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M. Sunder Lal Vs. Mt. Razia Begam and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All785; 152Ind.Cas.886
AppellantM. Sunder Lal
RespondentMt. Razia Begam and anr.
Excerpt:
- - 4. it may well be argued that the question of the payment of court-fee is not strictly a matter of controversy between, the parties so far as their rights are concerned......condition and that the additions should be removed from the house as it existed at the date of the suit. the learned munsif has allowed the plaint to be amended as prayed and the question is whether in so allowing the amendment the munsif has decided a case within the meaning of section 115, civil p.c.6. apart from authority it seems to me that an order amending a plaint is only one of the numerous orders that a court must pass before it finally decides a case by passing a decree. it was urged that there are authorities of this court in which it has been definitely held that where an order passed marks the conclusion of a definite stage in a suit, that order should be treated as a case decided and a revision would be maintainable. wide language is liable to lead us astray. the facts of.....
Judgment:

Sulaiman, C.J.

1. This is an application in revision by one of the defendants from an order of the Court below allowing a certain amendment asked for by the plaintiff. The plaintiff had brought a suit for possession of a half share in the house in dispute against the defendants of whom the defendant-applicant alleged to be in possession as a trespasser. It was pleaded in the written statement that the Court had no pecuniary jurisdiction inasmuch as the value of the half-share claimed was more than Rs. 5,000. On this the plaintiff applied for an amendment of the plaint expressly stating that she did not want possession of the half share of the house as it stands, but only for the possession of the half share of the house as it stood before the alterations made by the defendant and for the demolition of the superstructures recently put up. It is not necessary to consider in this case whether the plaintiff is entitled to the relief in the modified form in which she has claimed. If it turns out that the value of the subject matter in dispute even after the amendment has been made is in excess of the pecuniary jurisdiction of the Court below, it would be open to the defendant to take the plea of want of jurisdiction afresh.

2. A preliminary objection is taken on behalf of the respondents that no revision lies inasmuch as no case has been decided. The Learned Counsel for. the defendants-applicants relies on a number of rulings of this Court in support of the contention that the revision should be entertained. The first case is that of Poran Lal v. Rup Chand : AIR1931All761 decided by a Bench of which I was a member. In that case there were many irregularities in the order passed by the Court below and a revision was entertained from the order refusing to supersede the arbitration and appointing a fresh arbitrator and directing him to go on with the arbitration. The authority of the case of Jagannath Sahu v. Chhedi Sahu : AIR1929All144 was cited before the Bench and according to that case, the appointment of a new arbitrator which was not authorised was a case decided within the meaning of Section 115, Civil P.C. I accordingly remark. ed that as the Full Bench case of Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1 was not directly against that view, I was not prepared to differ from the view taken by my learned colleague. But in the later case of Risal Singh v. Faqira Singh : AIR1932All452 another Bench of which I also was a member, held that no revision lay from an order setting aside an arbitration award as it did not amount to a case decided. Earlier cases deoided by this Court were relied upon by us as authority for the view which we took.

3. In the Full Bench case of Lila v. Mahange : AIR1931All632 all that we laid down was that the High Court would not ordinarily interfere if another convenient remedy were open to an applicant, but that it could not be laid down as a general proposition that the High Court had no power of interference at all if another remedy were open. That observation was of course confined to cases where the High Court had jurisdiction under Section 115, Civil P.C., to interfere in revision. I do not think that the Bench in Sidh Nath Tewari v. Tej Bahadur Singh A.I.R. 1933 All. 411 interpreted the Full Bench case in any different way. Their remark that the position with regard to revisions was that there was no hard and fast rule about the matter was obviously confined to the question argued before the Bench that inasmuch as there was an undoubted remedy by a suit in respect of matters of which revision was sought, the proper practice for the Court was not to hear the revision; I do not think that the Bench could have intended to lay down that even outside the narrow scope of Section 115, the High Court has any general power of revision whenever it appears to be right, convenient and proper to intervene. Another case relied upon by the Learned Counsel for the applicant is that of Lakshmi Narain Rai v. Dip Narain Rai : AIR1933All350 decided by another Bench, in, which it was held that:

an order determining the question whether art additional Court-fee should be paid or not, marks the termination of a definite stage of the suit and settles the controversy between the parties on the particular point, and is therefore an order deciding a case.

4. It may well be argued that the question of the payment of court-fee is not strictly a matter of controversy between, the parties so far as their rights are concerned. But as the facts of that case are distinguishable, I am not called upon to consider whether I would agree with this pronouncement. The last case relied upon is also a case which can be distinguished on facts. In Kishan Lal v. Ram Chandra : AIR1933All374 , a learned Single Judge of this Court held that where a trial Court had refused to allow the plaintiff to amend his plaint in order to allege that there had been as acknowledgment of the debt which would save limitation the Court's order had the effect of definitely debarring the plaintiff from proving a part of his claim and that therefore it was a case decided and came within the purview of Section 115, Civil P.C. As the case-before us is a converse case, I do not think that it is necessary to consider the soundness of this decision. In the case before us the Court below has allowed the plaintiff to amend his plaint in this way that the relief claimed by the plaintiff is now confined to a smaller property than was originally claimed. The Court below has treated the application for amendment as amounting to an abandonment of a part of the property originally sued: for. If the plaintiff is prepared to abandon that part of the property it would be unfair to compel, her to go and file a suit is the Court of the Subordinate Judge for the smaller property and then have her plaint returned for fresh presentation, to the Munsif's Court. If the amendment is refused, it would be time to file a fresh, plaint in the amended form in the very Court. The question of abandoning a part of the claim was a matter entirely depending on the option and choice of the plaintiff on which the trial Court was not called upon to make any judicial exercise of its own discretion. Further, I do not accept the contention of the applicant that the Court below had no jurisdiction to entertain the application. When a Court grants an application for a certain amendment, it cannot he said that a case has been decided within the meaning of Section 115, Civil P.C. I would therefore hold that the revision lies from the order.

Mukerji, J.

5. I entirely agree with my Lord the Chief Justice that the revision is not maintainable. The plaintiff, who is respondent No. 1 to this revision brought a suit for recovery of possession of one-half share of a house in the Court of a Munsif. The principal defendant, who was alleged to be a trespasser by the plaintiff pleaded that the value of the entire property, which was a house, was over Rs. 10,000 and that therefore the claim for recovery of one-half share in the property ought to have been valued at over Rs. 5,000 and that therefore the suit was not cognizable by the Court of the Munsif. Thereupon, the plaintiff came forward with an application for amendment. She said that the defendant had considerably added to the house, and all that she, the plaintiff, wanted was that the house should be restored to its original condition and that the additions should be removed from the house as it existed at the date of the suit. The learned Munsif has allowed the plaint to be amended as prayed and the question is whether in so allowing the amendment the Munsif has decided a case within the meaning of Section 115, Civil P.C.

6. Apart from authority it seems to me that an order amending a plaint is only one of the numerous orders that a Court must pass before it finally decides a case by passing a decree. It was urged that there are authorities of this Court in which it has been definitely held that where an order passed marks the conclusion of a definite stage in a suit, that order should be treated as a case decided and a revision would be maintainable. Wide language is liable to lead us astray. The facts of each case must be considered, and having regard to the language of Section 115, it must be decided whether the facts bring the case within the purview of Section 115, Civil P.C. In this view I do not propose to review the several cases that have been cited before us. It is sufficient to say that no case has been cited in which it has been held that an order allowing an amendment of the plaint is an order deciding a case. The only decision of this Court which related to amendment of a plaint is a decision in Kishan Lal v. Ramchandra : AIR1933All374 , in which a learned Single Judge of this Court held that where an amendment of the plaint was refused that order amounted to a case decided and a revision was maintainable. The case is not directly in point, and I do not think it necessary to express any opinion as to the soundness or otherwise of the decision. When a question arises in which there is an authority and when the learned Single Judge or the learned Judges composing a Bench are inclined to differ from that authority it would be time for them to refer the matter to the decision of a Full Bench. As I have already mentioned, in this case there is no direct authority on the point, and I feel that we are bound to take the view which appeals to us.

7. As I have said, an order allowing an amendment of the plaint is one of the numerous orders that must be passed by a Judge hearing a case before he concludes a suit by passing a decree. It cannot be said in respect of every order that may be passed that it concludes a definite stage in the case; otherwise an application refusing to adjourn the hearing of a suit may be made the subject-matter of a revision. For the foregoing reasons, I would dismiss the application with costs.

8. The application in revision is dismissed with costs.


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