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Johari Vs. Mahendra Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 830 of 1977
Judge
Reported inAIR1981All436
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17; Uttar Pradesh Amending Act, 1978 - Sections 5
AppellantJohari
RespondentMahendra Singh and anr.
Appellant AdvocateS.K. Gupta and ;R.R. Shivhare, Advs.
Respondent AdvocateR.H. Zaidi, Adv.
DispositionRevision allowed
Excerpt:
.....that plaintiff was willing to fulfil his part of contract - lower appellate court was wrong - held, revision maintainable and thus allowed. - - the plaintiff filed a suit for specific performance of the contract of sale but failed to get a decree in the trial court. in that view of the matter, the present revision would be clearly maintainable. in this case, the impugned order was passed on 23rd march, 1977 by the lower appellate court and the revision was admitted on 2-5-1977. 3. shri zaidi however, contended that the observations made by the supreme court in the above cited cases clearly go to show that such a revision would not lie. amendment of 1978. the full bench specifically dealt with that class of cases and the said judgment having been fully approved by the supreme court..........diesh (air 1979 all 218) has been approved. in the full bench decision of this court it has been held that the revisions which were admitted on or after 1st february, 1977 and up to 31st july, 1978 would continue to be heard by the high court and would be governed by section 115 of the code as amended by central act of 1976. according to the amendment of 1976 central act, the high court has jurisdiction to hear such revisions. in that view of the matter, the present revision would be clearly maintainable. in this case, the impugned order was passed on 23rd march, 1977 by the lower appellate court and the revision was admitted on 2-5-1977.3. shri zaidi however, contended that the observations made by the supreme court in the above cited cases clearly go to show that such a revision.....
Judgment:
ORDER

N.N. Mithal, J.

1. This is a defendant's revision. The plaintiff filed a suit for specific performance of the contract of sale but failed to get a decree in the trial court. While the appeal was pending in the lower appellate court, the plaintiff made an application for amendment of the plaint introducing the claim that the plaintiff was always ready and willing to perform his part of contract. In spite of the objections of the respondent revisionist, the application was allowed by the impugned order, which is being challenged in this Court.

2. At the hearing of the revision, a preliminary objection was taken by Sri R. H. Zaidi, learned counsel for the opposite party and he submitted that the revision is not maintainable as the court which passed the order of amendment was not doing so in exercise of its original jurisdiction. He, in this connection, relied upon two Supreme Court decisions in Vishesh Kumar v. Shanti Prasad ((1980) 2 SCC 378) : (AIR 1980 SC 892) and Vishnu Awatar v. Shiv Autar ((1980) 4 SCC 81) : (AIR 1980 SC 1575). In both these cases, the Full Bench decision of Allahabad High Court rendered in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh (AIR 1979 All 218) has been approved. In the Full Bench decision of this Court it has been held that the revisions which were admitted on or after 1st February, 1977 and up to 31st July, 1978 would continue to be heard by the High Court and would be governed by Section 115 of the Code as amended by Central Act of 1976. According to the amendment of 1976 Central Act, the High Court has jurisdiction to hear such revisions. In that view of the matter, the present revision would be clearly maintainable. In this case, the impugned order was passed on 23rd March, 1977 by the lower appellate court and the revision was admitted on 2-5-1977.

3. Shri Zaidi however, contended that the observations made by the Supreme Court in the above cited cases clearly go to show that such a revision would not lie. It may, however, be stated that in (1980) 2 SCC 378 : (AIR 1980 SC 892), the Supreme Court was considering the case which was decided by the District Court in exercise of powers under Section 25 of the Provincial Small Cause Courts Act and in that connection it was held that such a decision was not amenable to High Court's powers under Section 115, C.P.C. One of the special leave petitions decided in that case arose from an application of ad interim injunction made in a pending suit. Since the original suit had already been dismissed, therefore, it was held that the proceedings for grant of interim injunction must be regarded as having lapsed. On this ground, the special leave petition was held to be infructuous and was dismissed. In the other case also, the Court held that there was a general division of power between the District Court and the High Court in respect of the original suit of the value of Rs. 20,000/- and upward, in which the revision would lie to the High Court and in other cases only the revision would lie to the District Court, The Supreme Court had no occasion there to discuss those limited class of cases which arose during the period when Section 115, C. P. C. stood amended by the Central Act of 1976 and had not, been amended in its present terms by U. p. Amendment of 1978. The Full Bench specifically dealt with that class of cases and the said judgment having been fully approved by the Supreme Court must be held to be still effective and well founded. The preliminary objection fails and is hereby rejected and it is held that the revision is maintainable.

4. On merits, the learned counsel for the revisionist has submitted that right from the beginning, the defendant had stated that the plaintiff had failed to aver in the plaint that he was ready and willing to perform his part of agreement and, therefore, was not entitled to specific performance of the agreement in view of Section 16(c) of the Specific Relief Act. He urged that in spite of such objection being taken, the plaintiff insisted that the suit could proceed and no effort was made to amend his pleadings. In such circumstances, the lower appellate court was not justified in allowing the amendment Without dilating any further, I would straightway refer to the case of Mahommed Khan v. Ayub Khan (AIR 1978 All 463) where a Division Bench of this Court held that the aforesaid amendment in the plaint cannot be allowed as it would prejudice the defen-dant and a valuable right created by it will be taken away. The facts of that case singularly apply to the facts of the present case also and, therefore, the amendment sought by the plaintiff could not have been allowed.

5. In the result, I find force in this revision, which is hereby allowed with costs and the order passed by the court on the application No. 25-A is set aside and the said application will now stand rejected.


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