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Judgment
Jackson, J.—The petitioner is plaintiff in O.S. No. 129 of 1922 Madura Sub-Court. He sued to set aside a sale-deed alleging inter alia that
2nd defendant took advantage of his youth.
The plaintiff has just attained his majority and the defendants have in collusion cheated him.
After filing this plaint, he had reason to believe that he was a minor at the time of the sale, and applied for leave to amend his plaint accordingly.
Leave has been refused by the Additional Subordinate Judge in the order appealed against, dated 11th April, 1923, on the grounds that the
application was not bona fide and that amendment could not be allowed under Order 6, Rule 17 of the Code of Civil Procedure, 1908. There was
two months'' delay between plaintiff''s learning his age and making this application, but I do not think that this interval suggests want of good faith.
The real question is, whether the amendment is such a variation of the original cause of action as to preclude a permission to amend under Order
6, Rule 17 of the Code of Civil Procedure. The terms of the rule are very wide and permit the Court to allow a party to amend his pleadings in
such manner and on such terms as may be just. It is well recognised as unjust if the defendant is confronted by way of amendment with contentions
foreign to the other contentions in the plaint : Venkatarama Rao v. Venkatalingama AIR 1922 Mad. 49. But in the present case a plea of a minority
can scarcely be said to be foreign to the plea of the plaintiff being unable to defend his interests because ""he has just attained majority."" No doubt
the new plea is much stronger (if established) but that is not the point. There is no objection to amendments which justly develop the original cause
of action so long as they do not vary it, and there is little variation between ""they imposed on me because I was just out of my minority,"" and ""they
imposed on me because I was a minor.
It so happens that a minor is presumed, so to speak, to be imposed upon from the bare fact of his minority and if plaintiff proves the fact, there
will be no need to go into the specific allegation of fraud. But nevertheless the essential character of the plea that plaintiff was led into this sale
owing to this youth remains unaltered.
I may remark that if this amendment is refused, plaintiff can still obtain leave to withdraw his suit and bring a fresh one on the plea of minority; so
the defendants are not much affected by this decision.
The ruling quoted by the learned Subordinate Judge Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249 hardly seems upon all fours with
the present case. There a contract of 1912 was set up and negatived, and the Court was held to have acted irregularly in permitting the plaintiff to
set up another contract of 1903. But in that very ruling it is laid down that ""full powers of amendment must be enjoyed and should always be
liberally exercised,"" p. 835.
It is also argued that the Court committed no material irregularity. But I think a refusal to exercise its lawful power so as to deprive the plaintiff of
what appears to be a vital plea amounts to material irregularity, and I certainly find no proof that the petition to amend was mala fide.
Accordingly I allow the revision petition and order the lower Court to permit plaintiff to amend his plaint as prayed. The counter-petitioners may
have their costs, one set.