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Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All686; 165Ind.Cas.1
AppellantMt. Suraj Pali
RespondentAriya Pretinidhi Sabha
Excerpt:
- - now this ruling is clearly distinguishable. the view as to revisions, which this court now holds, is well known and it is settled law so tar as this court is concerned that it would not interfere with a case which is pending......which has been decided' to be found in section 115, civil p.c.5. in chhiddu singh v. makhan lal civil revision no. 661 of 1934, decided on 16th january 1936, thorn and rachhpal singh, jj. also held that although that was a case where the amendment of the written statement should have been allowed no revision lay from the order refusing to allow such an amendment. a similar view had been expressed by one of the same learned judges in kundan lal v. chhajju mal civil revision no. 297 of 1935, decided on 7th january 1936. it is therefore obvious that there is a conflict of opinion in this court on this question. now so far as revisions from orders allowing an amendment of a pleading are concerned the rulings seem to be one way. the learned counsel for the applicant has not been able to.....
Judgment:

Sulaiman, C.J.

1. This is an application in revision from an order refusing to allow an amendment of the plaint. The plaintiff applied that the word 'defendants' should be added in para. 2 where-from, according to her, it had been omitted by mistake. The case has been referred to a Full Bench owing to a conflict of opinion in this Court on the question whether the refusal to allow an amendment of a plaint is a case decided within the meaning of Section 115, Civil P.C., or not. That there has been an unfortunate conflict of opinion in this Court cannot be denied. Confining attention to the cases dealing with revisions from orders either allowing or refusing amendments of plaints, and not considering other cases, for instance applications for setting aside ex parte decrees or for setting aside awards or for applying to sue in forma pauperis, etc., the cases in favour of the applicant are as follows: In Kishan Lal v. Ram Chandra 1933 ALJ 268 the Court below had definitely debarred the plaintiff from proving a part of his claim by refusing to allow an amendment on the ground that the application had been unduly delayed. The learned Judge, on the analogy of certain previous cases, which admittedly were not directly in point, came to the conclusion that where the effect of the order was definitely to debar the plaintiff from proving a part of his claim, it was a final decision of the Court on that part of the case and was therefore a case decided within the meaning of Section 115, Civil P.C.

2. In Bala Prasad v. Radhey Shiam 1934 ALJ 126 an application for revision was directed against an order refusing to substitute the names of the two sons of a defendant who had. died before the filing of the suit but of whose death the plaintiff had been ignorant. The Bench came to the conclusion that the Court below should have allowed the amendment, and that the refusal to substitute the names of the sons in place of the defendant who was dead was the decision of a case within the meaning of Section 115, Civil P.C. Now this ruling is clearly distinguishable. Strictly speaking it was not a case purely of a mere amendment of a plaint. The suit, as originally filed, had been filed against a dead defendant and the proceeding was therefore a nullity as against his heirs. When an application was made that the heirs who should have been impleaded as defendants, and were the real defendants, should be brought on the record, a fresh proceeding was started against them and the previous suit could not be considered to have been merely continued as against them. The point for consideration before the Bench was whether the names should be added under Order 1, Rule 10, Civil P.C. Now Sub-rule 5 of that rule provides that subject to the provisions of the Limitation Act the proceeding as against any person added as defendant shall be deemed to have begun only on the service of the summons. Thus the sub-rule itself contemplates that the addition of a new party implies a fresh proceeding which is deemed to have begun only on the service of the summons on the added defendants and not to have commenced retrospectively from the institution of the suit. That case, therefore, is not really directly in point.

3. In a later case, in Rurahmal Ram Nath v. Kapil Man Misir 1934 ALJ 989, a revision was filed from an order refusing to amend the plaint in a suit which had originally been brought for the recovery of money on the basis of a promissory note and the plaintiff had sought to amend the plaint in such a manner as to base his claim alternatively on the bahi khata account. The learned Judges thought that the case came within the purview of Order 6, Rule 17, the latter portion of which makes it imperative for a Court to allow amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. The Bench approved of the opinion expressed by the learned single Judge in Kishan Lal's case (1). The question also arose in Beni Prasad v. Salig Ram 1935 AWR 613 before one of us. That was an application in revision against an order refusing an amendment of the plaint. There too the amendment was in the nature of a note made against defendants 1 and 2 that they were President and Secretary respectively of a certain Committee and also for the addition of a new party who had been alleged in the written statement to he the manager of that Committee. The case came within the purview of Order 1, Rule 8; but the Court below had disallowed the application on the ground that the plaintiff was seeking to alter the nature of the claim to a large extent. The case of Rurahmal Rurahmal Ram Nath v. Kapil Man Misir 1934 ALJ 989 was cited before the learned single Judge and he observed:

In view of this ruling I consider that I should hold that the refusal to allow an amendment of the plaint is a case decided within the meaning of Section 115, Civil P.C.

4. The learned Judge obviously felt bound to follow the Bench ruling as no ruling to the contrary was cited before him. On the other hand, in the unreported case in Sheikh Ghulam Husain v. Shaikh Ghulam Mohammad Civil Revn. No. 555 of 1932, decided on 8th December 1932, Mukerji, Ag. C.J. and Thorn, J., held that no revision lay from an order refusing to allow an amendment of the written statement. The Bench observed:

The view as to revisions, which this Court now holds, is well known and it is settled law so tar as this Court is concerned that it would not interfere with a case which is pending. This is undoubtedly in accordance with the expression 'of any case which has been decided' to be found in Section 115, Civil P.C.

5. In Chhiddu Singh v. Makhan Lal Civil Revision No. 661 of 1934, decided on 16th January 1936, Thorn and Rachhpal Singh, JJ. also held that although that was a case where the amendment of the written statement should have been allowed no revision lay from the order refusing to allow such an amendment. A similar view had been expressed by one of the same learned Judges in Kundan Lal v. Chhajju Mal Civil Revision No. 297 of 1935, decided on 7th January 1936. It is therefore obvious that there is a conflict of opinion in this Court on this question. Now so far as revisions from orders allowing an amendment of a pleading are concerned the rulings seem to be one way. The learned Counsel for the applicant has not been able to cite any case in which a revision was allowed from an order where an amendment had been permitted. In Sundar Lal v. Razia Begam 1934 ALJ 757, it was definitely ruled by a Bench of this Court that no revision would lie from an order allowing an amendment of a plaint as it cannot be said that a case has been decided within the meaning of Section 115, Civil P.C. The Bench refrained from considering the soundness of the decision in Kishan Lal's case (1) inasmuch as the case before them was a converse one. A similar view was expressed in the unreported G. A. John v. Seth Indra Chand Civil Revision No. 572 of 1934, decided on 24th April 1935. The word 'case' has not been defined in the Code of Civil Procedure, and cannot therefore be given any exhaustive definition. Evans, J.C. and Sundar Lal, A.J.C. Hevanchal Kunwar v. Kanhai Lal (1909) in 12 OC 405 remarked that:

Where there are independent proceedings arising out of a case, such as a proceeding to restore a case dismissed in default or to set aside a decree ex parte, for which the legislature has provided an independent remedy or a different procedure, such proceeding may be a case within the meaning of the section.

6. This dictum was quoted with approval by Lindsay, J. in the Full Bench case in Ram Sarup v. Gaya Prasad 1925 48 All 175, corresponding to 24 A L J 56. This opinion of Lindsay, J. was accepted by another Bench of this Court in Radha Mohan Dutt v. Abbas Ali Biswas 1931 53 All 612 at p. 629. In the Full Bench case in Gupta & Co. v. Kirpa Ram Brothers 1934 ALJ 381 at p. 384, it was observed:

It seems to me that it is not possible to lay down any complete and exhaustive definition of the word 'case.' Certainly the word 'case', is not an exact equivalent of the word 'suit.' Obviously it is something wider. At the same time it may not be so wide as to include every order that is passed by a Court during the trial of a suit or proceeding pending before it.

7. Thus the word 'case' could not be given such a wide meaning as to cover every interlocutory order passed by a Court during the trial of a suit. Now if a case within the meaning of Section 115, Civil P.C., is started as soon as an application for the amendment of a pleading is made then the case would be decided when final orders on that application are passed, no matter whether the application is allowed or disallowed. There would be an anomaly in holding that if the application is allowed the case is not decided, but if it is not allowed the case is decided. If the filing of the application was the commencement of a new proceeding or a case, then the case must necessarily be decided if the application is allowed. But it has been held consistently by this Court that when an application for amendment has been allowed no case can be said to have been decided so as to be made the subject of a revision to this Court. The cases laying down that no revision lies from orders merely allowing or disallowing amendments which are to some extent matters of discretion seem to have laid down the correct law. It must accordingly be held that no revision lies from an order refusing to allow an amendment of a pleading. Oases where the 'amendment comes under some other order of the Court, for example, the addition or substitution of parties, or the striking off a pleading, may amount to a case decided; but an order passed purely under Order 6, Rule 17 is not.

Bennet, J.

8. I agree with the judgment of the Hon'ble Chief Justice.

Bajpai, J.

9. I agree.


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