ORDER [ENTITY], J.
1. The defendants are the petitioners here. They are aggrieved by the order of the learned Munsif dated the 6th Aug. 1981, by which an amendment in the plaint sought by the plaintiff-opposite party has been allowed.
2. The opposite party filed a title suit, being [CASE NUMBER] in the Court of the Munsif IV, Chapra, for a decree for specific performance of contract in his favour and for a declaration that the sale deed dated 16-10-1969 in favour of defendants 3 to 5 is illegal, void and ineffective. The suit after filing of the written, statement and framing of the issues was taken up for hearing, evidence being led by both the sides, after the close of which arguments were heard. During the course of argument the petitioners' counsel submitted that there has been violation of [SECTION] of the [ACT], and, therefore, the suit is fit to be dismissed. According to petitioners' counsel, the plaintiff-opposite party has failed to aver and prove that he was all along ready and willing to perform the essential terms of the contract which are to be performed by him. On this submission being made an application was filed for amendment of the plaint which was allowed by the impugned order. The amendment sought for in paragraph 10 of the plaint is as follows :
vejkr tks nQk ua- 10 vjth ukfy'k ds vUr esa tksMs+ tk;saxs A o eqnb vkt Hkh egknk ds 'kkks ds vuqdqy ofd;s eks- 1225@&:i;k vnk; djds o;ukek fy[kkus dksa rS;kj gS oks igys Hkh rS;kj Fkk oks Hkfo"; esa Hkh rS;kj jgsaxs A
3. It is submitted by learned counsel for the petitioners that by the allowing of this amendment they have been deprived of a valuable right as the suit itself is liable to fail without this amendment and this amendment really creates a right that is barred by limitation. According to the learned counsel for the plaintiff-opposite party no new case is being added, and the amendment sought is purely technical in nature which fact has been stated by P. W. 1 in his evidence in paragraph 4 of his deposition at the very beginning and on this point there was no cross-examination on behalf of the defendants-petitioners.
4. The decision of this case rests entirely on the interpretation of the two decisions, one of the Supreme Court and the other of the Allahabad High Court, which have settled down the law with respect to the effect of the absence of an averment that the plaintiff is ready to fulfil the essential terms of the contract, in the plaint and its effect which can or cannot be cured by amendment of the plaint. In this connection I would first cite the decision of the Supreme Court in the case of [PRECEDENT], paragraphs 2 and 5 of which are relevant, and they are usefully quoted below :
"2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice, Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
15. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not by itself constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of tune has barred the remedy on a newly constituted cause of action that the courts, should, ordinarily, refuse prayers for amendment of pleadings."
5. The above Supreme Court decision has been relied upon by a Bench decision of the Allahabad High Court in [PRECEDENT]. The Allahabad case is entirely applicable to the facts of the instant case. It has been held succinctly that even if the plaintiff brings in his evidence the ingredients of [SECTION], it only satisfies a par! of the section, leaving the other pan, that is, averment in the plaint, unfulfilled. This decision, therefore, held that the amendment should not be, allowed. While discussing the passages, quoted above, of the Supreme Court decision the Hon'ble Judges of the Allahabad High Court have held that the Supreme Court has made a distinction between an amendment, which seeks to bring a cause of action, which was conspicuously absent in the plaint, and a cause of action, which, though in the plaint, is defective, the amendment application can be allowed to rectify the defect, but, if a valuable right has accrued, the Court should be reluctant to allow the amendment. I am in respectful agreement with this decision. It says that to allow amendment would be to allow the plaintiff to bring a cause of action in the suit which was conspicuously absent in the plaint. I am also inclined to hold that merely because the plaintiff had led evidence that he was ready and willing to perform his part of the contract in the absence of any averment in the plaint would not justify the amendment.
6. Learned counsel for the opposite party cited a decision in the case of [PRECEDENT] in which similar amendment in the plaint was allowed. In this decision the amendment was disallowed by the trial court but allowed by the High Court on the ground that the amendment was sought at the earliest possible opportunity and refusal would lead to grave injustice. In the instant case the amendment sought and allowed was at a stage when everything was over and the trial had practically concluded. The law as laid down in the aforesaid decision of the Supreme Court had not been discussed in the Punjab case. Further, in the Punjab case the case of the defdt was that there was no contract at all. The amendment was only by way of abundant caution The decision in thy case of [PRECEDENT] has no application to the instant case because in the Calcutta case the amendment sought was disallowed on account of the fact that the plaintiff did not bring in the ingredients of [SECTION] of the [ACT] in his evidence. This case has, therefore, no application. In view of the above discussion in regard to the aforesaid two decisions and the situation in those cases I am not inclined to agree with the Punjab and Calcutta decisions aforesaid.
7. In view of the discussions made above this application is allowed and the impugned order allowing amendment of the plaint is set aside. There will be no order for costs.