the plaint in original [CASE NUMBER], was rejected. The said suit and the two other original suits Nos. 58 of 1981 and 226 of 1980 were consolidated and all the three suits were decided by a common judgment. The application seeking amendment in the plaint was moved before the appellate Court where the appeal was pending against the judgment rendered in the suit.
2. Before adverting to the controversy in the writ petition it is necessary to set out few facts. The property in suit originally belonged to [ENTITY] who died leaving behind certain heirs including a son [ENTITY] and his wife Smt. [ENTITY] who according to the petitioners were incapacitated and disabled to look after their affairs. The petitioner's case is that [ENTITY] left a will dated 7-9-1970 bequeathing his properties to the petitioners and requiring the petitioners to look after his wife and son. The name of tbe deceased's son was entered in the revenue papers only for consolation. It is further alleged that taking undue advantage of the invalidity of [ENTITY], one [ENTITY] fraudulently got a sale deed dated 17-7-1979 executed from him in respect of a part of the holdings without any consideration, hence the petitioners had to file [CASE NUMBER] for cancellation of the sale deed, against [ENTITY] and [ENTITY] and others. It is further alleged in the writ petition that one [ENTITY] and his mother Smt. [ENTITY] claiming to be the sister's son and sister respectively of [ENTITY] set up a will dated 15-6-1980 in their favour and filed [CASE NUMBER] against the petitioners for injunction restraining them from interfering with their possession. It is stated that they also set up a gift deed dated 23-5-1979 in favour of [ENTITY] wife of [ENTITY] aforesaid by [ENTITY] of some agricultural land. Further, one Smt. [ENTITY] alleging herself to be the sister of [ENTITY] filed a third [CASE NUMBER] against Smt. [ENTITY] and [ENTITY] and others above named for cancellation of the aforesaid will dated 15-6-1980 in favour of [ENTITY] and Smt. [ENTITY].
3. The trial court repelled the case of the petitioners which was based on the will and upheld the other three documents aforesaid said to have been executed by [ENTITY]. As stated earlier, the petitioners moved an application for amendment of the plaint before the appellate authority. A number of amendments were proposed in the application which have been summarised and noticed in the impugned order in the following manner:
" the plaintiff seeks to add Smt. [ENTITY] wife of [ENTITY] as defendant No. 3. Then he proposes to add a new para 6C in the plaint setting out the grounds for cancellation of the will deed dated 15-6-1980 executed by [ENTITY] if defendant No. 2 in favour of [ENTITY] and Smt. [ENTITY].
It is further proposed to add a new para 6D in the plaint setting out the ground for cancellation of a gift deed executed by [ENTITY] dated 23-5-1979 in favour of Smt. [ENTITY].
Thereafter it is proposed to add two more reliefs below para 12 of the plaint marking Ya and Ra by which the plaintiff proposes to claim a decree for cancellation of the aforesaid will deed and gift deed.
The plaintiff has further sought to substitute para 11 by deleting the old one as his para refers to the valuation clause of the suit. Thereafter the plaintiff proposes to add the date of knowledge of the gift deed and will deed in para 10 of the plaint. The plaintiff further proposes to add schedules at the foot of the plaint disclosing property affected by the aforesaid gift deed and will deed."
4. The defend ant-respondents filed objections opposing the amendment application on the ground, inter alia, that the plaintiffs were seeking amendment to completely change the cause of action by introducing new facts and cancellation of the gift deed and sale deed for which the original suit was never filed. A number of other objections were also taken which have been noticed in the impugned order and it is not necessary to repeat them here. As stated earlier, the amendment application was rejected by order dated 10-10-1990 against which the present writ petition has been filed.
5. For the petitioners it was contended that the amendments sought for were only consequential to the claim already set out in the plaint and introduce no variation of the cause of action, inasmuch as the alleged will, gift deed, etc. were sought to be challenged on the ground of incapacity of [ENTITY]. The learned counsel half-heartedly urged that no new facts were required to be introduced for deciding the controversy in respect of which the amendment was sought for. It was also urged that the amendment application was wrongly refused and the other side could have been compensated by awarding costs.
6. The provision contained in [SECTION], [SECTION] of the [ACT] provides for amendment of pleadings and says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and alt such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. In [PRECEDENT], the Supreme Court observed (at p. 366):
"All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendent an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same, can the amendment be allowed without injustice to the other side, or can it not.?"
Now appeal being a continuation of suit there is no bar to the amendment of pleadings in appeal, but amendment cannot be claimed as a matter of right particularly at the appellate stage. In [PRECEDENT], the Supreme Court ruled". It is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of the suits but also appeals. The appeal being a continuation of the suit new pleas are not considered."
7. I have carefully considered the contention advanced on behalf of the petitioners but regret that the same cannot be accepted . It must be borne in mind that in [CASE NUMBER] which was filed by the plaintiffs, the cause of action stated in the plaint was execution of the sale deed dated 17-7-1979 in favour of [ENTITY] by [ENTITY]. The petitioners claimed their title by virtue of the will in their favour executed by [ENTITY], the father of [ENTITY]. The findings recorded in the impugned order are that by the proposed amendment, the plaintiff's petitioners were seeking to add Smt. [ENTITY] as respondent No. 3 which is not permissible, inasmuch as Smt. [ENTITY] is not at all affected by the will set up by the plaintiff-petitioners. Yet another finding recorded is that by seeking to add para 6C in the plaint, the plaintiff-petitioners were attempting to unfold the reasons for cancellation of the gift deed dated 23-5-1979 executed by [ENTITY] in favour of Smt. [ENTITY]. Here again the plaintiff-petitioners propose to introduce new set of facts giving rise to new cause of action completely unconnected with the original cause of action on which the suit was instituted. It is settled that amendment necessary for the purpose of determining the real questions in controversy can be allowed. No amendment should be allowed merely because the other side can be compensated by costs. Where a party has been unsuccessful on a plea, a new plea by him cannot, in my opinion, be said to be necessary for the purpose of determining the real question in controversy. It is incumbent upon the court to see that amendment besides being necessary for the purpose of determining the real matter in controversy, must not cause injustice to the other side. Under the cover of seeking amendment it is not open to any party to substitute a new cause of action or to change the nature of the suit or to substitute the subject-matter of the suit except when the court thinks itjust and necessary. No attempt whatsoever was made before me to assail the findings of the court below that the proposed amendment did not have effect of changing the nature of the suit and cause of action. As already stated, the amendment sought for if alters the very foundation of the claim and the amendment is prima facie distinct independent of the original relief asked for, it cannot be allowed except for very exceptional reasons which are not forthcoming in the instant case. There is a categorical finding in the impugned order that the consequential relief and the set of new facts proposed to be added in paras 6C and 6D and the will dated 15-6-1980 and gift deed dated 23-5-1979, came to the knowledge of the plaintiff-petitioners in the year 1980. This is clearly borne out from paragraph 7 of the proposed amendment. The Court further held that the said relief for cancellation was barred as no such suit was filed within three years from the date of the knowledge. A valuable right has accrued in favour of the defendants, and the plaintiffs cannot be permitted to add the proposed amendments to the prejudice of the defendant-respondents which was going to cause irreparable injury and injustice to them. These findings were not questioned before me, inasmuch as no arguments were addressed on these aspects. A new case based upon the facts which were available to the plaintiff at the time of the original plaint and which were not added in the original plaint, cannot be permitted to be set up by way of amendment. Again where a fresh suit on an amended plaint would be barred by limitation, the court below is right in its view that the injury cannot be compensated by costs and the amendment in such circumstances deserves to be refused. Learend counsel for the petitioners failed to substantiate the plea that for the decision of the questions sought by the amendment new facts, evidence and investigation thereof were not required. There is also nothing to indicate that the petitioners had no knowledge of the facts which are now sought to be added. The amendment was refused by the court below for more than one reason as already stated earlier and the view taken by the court below, in my opinion, cannot be assailed on the ground of any legal infirmity. On the contrary, the order passed by the court below was just and proper.
8. For what has been stated above, the writ petition is without merit and is accordingly rejected. The stay order, if any, shall stand discharged.
9. Petition dismissed.