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Dilsukh Rai Baijnath and anr. Vs. Dwarka Dass - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All189
AppellantDilsukh Rai Baijnath and anr.
RespondentDwarka Dass
Excerpt:
- - mewa ram air 1921 all 1. it is admitted that there has been a difference of opinion among the different high courts in india but it is claimed that so far as this court is concerned the decision of the full bench clearly shows that no revision will lie in circumstances such as these. abbas ali biswas air1931all294 ,is clearly distinguishable from the present one. if i were satisfied that in the present case there had been an abuse of the process of the court i should agree with him. the question is at any rate one which is open to argument, and i am not satisfied that any order is necessary in the ends of justice or to prevent abuse of the process of the court......under section 115, civil p. c., can be entertained. this objection is based on the full bench decision in the case of baddhu lal v. mewa ram air 1921 all 1. it is admitted that there has been a difference of opinion among the different high courts in india but it is claimed that so far as this court is concerned the decision of the full bench clearly shows that no revision will lie in circumstances such as these. there is no doubt that even in this court there has not been complete harmony in denning the limitations of section 115, or to be more precise that there have been some conflicting decisions as to the definition of the words 'case decided' which are used in section 115. for instance in the full bench decision to which i have alluded, three of the learned judges held.....
Judgment:

Kendall, J.

1. This application has been made for the revision of an order of the Munsif of Hathras, permitting the plaintiff opposite party to amend his plaint. As originally filed, the plaint was one for a specified sum of money on the ground that as the result of three transactions between the plaintiff and the defendant, who was his commission agent, that sum was due to the plaintiff. After all the evidence had been recorded, and on account of some admissions made by the defendant in the course of his examination, the plaintiff made an application to amend the plaint so as to make the suit one for rendition of accounts. The present application is made on the grounds that the Court acted irregularly in allowing the plaint to be amended after the case had been closed by the parties and was ripe for decision, and also because the proposed amendment has the effect of changing the nature of the suit. A preliminary objection has been made on the ground that as the case has not been decided, no application under Section 115, Civil P. C., can be entertained. This objection is based on the Full Bench decision in the case of Baddhu Lal v. Mewa Ram AIR 1921 All 1. It is admitted that there has been a difference of opinion among the different High Courts in India but it is claimed that so far as this Court is concerned the decision of the Full Bench clearly shows that no revision will lie in circumstances such as these. There is no doubt that even in this Court there has not been complete harmony in denning the limitations of Section 115, or to be more precise that there have been some conflicting decisions as to the definition of the words 'case decided' which are used in Section 115. For instance in the Full Bench decision to which I have alluded, three of the learned Judges held that the decision of an issue relating to the jurisdiction of the Court could not properly be described as a 'case decided,' whereas the other two were of a contrary opinion. I have also been referred on behalf of the applicant to the cases of Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 and Poran Lal v. Rup Chand : AIR1931All761 . In the former of these cases the Bench decided that where an order setting aside a decree has been passed by a Court in defiance of the provisions of Order 9, Rule 13, Civil P.C. the matter is a 'case decided' and the High Court is entitled to interfere in revision. In the latter case the High Court intervened when the lower Court had appointed an arbitrator whom it had no power to appoint, holding that the appointment amounted to a 'case decided.' I think that the case of Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 , is clearly distinguishable from the present one. An application for an order setting aside a decree initiates a proceeding which involves the recording of evidence and the decision of an issue which is however quite distinct from the issues in the suit proper. It is in fact of the nature of a complete case-ancillary to the main suit, but quite distinct from it in giving rise to considerations which have nothing whatever to do with those which govern the apparent suit.

2. The case of Poran Lal v. Rap Chand : AIR1931All761 is more helpful to the applicant, but here the Court was largely influenced by the consideration that unless the proceedings relating to the appointment of an arbitrator were held to amount to a 'case decided' there might have been some unnecessary proceedings in which a large number of witnesses might be examined. On the other hand the case of Risal Singh v. Fakira Singh : AIR1932All452 , shows that an order setting aside an arbitration award does not amount to a 'case decided,' and no revision will lie from such an order. I have only quoted some recent decisions of this Court as it would be tedious to refer to all the instances which have been adduced as 'cases decided' for the purposes of revision. The Court has sometime taken a narrower and sometimes a broader view of the meaning of the expression 'case decided' but it has never I believe, interpreted Section 115 so widely as to permit the decision of one issue out of several or the propriety of an interlocutory order of a routine nature, to form the basis of an order in revision. In the present case the order allowing the plaint to be amended cannot, in my opinion, be interpreted by any stretch of language as a 'case decided.' Mr. Panna Lal has suggested that even if Section 115 be held not to be strictly applicable an order ought to be passed under Section 151 to prevent abuse of the process of the Court. If I were satisfied that in the present case there had been an abuse of the process of the Court I should agree with him. The learned Munsif however has not passed his order without applying his mind to the case, and he has come to the conclusion that the proposed amendment will not change the nature of the suit. No doubt the ultimate decision of the Munsif will be the subject of an appeal and I do not wish to express a definite opinion as to whether it does or does not change the nature of the suit. The question is at any rate one which is open to argument, and I am not satisfied that any order is necessary in the ends of justice or to prevent abuse of the process of the Court. The result is that the application fails and is dismissed with costs.


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