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Kishan Lal Babu Lal Vs. Ram Chandra - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in145Ind.Cas.859
AppellantKishan Lal Babu Lal
RespondentRam Chandra
Cases ReferredK. B. Sheikh Ghulam v. Sheikh Ghulam Mohammad
Excerpt:
.....not altering nature of suit-- interference in revision--other remedy open--convenience to parties. - - , the well-known decision in buddhu lai v. 1 :31 a 592 :10 alj 130 a bench of this court has ruled that an application under section 115, civil procedure code, cannot be entertained in the case of those interlocutory orders against which, though no immediate appeal lies, a remedy is supplied by s, 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..........to exercise a jurisdiction vested in it by law.5. dr. vaish has filially referred to an unreported decision of a bench of this court, the case of k. b. sheikh ghulam v. sheikh 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.....
Judgment:
ORDER

Kendall, J.

1. This is an application for the revision of an order of the Munsif of Kasgan 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 December 11, 1926 10 March 11, 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 have been made by the defendant on July, 27, 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 VI, Civil Procedure Code, 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 parties.' If therefore, it was necessary to decide as between the parties whether this alleged acknowledgment was to be proved or not, (he court should not, it is argued, have allowed considerations of equity to interfere 0 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 Procedure Code, 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 plaintiff-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 'casey 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 Lai v. Mewa Ram 63 Ind. Cas. 15 : AIR 1921 All. 1 : 43 A 564 : 19 ALJ 558 (FB), 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 allowed 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 constrained 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 is whether a pleading should be amended has been more than once made the subject of appeal. Dr. Viaish has been able to point to the cases of Bisheshar Prasad v. Gobind Ram 26 Ind. Cas 42 : AIR 1914 All. 302 : 12 ALJ 833 in which a similar question of amendment is the only point urged in the Appellate Court, and Mumiaz Ali v. Kasim Ali 19 Ind. Cas 250 : 11 ALJ 423, where it was certainly one of the grounds in appeal. In the case of Nand Ram v. Gopal Singh 16 Ind. Cas. 1 : 31 A 592 : 10 ALJ 130 a Bench of this Court has ruled that an application under Section 115, Civil Procedure Code, cannot be entertained in the case of those interlocutory orders against which, though no immediate appeal lies, a remedy is supplied by s, 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 22 Ind. Cas. 39 : AIR 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 16 Ind. Cas. 1 : 31 A 592 : 10 ALJ 130 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 revision 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 learned Judges expressed views differing from that expressed by the Bench in Nand Ram v. Bhopal Singh 16 Ind. Cas. 1 : 31 A 592 : 10 ALJ 130. 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_ irregularly, 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 all; and that in refusing to allow the amendment it failed to exercise a jurisdiction vested in it by law.

5. Dr. Vaish has filially referred to an unreported decision of a Bench of this Court, the case of K. B. Sheikh Ghulam v. Sheikh 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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