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Kishan Lal-babu Lal Vs. Ram Chandra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All374
AppellantKishan Lal-babu Lal
RespondentRam Chandra
Cases ReferredK.B. Sh. Ghulam v. Sh. Ghulam Mohammad
Excerpt:
- - , the well-known decision in buddhu lal v. cannot be entertained in the case of those interlocutory orders against which, though no immediate' appeal lies, a remedy is supplied by section 105, which provides that they may be made a good ground of objection in appeal against the final decree; and that in refusing to allow the amendment it failed to exercise a jurisdiction vested in it by law. the circumstances are clearly distinguishable from the present case in which, as i have held, a case has-been decided because a refusal to allow the plaint to be amended does shut out a part of the plaintiff's claim, and the proposed amendment itself does not alter the nature of the plaintiff's suit......to exercise a jurisdiction vested in it by law.5. dr. vaish has finally referred to an. unreported decision of a bench of this. court, the case of k.b. sh. ghulam v. sh. ghulam mohammad, in which, it has been held that no revision lies against an order refusing permission-to amend a written statement in such a way as to change the entire nature of the defence. the bench held in that case that there had been no case decided and that no revision was maintainable. the circumstances are clearly distinguishable from the present case in which, as i have held, a case has-been decided because a refusal to allow the plaint to be amended does shut out a part of the plaintiff's claim, and the proposed amendment itself does not alter the nature of the plaintiff's suit. for these reasons i allow the.....
Judgment:
ORDER

Kendall, J.

1. This is an application for the revision of an order of the Munsif of Kasganj, refusing to allow the applicant, who is the plaintiff in the suit to amend his plaint. The suit was one for a sum of Rs. 307 odd, said to be due on account of certain business transactions between the parties from 11th December 1926 to 11th March 1929; and after the' original ex parte decree had been set aside and the suit restored, the plaintiff made an application to amend his plaint in answer to the written statement. In the written statement it had been pleaded that some of the items named In the plaint were barred by limitation, and the plaintiff therefore applied to amend the plaint with reference to an acknowledgment said to to have been made by the defendant on : 27th July 1929. The Munsif refused to allow the amendment on the ground that the application was unduly delayed and that it would, in the circumstances, be unfair to the defendant to allow the application. Under Rule 17, Order 6, Civil P.C., an amendment of the pleadings may be allowed at any stage, and 'all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the pa-ties.' If therefore it was necessary to decide as between the parties whether this alleged acknowledgment was to be proved or not the Court should not, it is argued, have allowed considerations of equity to interfere with the mandatory provisions of Rule 17. The application has been opposed on the grounds that the decision of the Court does not amount to a 'case decided' as contemplated by Section 115, Civil P.C., that the Court has not dismissed the application summarily or without consideration, and finally because no application for revision ought to be entertained where another remedy lies. The question of whether the decision of the Court below amounts to a 'case decided' can be answered shortly by pointing to the fact that it does virtually shut out a part of the plain-tiff-applicant's claim. It is not necessary to refer to all the definitions of a 'case decided' which have been recorded in the various High Courts, because' in fact the word 'case' in this rule has not received a final and authoritative definition. In the recent decision of this Court, a Bench of this Court remarked:

It therefore seems to us that the Full Bench case, i.e., the well-known decision in Buddhu Lal v. Mewa Ram A.I.R. 1921 All 1, is an authority for the proposition that no revision lies from a finding recorded by the trial Court on one or more issues out of several that are before it for disposal. There was no majority in favour of the broad proposition that no revision lies from an interlocutory order.

2. Where the effect of the order of the Court below is definitely to debar the plaintiff from proving a part of his claim, that is a final decision of the Court on that part of the case, and in my opinion, it can be brought within the meaning of the words 'case decided' under Section 115. As regards the second argument, the Munsif has no doubt considered the point, but he has not considered it from the right point of view. It is quite clear that the application made by the' plaintiff, if al-lowed, would not have changed the nature of the' suit. He merely wished to prove an acknowledgment, and that acknowledgment would not have been, as Dr. Vaish suggested for the opposite party, a new cause of action, but, merely a piece of evidence. There was a controversy between the parties about money due on business transactions, and whether the acknowledgment was a genuine one or not, this matter had to be set at rest 'for the purpose of determining the real question in controversy between the parties.' The fact that the application for amendment may have' been 'unduly delayed' might influence the Munsif in deciding whether the acknowledgment was genuine, but ought not to have con-strained him to dismiss the application itself.

3. The most serious objection that has been made to the present application is that it has been held by this and by other High Courts that no revision will lie where there is an appeal. The question of whether a pleading should be amended has been more than once made the subject of appeal. Dr. Vaish has been able to point to the cases of Bisheshar Prasad v. Gobind Ram A.I.R. 1914 ALL 302 in which a similar question of amendment is the only point urged in the appellate Court, and Mumtaz All v. Kasim Ali (1913) 19 IC 250, where' it was certainly one of the' grounds in appeal. In the case of Nand Ram v. Bhopal Singh (1912) 34 All 592 a Bench of this Court-has ruled that an application under Section 115, Civil P.C. cannot be entertained in the case of those interlocutory orders against which, though no immediate' appeal lies, a remedy is supplied by Section 105, which provides that they may be made a good ground of objection in appeal against the final decree; and I have also been referred to a case of the Madras High Court in Vasantarayadu Reddi v. Subbamma A.I.R. 1914 Mad 17 in which the identical question at present raised was decided against the applicant for amendment. On the other hand in the case of Lila v. Mahange : AIR1931All632 it has been held by a Bench of this Court that:

it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy... open to the applicant. Bach case must be considered on its own merits.

4. It is true that the case of Nand Ram v. Bhopal Singh is not referred to in that decision and may not have been brought to the notice of the Bench but in another recent decision in Ram Sarup v. Gaya Prasad : AIR1925All610 , a Full Bench of this Court interfered in re-vision with an appellate order which might apparently have' been made the subject of an appeal, and in the course of the judgment all three of the learn-ed Judges expressed views differing from that expressed by the Bench in Nand Ram v. Bhopal Singh. The view has been expressed more than once that, where the effect of allowing a revision, in a matter in which an appeal might also lie, will be a convenience to the parties and will save expense, the Court will be inclined to interpret the provisions of Section 115 liberally and to interfere with an order which has been passed without jurisdiction, or irregularity, illegally or with ' material irregularity in the exercise of its jurisdiction. The present case is not without difficulty, but I am strongly of opinion that the Court ought to have allowed the amendment in order; to enable the controversial matter between the parties to be settled once for; for all; and that in refusing to allow the amendment it failed to exercise a jurisdiction vested in it by law.

5. Dr. Vaish has finally referred to an. unreported decision of a Bench of this. Court, the case of K.B. Sh. Ghulam v. Sh. Ghulam Mohammad, in which, it has been held that no revision lies against an order refusing permission-to amend a written statement in such a way as to change the entire nature of the defence. The Bench held in that case that there had been no case decided and that no revision was maintainable. The circumstances are clearly distinguishable from the present case in which, as I have held, a case has-been decided because a refusal to allow the plaint to be amended does shut out a part of the plaintiff's claim, and the proposed amendment itself does not alter the nature of the plaintiff's suit. For these reasons I allow the application with costs and direct that the-amendment prayed for by the applicant be made in the plaint, and that the Court shall thereafter proceed to-hear the suit on its merits.


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