1. At the stage of admission, the respondent is notified. Accordingly he has put in appearance through a counsel. Hence the matter is taken up for final hearing itself.
2. This Civil Revision Petition is preferred against the order dated 3rd Oct. 1981 passed by the learned II additional City Civil Judge, Bangalore, in O.S. No. 10358/80 rejecting an application (L.A. no. 8) filed by the plaintiff for amendment of the plaint. The learned Judge has rejected the application on the following grounds:
(i) that the suit filed is the one based on the common law right of lateral support and by the amendment, it is now being changed to the one based on the leasehold right. In other words, it is stated by the learned Judge that 'the cause action is being changed now to the infringement of contract of lease on the basis that the defendant is trying to destroy the part of the subject matter of the same'.
(ii) that until now it has been the case of the plaintiff that he is a tenant of the premises bearing No.83, now he wants to introduce a new case by way of the amendment that he is possession of the premises bearing No. 82 also as a tenant; that the sketch referred to in the plaint does not show verandah and open space a part of premises No.82, therefore altogether a new case is being set up by way of amendment.
(iii) that the amendment sought for is not necessary for the determination of the controversies between the parties which is based on common law right of lateral support and if the amendment is allowed, it would practically introduce a new claim, therefore, the amendment sought for is outside the purview of O. VI. R. 17 of the C.P.C.;
(iv) that the amendment is motivated and as such, it is vitiated by mala fides;
(v) that the withdrawal of the suit O.S. No. 10089 of 1981 filed by the son of the petitioner bars the petitioner to bring the suit in respect of the same subject-matter as the petitioner is a covenant along with his son and as such, he is prevented from brining a fresh suit on account of the withdrawal of O.S. No. 10089/81.
3. In this Civil Revision Petition, it is contended by Shri H. B. Datar, learned counsel for the petitioner that the learned Judge has not exercised the discretion judicially, that the principles governing the grant or refusal of amendment have been settled by the various decisions of the Supreme Court and these principles have been completely ignored; that it is not on the part of the learned Judge to hold that the plaintiff wants to add a new subject matter to the sit regarding tenancy; that the amendment sought for are classificatory in nature and are necessary for the proper understanding of the natural and scope of the suit and for proper adjudication of the controversies between the parties; that the learned Judge is not correct in holding that the application is vitiated by mala fides; that it is not open for the court to decide merits of the amendments while considering the question as to whether the application for amendment is or is not to be allowed; that amendments sought for do not either change the subject matter of the suit or the nature and scope of the suit; that no prejudice is caused to the defendant is taken away if the amendments sought for are allowed in as much as the suit is at the initial stage.
4. On the contrary, it is submitted by Sri. V. Krishna Murthy, learned counsel for the respondent-defendant, that the Civil revision petition is not maintainable since it is a matter which can be urged in the appeal against a decree passed in the suit; that there is no case for exercising the jurisdiction under S. 115 of the C.P.c as it can neither be said that the order is the one passed without jurisdiction which is not vested in the Court. It is also further contended that even if it is held that it is case which falls under Clause (c) of S. 115(1) of the C.P.C., there is no for exercise of jurisdiction under S. 115 of the C.P.C because the order refusing or granting the amendment cannot be said to fall either under clause (a) or (b) of the proviso added by the Code of Civil Procedure (Amendment) Act No. 104/76 to sub-sec, (1) therefore. on the merits of the case it is submitted that the plaintiff has based the suit on the common law right of lateral support and not on the lease-hold right; therefore if the amendment is allowed, there will be change in the subject-matter of the suit; that having regard to the various proceedings that have taken place between the parties prior to the filing of the application for amendment 1983 Karnataka/3 II G-22 and also the withdrawal of the suit O. S. 10089 of 1981 filed by the son of the petitioner, it is not all open for the plaintiff to claim lease-hold rights in respect of the suit property inasmuch as according to learned counsel, Jawaharlal, the son of the Petitioner is a covenant of the suit premises and by reason of withdrawal of O.S. No. 10089/81 by him (Jawaharlal),, he is in law disabled to bring another suit in respect of the suit property and the same disability is attached to the plaintiff in the present suit since being the father of Jawaharlal is a covenant of the premises; that having regard to the various proceedings in which the plaintiff not been successful, there are no bonafides in the amendments sought, for by the plaintiff that the amendments in question not only enlarge the subject matter of the suit but also change the very nature of the suit, in other words the amendments if allowed will introduce new cause of action; therefore the same are impermissible in law; that the amendments sought are not at all necessary for the purpose of deciding the controversies between the parties; that great prejudice will be caused to the defendant if the amendments are allowed and as such the trail court is justified and has acted well within its jurisdiction, in refusing to allow the application for amendment; therefore there is no case for interference under S. 115 of the C.P.C.
5. Having regard to the rival contentions advanced on behalf of the parties, the points that arise for considerations are:
(i) Whether the trail Court can be said to have exercised the discretion judicially keeping in view the principles governing the 'grant or refusal of amendment' in rejecting the application for amendment filed at the initial stage of the stuff?
(ii) Having regard to the proviso to sub-section (1) of S. 115 of the C.P.C., whether it is case for interference?
6. The finding of the learned trial Judge that the amendment sought for, introduces a new subject -matter entirely different from the one pleaded in the plaint does not appear to be sound on having regard to the plaint allegations. In the plaint, the petitioner has specifically stated that the is the tenant under the defendant of the premised described in the schedule. He has further stated in para-7 of the plaint as follows:
'The properly in the occupation of the plaintiff is shown in the enclosed map by the dark ink colour. It is very clear that there is only one lavatory for the entire premises and there is only one way along the sit out to reach the lavatory'.
In para-8 of the plaint, the petitioner has further stated that:
' the respondant is trying to evict the plaintiff by demolishing the property in the occupation of the plaintiff and also by demolishing the other portion of the property which are separated from the schedule properly by a common wall and which have common roof'.
The relief sought for in the suit is the one for permanent injuction restraining the defendant and their workers claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. In the schedule given to the plaint, the suit property is described as premises bearing Nos. 78 to 83 and boundary is also given. Along with the plaint, a sketch is produced denoting the suit property with dark ink line. It is not disputed before me that the amendment sought for by the plaintiff does not extend the suit property beyond the dark ink line shown in the sketch produced along with the plaint. In the written statement, the respondent has specifically stated that the plaintiff has not only been in possession of the premises bearing No.83 but he is also in possession of 3 rooms in the ground floor. It is not disputed and it is also borne out from by the notice issued by the defendant as per exhibit D. 2 produced along with the written statement that these rooms in the ground floor form part of the premises bearing no 82. The relevant portion of Exhibit D. 2 is as follows:
'You are a tenant in premises No.83, Hanies Road, Bangalore, Purchased by my client from Sri. K. Phoolchand No. 83 Hanies Road Consisting or 6 rooms. At the time my client purchased the premises you were found to be in the occupation of 3 rooms in the down stairs behind shop premises Nos. 84, 85 and 86 Hanies Road, which is actually part of No. 82, Hanies Road.'
Not only this, but in the reply statement filed by the plaintiff which is filed much earlier to the filing of the applications for amendment of the plaintiff, the plaintiff has made it clear as follows:
' However the plaintiff is in possession of the portion shown in the map as stated in para-7 of the plaint. The plaintiff is proceeding on the basis of that, the same is portion number 83 and he has been in occupation of the said portion for the last 40 years.'
It is also further stated in para-4 of the reply statement:
It is false to state that premises number 83 consists only of 6 rooms or to state that plaintiff has been residing in 6 rooms in upstairs along with 3 rooms in ground floor only. The plaintiff has been in occupation of 6 rooms in upstairs and 6 rooms in ground floor along with toilet, sit out, open passage and passage leading to toilet and the plaintiff is also exclusive possession of the water tank the passage is shown as main entrance in map produced by plaintiff and to stair case therein as clearly shown in map produced by plaintiff.'
In para-5 therefore, it is also stated as follows:
' As already been stated the plaintiff does not know which is called as 82 and 83. To the best of his knowledge the portion in his occupation shown in the map is no. 83 (eighty three).'
After filing the reply statement, the plaintiff has filed the present applications for amendment of the plaint in order to clarify as to which portion of the premises he is in possession as tenant and the number it bears. the amendments sought for are as follows.
'I substitute the following in the cause title in respect of address of the plaintiff:-
Plaintiffs : Sir J. Hiralal,Old No 27, corresponding New No. 82 Old No. 27, Corresponding New No. 83 Hanies Road, Bangalore.2. Add after para.2. The following para 2(a)' 2(a) The plaintiff is a tenant for the past more than 40 years., first under the vendor of the defendant and now under the defendant in respect of premises bearing Old. No. 27, corresponding New No.83 which is more fully described in the schedule. the plaintiff herewith produces Rent Receipts granted by the Vendor of the defendant for RS. 2,000/- and RS. 48 /- being dated 3-12-1977 respectively in respect of premises Old No.27, Haines Road and they are marked at Annexures A1 and A2. The plaintiff also submits that he is all along paying the charges in respect of water consumption and electricity power, to the tenancy premises and that he hereby produces receipts in respect of payments made by him towards water supply bill and electricity bill of the premises Old No.27 corresponding New No.82 and Old No.27 corresponding New No.82 and Old No.D.27 corresponding New No.83. These receipts are produced at Annexure-B series numbering 46 (forty-six) in all.
Add after para-5 in the plaint the following as para-5 (a) :-
The plaintiff is in possession of premises Old No.27 corresponding New No.82 along with premises Old No.D.27 corresponding New No.83 which is clear from the notice issued by the Advocate for the Vendor of the defendant dated 23rd January, 1978 (lawyer notice issued by Sri. S. Nanjundaswamy, Advocate at Annexure-C) and also lawyers' notices issued on behalf of the defendant dated 13-1-1979 and 13-11-1980 (lawyer notice issued by Shri S.V. Subrahmaniam, Advocate at Annexures D.1 and D.2). These notices are produced herewith at Annexures C, D1 and D2.
Add after para 7 of the plaint, the following as para 7 (a) :-
The sketch produced along with the plaint shows only the complete ground floor occupation which is bearing premises Old No.27 corresponding New No.82. The plaintiff is actually in possession of this ground floor in addition to upstairs premises bearing Old No.D27 corresponding New No.83 the amended sketch is produced herewith at Annexure-E. Add after para-9 of the plaint the following as para 9 (a) :-
The defendant has not come in legal and physical possession of any portion of the premises, which he has purchased by Registered Sale Deed dated 3-4-1978, registered as Document No.133/1978-79 in Book No.1 at pages 181 to 184 Vol. 1961 of the Sub-Registrar Shivajinagar, Bangalore, from Sri. K. Phoolchand; but has taken law into his own hands inspite of protests of plaintiff and threatens to demolish the wall which is the eastern wall of the tenancy premises on the strength of the licence L.P.No.845/79, which he has obtained from the City Municipal Corporation only for the purpose of H.R.C. proceedings pending against the plaintiff and other tenants. It is respectfully submitted that, this Licence itself was obtained by suppression of material facts and that he cannot implement the said licence granted by the Corporation unless and until he takes and gets vacant possession of the premises from the tenants who are in occupation of the entire building in due course of law. In fact, in all eight H.R.C. cases are pending in the H.R.C. Court and all those H.R.C. proceedings have been clubbed together. The defendant has not secured vacant possession of the premises (property) purchased by him in the above said sale deed and this fact is clear from the perusal of the recitals in the Sale Deed, a photostat copy of the certified copy of the Sale Deed is produced herewith at Annexure-F.
Add the following after para-13 of the plaint as para-14 under Caption Prayer in Place of Existing Prayer :
14. Wherefore the plaintiff prays for the judgment and decree of permanent injunction restraining the defendant, workers, agents and all other claiming under them from interfering with the peaceful possession and enjoyment of the schedule property namely premises bearing Old No.27 corresponding New No.82 and premises bearing Old No.D-27 corresponding New No.83 more fully described in the Schedule herein under :
Substitute the following schedule in place of existing one.
Premises bearing Old No.27 corresponding New No.82 in the Ground Floor consisting of a Kitchen, a Bath-room, lavatory, a dining-cum-sit out including a courtyard and premises Old No.D-27 corresponding New No.83 consisting of 3 twin rooms, used as bed-rooms in the upstairs being premises in the upstairs over the premises New Nos.84, 85 and 86 situated on Haines Road, Civil Station, Bangalore, and the open terrace portion one sit-out dining of No.82 bounded on the : East by : Nehrupuram;West by : Haines Road;North by : Marfamma Temple andSouth by : Private property.'
7. Thus it is apparent that the learned Judge has not correctly read the plaint. The conclusion that the amendments if allowed would introduce a new subject-matter is mainly based on the ground that the suit is based on the common law right of lateral support and not on the leasehold right. It is already pointed out that in para-8 of the plaint it is specifically stated that the defendant is trying to evict the plaintiff by demolishing the other portion of the property in the occupation of the plaintiff. Therefore, the plaint is not only based upon the common law right of lateral support but it is also based upon the possession of the plaintiff of the suit property as a tenant.
8. Now the question for consideration is whether the plaint as it stands with out amendment can be said to include the ground floor portion which is now admitted to be a part of premises No.82. In Exhibit D-2 itself, the defendant has admitted that the three rooms in the ground floor are in possession of the plaintiff and they are part of premises No.82. It is not disputed that even if the amendment is allowed, the suit property does not exceed the area shown by the dark ink line in the plaint sketch.
Having regard to the allegations contained in the plaint and also the reply statement read with the notice-exhibit D-2, I do not think that the learned Judge is right in holding that the amendments if allowed, would result in bringing the new area into the fold of the suit.
9. The reasoning of the learned Judge that since the son of the petitioner had filed the suit O.S.No. 10089 of 1981against the defendant and in that he did not claim that the portion forming part of the premises bearing No.82 also formed part of the lease-hold right and that suit was withdrawn; therefore, it was not at all open for the petitioner, being a co-tenant, to claim lease-hold right in the portion forming part of premises No.82. To some extent, this reasoning of the learned Judge has already been shown to be not correct in the earlier portion of this order by pointing out that the amendment does not have the effect of inclusion of the new area to the suit property. Even otherwise, the learned Judge ought not to have gone into this question at this stage because it is not permissible to go into the merits of the amendment while considering the application for amendment. Whether the petitioner is a co-tenant along with his son Jawaharlal, whether he is entitled to claim lease-hold right in the premises bearing No.82 having regard to the suit O.S.No. 1009/81 which is filed and withdrawn by his son Jawaharlal, are matters to be decided in the suit after a trial, as these matters not only require evidence but also have a bearing on the merits of the claim made by the plaintiff. Therefore, this question ought not to have been considered while dealing with the application for amendment. This preposition receives support from the decisions reported in AIR 1949 Mad 433 and (1979) 2 Kant LJ 39.
10. Another reasoning of the learned Judge that there are no bona fides on the part of the plaintiff in filing the application for amendment as he has failed in the other proceedings such as rejection of the interlocutory application for temporary injunction filed in the suit, and the confirmation of that order in the appeal filed by him in M.F.A. 413 of 1981, dismissal of the writ petition which is filed by the petitioner challenging the order of the commissioner to demolish the building; and also the dismissal of the application filed by the son of the petitioner in the other suit for temporary injunction and confirmation of the same in M.F.A. No.36 of 1981 by this Court No. doubt, prior to the filing of application for amendment certain proceedings have taken place; but, it is pertinent to notice that in all these proceedings except O.S.No.10089 of 1981 and the writ petition, nothing is finally decided as they are only interlocutory proceedings. As far as the writ proceeding was concerned, it had nothing to do with the relief prayed in the suit, in as much as the question involved in the writ petition related to the jurisdication of the commissioner of the Corporation to order for demolition of the building. Therefore, it did not have any bearing on the subject-matter of the present amendment and also the subject-matter of the suit. Regarding the withdrawal of O.S. 10089 of 1981 it has been already pointed out that it is a matter to be considered while deciding the suit. Therefore, it is not possible to agree with the contention of Sri. V. Krishan Murthy, that having regard to the various proceedings that have taken place between the parties, there are no bona finds on the part of the petitioner in seeking the amendment and it is intended to overcome the findings recorded in the previous proceedings. I have already pointed out that the said proceedings are interlocutory proceedings are interlocutory proceedings therefore they cannot have a bearing on the application for amendment much less on the subject matter of the suit.
11. Sri. V. Krishna Murthy, learned counsel for the respondent, has argued at length with regard to 'common wall' and the right of lateral support. It is contended that in the case of tenancy, there is no question of common wall between the tenant and the landlord. Learned counsel has brought to the notice of the Court several decisions in support of these contentions. In my opinion, it is not necessary to deal with these questions in this proceeding because they do not have any bearing on the question as to whether the amendments sought for should or should not be allowed. Therefore, I refrain from dealing with these questions.
12. An argument is also advanced with regard to the disability of Jawaharlal, the son of the petitioner, arising out of the withdrawl of the suit O.S.No. 10089 of 1981 and consequently, the petitioner is also stated to have become disable to obtain relief in the present suit. In support of this contention, learned counsel has placed reliance on the following decisions of the Supreme Court :
1. : 2SCR636
2. : 1SCR102
3. AIR 1966 SC 1427
4. AIR 1973 SC 204.
It has already been pointed out that for deciding the question as to whether the petitioner is a co-tenant of the suit premises along with his son evidence is required; further a decision on this question will have a bearing on the merits of the suit and the amendment, therefore, it is not necessary to deal with this contention at the stage of consideration of the application for amendment. Hence, I do not propose to deal with this question also.
13. Now I will consider whether the learned City Civil Judge has applied the principles governing the grant or refusal of the amendment. These principles are well settled. In the case of L.J. Leach and Co. Ltd. v. M/s. Jardine Skinner & Co., reported in : 1SCR438 , it is laid down as follows (at P. 362).
'It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.'
After referring to these principles in a subsequent decision reported in the same volume at p.365 (P.H. Patil v. K.S. Patil) : 1SCR595 , the Supreme Court has held that Batchelor, J., has correctly enunciated the principles governing the grant or refusal of amendment in Kisandas Rupchand v. Rachappa Vithoba (1909) ILR 33 Bom 644). The relevant portion of the judgment is as follows :
'We think that the correct principles were enunciated by Batchelor, J. in his judgment in the same case, viz., (1909) 33 Bom 644 at p.655 (c) where he said at Pp.649-650 :
'All amendments ought to be allowed which satisfy the two conditions (a) of 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 ............. but I refrain from citing further authorities, as in my opinion, they all laid down precisely the same doctrine. That doctrine, as I understand it, is that amendment 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 defendant 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?'
Bachelor, J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs.4,001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs.4,001. At that date, the claim for the money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim.
(ii). The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.'
In the same case the Supreme Court has also quoted with approval, the decision of the Privy Council, in Charan Das's case (AIR 1921 PC 50). The relevant portion is as follows :
'We accept as correct the decision in Charan Das v. Amir Khan, 47 Ind App. 255 : (AIR 1921 PC 50) which lays down that :
'though there was full power to make the amendment such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case.'
Again in a later decision in the case of Ganesh Trading co. v. Moji Ram, reported in : 2SCR614 , which is also referred by the learned City Civil Judge, but has not been correctly understood, it has been held as follows (at p. 486) :
'4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the short-coming can certainly be removed generally by appropriate steps taken by a part which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
5. 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 plain the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes 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 time has barred the remedy on a newly constituted cause of action that the courts should ordinarily, refuse prayers for amendment of pleadings.'
14. From the aforesaid decisions of the Supreme Court, the following principles governing the amendment, emerge :
(I) If a fresh suit on the amended claim is barred by law of limitation on the date of the application, the amendment should not normally be allowed.
(II) Amendment to be allowed, must be such that it should not cause injustice to the other side.
(III) It must be necessary for the purpose of determining the real questions in controversy between the parties.
(IV) Amendment should not be allowed if it is likely to cause such injury which cannot be compensated in costs such as a claim which is barred on the date of the application etc.
(V) Amendment should not be allowed if it has got the effect of taking away the legal right accrued to the other side by a reason of lapse of time.
The amendment sought to be introduced in the instant case does not contravene any of the aforesaid principles. However, it is contended by Sri. V. Krishna Murthy learned counsel for the respondent that in the original plaint it is not the case of the plaintiff that he has been the tenant of the part of the premises bearing No.82 and as such it amounts to introduction of a new case if the amendment is allowed. It has already been pointed out that the amendment does not introduce any change in the nature of the suit nor does it introduce a new cause of action. The suit remains to be the one for permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff and it continues to be the suit based on the possession of the petitioner-plaintiff and it continues to be the suit based on the possession of the petitioner-plaintiff as a lessee of the suit premises. Thus it does not either alter the nature of the suit or introduce a new cause of action. With regard to the inclusion of the area, it has already been pointed out that apart from the pleadings, specifically in the reply statement the petitioner-plaintiff has pleaded that he has been in possession of the portion which has now been clarified by the amendment and it is also supported by the contents of the notice (Exhibit D. 2) which is given by the defendant-respondent. Therefore, it is clear that the learned trial Judge is not right in holding that the amendment, if allowed, it changes the nature of the suit.
15. The reasoning of the learned trial Judge that the amendment is not at all necessary for the purpose of deciding the question in controversy between the parties, is also not correct. An ambiguity with regard to the subject-matter of the suit must be clarified at the threshold of the suit, so that the parties can proceed to take the trial with correct understanding of the subject-matter of the suit.
16. It is contended by Sri. V. Krishna Murthy, learned counsel for the respondent that at any rate the order under revision is not liable to be interfered with in as much as it cannot be said that the trial Court has either exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested in passing the order under revision. It is further submitted that unless it is brought under S. 115(1)(c) of the Code of Civil Procedure, in other words, unless it is established that the trial Court has acted in exercise of its jurisdiction illegally or with material irregularity in passing the order in question and it is further established that an irreparable injury would be caused to the plaintiff by disallowing the amendment, the order under revision cannot be interfered with.
16.1. No doubt, the Court by allowing or refusing to allow the amendment, cannot be said to have either exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested in it. Therefore it is necessary to consider whether the trial Court by disallowing the amendment, has committed an illegality or acted with material irregularity, and if so, whether it is a case for interference. It is submitted that an order allowing or refusing to allow amendment is a matter which lies within the discretion of the trial Court and as such it is not liable to be interfered with under S. 115 of the Code of Civil Procedure, as long as the discretion is exercised judicially on the basis of the reasons given therein. No doubt, as long as the discretion is exercised by the trial Court judicially, this court in C.P.C., does not normally interfere. It is only when the discretion is not exercised judicially and the reasons given for exercise of the discretion are unsustainable or are opposed to established principles of law governing the subject, such as being opposed to the principles laid down by the Supreme Court or by this Court on the subject (sic). Therefore the question that has to be considered is as to whether an error or illegality falling within the aforesaid categories committed by the Court while allowing or refusing to allow an amendment falls within the scope of S. 115(1)(c) of the Code of Civil Procedure.
16.2 In the instant case, the trial Court has not followed the principles enunciated by the Supreme Court regarding allowing or refusing to allow an amendment, and this has affected the ultimate decision in the case. If only the principles enunciated by the Supreme Court which have been adverted to earlier, would have been borne in mind by the trial Court while considering the application for amendment, which only seeks to remove the ambiguity relating to the subject-matter of the suit which is in the initial stage, there would have been no reason whatsoever for the trial Court to reject such an amendment. Thus, failure to bear in mind the principles enunciated by the Supreme Court on the subject of amendment, has affected the ultimate decisions. Supreme Court, in Sher Singh v. Joint Director of Consolidation, reported in : 3SCR982 has held as follows (at p.1345) :
'13. The position that emerges from these decisions is that S. 115 of the Civil P.C. empowers the High Court to satisfy itself on three matters. (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to have exercised jurisdiction; or (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from the conclusions of the subordinate court on question of fact or law. A distinction must be drawn between the errors committed by subordinate courts in deciding questions of law which have relation to or are concerned with questions of jurisdiction of the said Courts, and errors of law which have no such relation or connection. An erroneous decision on a question of fact or of law reached by the subordinate Court which has no relation to question of jurisdiction of that Court, cannot be corrected by the High Court under S. 115.'
(Emphasis is supplied)
From the above enunciation, it is clear that in exercising the jurisdiction, if the Court acts illegally that is, in breach of some provision of law or with material irregularity by committing some error of procedure in the course of the trial which is material and thereby the ultimate decision in the case is affected, the High Court can interfere with such an order under S. 115 of the C.P.C., as such a case falls under S. 115(1)(c) of the C.P.C. In the aforesaid decision, the two decisions of the Privy Council reported in AIR 1917 PC 71 (Balakrishna Udayar v. Vasudeva Ayyar) and (Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras) and the earlier decision of the Supreme Court reported in : 3SCR495 (Manindra Land and Building Corporation Ltd., v. Bhutnath Banerjee) : 1SCR102 (Pandurang Dhoni v. Maruti Hari Jadhav) and : 2SCR368 (D.L.F. Housing and Construction Co., Pvt. Ltd., New Delhi v. Sarup Singh) have been considered. Therefore, it is not necessary to refer to these decisions which have been relied upon by the learned counsel for the respondent. However it is necessary to refer to an another decision of the Supreme Court reported in : 4SCR136 (Keshardeo v. Radha Kishen), on which greater emphasis is laid by the learned counsel for the respondent. It is already pointed out that as per the aforesaid decision of the Supreme Court in Sher Sing's case : 3SCR982 if the ultimate decision of the Court is affected by reason of illegality or irregularity committed in exercise of its jurisdiction, this Court can very well interfere with such an order in exercise of its jurisdiction under Sec. 115 of the Code of Civil Procedure. In the case of M.L. Sethi v R.P. Kapur, reported in : 1SCR697 , the principles enunciated by the Privy Council in N.S.Venkatagiri Ayyanagr v. Hindu Religious Endowments Board, Madras have been reiterated as follows (at p.1344) :
' ............................. that S. 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction : (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court, is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law.'
16.3. On the basis of the decision of the Supreme Court reported in : 4SCR136 (Keshardeo v. Radha Kishen) it is contended by Sri V. Krishna Murthy, learned counsel for the respondent that having regard to the principles laid down therein, there is no scope for interference under S. 115 of the C.P.C. with an order refusing to allow an amendment. It is submitted that an illegality or material irregularity falling under S. 115(1)(c) of the C.P.C. does not enable the High Court to interfere with the order as long as such an illegality or material irregularity does not affect the jurisdiction of the Court. In this regard, it may be noticed that the aforesaid decision of the Supreme Court in Keshardeo's case : 4SCR136 has been considered by the Supreme Curt in its later decision reported in : AIR1959SC492 (Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi. In that case, after referring to the decisions in Keshardeo Chamria's case : 4SCR136 has been considered by the Supreme Court in its later decision reported in : AIR1959SC492 (Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi. In that case, after referring to the decisions in Keshardeo Chamria's case : 4SCR136 , Venkagiri Ayyangar's case and Balkrishna Udayar's case (AIR 1917 PC 71), it has been held by the Supreme Court as follows (at p. 497-98) :
'Thus if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure, which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested, then the power of interference under S. 115 of the C.P.C. becomes operative.'
It is also further held by the Supreme Court, in the very decision, thus (at p. 497) :
'Section 115 of the C.P.C., empowers the high court, in cases where no appeal lies, to satisfy itself on three matters : (a) & (b) ........ ........... ............. ............
(c) that in exercising the jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision .......... ........... ............ ................ ............... ........ .......... ....... ... Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.'
Again in the case of Maganlal Chhotabhai v. Chandrakant Motilal, reported in : 1SCR58 , while referring to the argument on behalf of the petitioners therein it was held that the Assistant Judge had acted illegally and with material irregularity, therefore the High Court had full power to revise the decree under S. 115 of the C.P.C. Consequently, the decree of the High Court was confirmed.
17. I have already referred to a decision of the Supreme Court in Sher Singh's case reported in : 3SCR982 in which the position emerging from the previous decisions of the Supreme Court has been stated. Therefore, the contention of Sri V. Krishna Murthy, learned counsel for the respondent, that however gross an illegality or irregularity may be, as long as it does not affect the jurisdiction of the Court, it is not open for this Court to interfere in exercise of its jurisdiction under S. 115 of the C.P. Code, cannot be accepted. The illegality or material irregularity committed by the lower Court in exercise of its jurisdiction is such that it has affected the ultimate decision in the case, it is open for this court to interfere in exercise of its jurisdiction under clause (c) of sub-section (1) of S. 115 of the C.P.C. (for short, 'the Code').
18. Lastly it is contended on behalf of the respondent that in the instant case, the requirements of either clause 9a) or clause (b) of the proviso to sub-section (1) of S. 115 of the Code, cannot be held to have been satisfied; therefore, it is not a case for interference under Section 115 of the Code. The proviso to sub-section (1) of Section 115 of the Code is added by the Central Act No. 104/76 and it is as follows :
'Provided that the High Court shall not, under this section, vary or reverse any other made, or any order deciding an issue, in the course of a suit or other proceeding, except where :-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.'
From the aforesaid proviso, it is clear that it deals with interlocutory orders only. The proviso places further restrictions in addition to the restrictions placed by clauses (a) to (c) of sub-section (1) and also by sub-section (2) of Section 115, in exercising the power of revision by the High Court under Section 115 of the Code, against the interlocutory orders passed by the courts subordinate to it. It is not necessary that in every case, the requirements of both the clauses (a) and (b) of the proviso must be satisfied. In a given case, if the requirement of clause (a) of the proviso is not satisfied, but nevertheless, the requirement of clause (b) of the proviso is satisfied, and it is established that the case falls either under clause (a), (b) or (c) of sub-section (1) thereof, and the order is not appealable, it is open for the High Court to interfere in such a case, under revision. The limitations on the power of revision placed by clauses (a) and (b) were nevertheless taken into consideration by the High Courts while exercising the revisional jurisdiction even before the amendment. What all the amendment does, is to transform those restrictions into a statute. Though in the instant case, the requirement of clause (a) of the Proviso to sub-section (1) of S. 115 of the Code is not satisfied, but it has to be seen whether the requirements of clause (b) of the proviso are satisfied. In this regard, it is contended by Sri. V. Krishna Murthy, learned counsel for the respondent, that as it is open for the appellate Court to correct the error if any committed by the trial Court in not allowing the amendment, it cannot be held that if the order in question is allowed to stand, it would either occasion a failure of justice or cause irreparable injury to the petitioner against whom it is made. No doubt, it is open for the appellate court to correct this error and allow the amendment; but in such an event, the case will have to be remanded for further trial and that would cause an irreparable injury to the petitioner. On the contrary, if the order is set aside the amendment is allowed as it is made out that the case falls under clause (c) of sub-section 91) of Section 115 of the Code, this will avoid remand and the parties will have a clear idea about the subject matter of the suit and that would also enable the parties to adduce evidence in support of their contentions raised in the suit. Thus, in the instant case, if the order under revision is allowed to stand, it would not only occasion failure of justice but it would also cause an irreparable injury to the petitioner against whom it is made. By allowing the amendment in question, no prejudice whatsoever is going to be caused to the respondent because the suit is at the initial stage and it does not affect any right alleged to have been accrued to the respondent. Therefore, I am of the view that the trial court has not exercised the discretion judicially in refusing to allow the amendment. Hence, there is a case for exercising the revisional jurisdiction under S. 115 of the Code.
19. For the reasons stated above, both the points are answered in favour of the petitioner. Consequently, the revision petition is allowed. The order of the trial court dated 3rd October, 1981, passed by the learned, II Additional City Civil Judge, Bangalore, in O.S.No.10358/80 is set aside and I.A.No.8 is allowed.
20. Before parting with the case, it is necessary to make it clear that the findings recorded with regard to the scope of the amendment sought for in the application-I.A.8, which is allowed by this order, cannot be taken to have been expressed finally as the same are intended only for the purpose of interlocutory application in question. As such, it is still open for the defendant to contend that the entire suit property as explained by the amendment, does not form the subject-matter of the lease.
21. As it was open for the plaintiff to include in the original plaint itself the amendment which he has now sought to introduce and as the application is filed nearly after one year of filing of the suit, even though the revision petition is allowed, in the ends of justice the petitioner must be ordered to pay the costs of the defendant.
22. Accordingly, the petitioner-plaintiff is directed to pay a sum of Rs.200/- to the defendant towards the costs, which has to be paid or deposited in the trial Court within one month from today.