Jwala Prasad, J.

1. This appeal arises out of a suit for partition of moveable and immoveable property alleged to belong jointly to the plaintiff and the defendants. The plaintiff is the uncle of the defendants. The property sought to be partitioned consists of a number of moveable and immoveable properties, the details of which are set forth in the schedules attached to the plaint. The defendants in their written statement took objection to the suit being maintained in the present form, inasmuch as all the joint properties of the family were not included in the schedule attached to the plaint. The defendants at that stage did not disclose the names or the nature of the properties said to have been omitted by the plaintiff. Apart from this objection the defendants also claim that most of the properties included in the schedule to the plaint were the self-acquired properties of their father, and that the plaintiff had no right to have the said properties partitioned. The learned Subordinate Judge in the Court below upon the pleadings of the parties framed the following issues for its determination:

No. 1. Is the suit maintainable in its present form

No. 2. Did the plaintiff and the defendants live in joint mess, and are the properties described in the plaint joint properties of the parties

No. 3. To what relief, if any, is the plaintiff entitled

2. After evidence was given by the parties, the Court, by its judgment dated the 27th July 1914, dismissed the suit, solely upon the ground that the plaintiff had omitted five properties, two of which were immoveable and three moveable, from the list of joint properties attached to the plaint for partition. The learned Additional Subordinate Judge did not, however, try the other issues Nos. 2 and 3. The plaintiff has appealed and seeks to have the order of the Subordinate Judge reversed and also asks to be permitted to amend his plaint in such a manner as to include the properties that were omitted from the plaint originally, and which were found by the learned Subordinate Judge to be the joint property of the family, and to allow the original suit to proceed to final determination.

3. The learned Subordinate Judge was of opinion that the action brought by the plaintiff was not maintainable by reason of the omission of the specified properties from the suit and that as a consequence the suit must necessarily be dismissed; and that the plaintiff must institute a fresh suit including all the joint family property, if he desires to proceed and enforce a partition of the joint property. The learned Subordinate Judge relied upon the rulings quoted in the cases of Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 and Jogendra Nath Rai v. Baldeo Das 35 C. 961 : 6 C.L.J. 735 : 12 C.W.N. 127 in support of his decision. It is true that in a suit for partition of joint family property by a Hindu, all the properties must be included in the action, and the reason for this proposition is, to save the parties from multiplicity of proceedings. On the other hand, if by inadvertence, mistake or fraud of any of the parties, some of the joint properties are not partitioned by the institution of the original suit, there will be no bar after the partition to have the properties, excluded at the first partition, divided when the mistake or fraud is discovered. All that is required in a suit for partition is that all the properties that are known to be joint family properties at the time the suit for partition is instituted, must be included in the action for partition. But the question here is, whether or not the suit should have been dismissed, or the Court should have allowed the amendment of the plaint, suo motu or at the instance of the parties, so that the partition might be effected in this action; and that the plaintiff should not be forced unnecessarily to bring another action for the same relief, and thus to cause the same evidence, if not more, to be given at the second hearing, and delay the separate enjoyment of the properties by the parties according to their shares. In a case like the present one it was, I think, the obvious duty of the Court to have allowed the amendment of the plaint and as amended to allow the action to proceed, including all the properties that were found to be joint family properties. Such power of amendment is vested in the Court by the provisions of section 153 of the Code of Civil Procedure coupled with Order VI, rule 17. The latter rule enables the Court to allow either party to alter or amend his pleadings at any stage on such terms as may be just, whereas section 153 empowers the Court to make itself all necessary amendments for the purpose of determining the real questions or issues raised in the action. This power is vested both in the original as well as in the Appellate Court. This view was taken in the case of Srimohan Thakur v. Macgregor 28 C. 769. I entirely concur with the view taken in that case, and I think that the learned Subordinate Judge should have allowed the amendment and proceeded to try the other issues in the case. It is not denied by the learned Vakil for the respondent that the Court had power to amend the plaint and that it would not have been improper to have done so in this case. His only objection to the amendment of the plaint is, that the respondent will be very much prejudiced if the plaint is allowed to be amended at this stage, when all the evidence has been given, whereas, if the suit is dismissed and a fresh suit is brought, he would be in a better position, for then he would be able to adduce fresh or additional evidence. I do not think that there is any substance in the contention of the learned Vakil for the respondent, or in the grievance that he complains of. The lower Court has only tried issue No. 1 and has dismissed the suit on the preliminary ground. The trial of the other issues, on the case being remanded, will proceed and the defendants will certainly be able to make any submission as regards those issues that they consider proper. We think, therefore, that the decree of the Subordinate Judge, as it stands, must be set aside and the case remanded to the lower Court to try the issues that were left by it undetermined, and to commence the inquiry at the stage at which it terminated by the order of the 27th of July 1914 on the plaint as amended, by the inclusion of the five denominations of properties that have been found by the learned Court below to be joint family properties.

4. Now, it remains to consider the terms upon which this order of remand must be made. It was entirely the fault of the plaintiff not having included all the properties in the suit for partition. The defendant-respondent was put to great expense and inconvenience in the lower Court in having to prove that the properties omitted from the plaint were joint properties, and I think that he is entitled to costs for all the trouble and expense he had to incur on account of his having to prove that the properties were joint. We assess these costs in the lower Court at a sum of Rs. 100. He is further entitled to the costs of this appeal, which again will be assessed at another Rs. 100. The order of the Subordinate Judge is set aside, and the case remanded, on condition that the plaintiff-appellant pays to the defendant-respondent the sum of Rs. 200 as costs both in the lower Court and of this appeal.

Atkinson, J.

5. I agree in the main with the views expressed by my learned brother. I only want to say one word on the legal aspect of the case. The learned Judge decided this case on the basis, that if a plaintiff in an action for partition of joint Hindu properties omits to include any item of the joint property in his list or in his schedule to his plaint, that then, per se, the action must be dismissed, and that no right of amendment exists, either in the Primary Court or in this Court, which would enable the error to be corrected and the action proceeded with in the ordinary way, and he relies upon the case reported as Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 in support of that view. In my opinion the widest power of amendment is given, not only to the Primary Court but to this Court, which enables the Court to try all matters properly in dispute between the parties. I think it would be a manifest injustice if the power of amendment did not exist in a case such as the present one. No doubt, the plaintiff must make compensation for the error. To avoid multiplicity of suits the law has endowed all Courts in all countries with just and most ample powers of amendment, and, in my opinion, this case is one in which the power of amendment should have been exercised by the learned Judge. In this view we are fortified by the decisions which have been cited, and by the admission made by the learned Vakil for the respondent on appeal, to the effect that he did not dispute that the right of amendment existed, not only in the lower Court, but also in this Court.

6. Accordingly we shall remit this case, subject to the amendment that the plaintiff be allowed to include in his schedule to the plaint of the joint properties the five denominations of properties omitted therefrom, as found by the Judge. The case will be remanded and will proceed before the learned Judge as if he had proceeded with the trial on the 27th of July. I agree with my learned brother as to the question of costs.

7. Should any other property be discovered to be joint, Court will be at liberty to include it in the plaint for partition.