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Ganga Prosad Vs. Lachman Das and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.404
AppellantGanga Prosad
RespondentLachman Das and anr.
Excerpt:
civil procedure code (act v of 1908), section 115 - order rejecting application for amendment-revision. - - there has been considerable argument before us as to whether the provisions of section 115 of the code of civil procedure apply at all to an application like the present......had an important bearing on the case. he was prepared to show that, according to this genealogical table, makundi singh was the nearest reversioner, but the table differed in some respects from the table given at the foot of the plaint. the plaintiff accordingly asked for permission to amend his plaint by substituting this genealogical table for, that given at the foot of the plaint. the court below has rejected this application and we are asked to set aside this order in the exercise of our revisional jurisdiction. there has been considerable argument before us as to whether the provisions of section 115 of the code of civil procedure apply at all to an application like the present. we are not prepared to say positively that, under some circumstances, an order rejecting an application.....
Judgment:

1. The plaintiff in this case sues as the transferee of a reversioner under the Hindu Law. He bases his claim upon the allegation that his transferor, Makundi Singh, whom he has impleaded as a defendant in the case, was the nearest reversioner to the last male owner of the estate. He appended to his plaint a genealogical table showing the descent of Makundi Singh and the last male owner from a common ancestor, At a later stage of the suit, after issues had been fixed, but apparently before any evidence had been taken, the plaintiff presented a petition to the effect that daring the pendency of the suit, he had discovered a new piece of evidence, viz., a genealogical table of 1825, which had an important bearing on the case. He was prepared to show that, according to this genealogical table, Makundi Singh was the nearest reversioner, but the table differed in some respects from the table given at the foot of the plaint. The plaintiff accordingly asked for permission to amend his plaint by substituting this genealogical table for, that given at the foot of the plaint. The Court below has rejected this application and we are asked to set aside this order in the exercise of our revisional jurisdiction. There has been considerable argument before us as to whether the provisions of Section 115 of the Code of Civil Procedure apply at all to an application like the present. We are not prepared to say positively that, under some circumstances, an order rejecting an application for leave to amend a plaint might not be treated as deciding a miscellaneous case between the parties and so be made a proper subject for an application for revision to this Court. We are not, however, of opinion that the present is a case in which we should interfere with the discretion of the Court below. There is nothing to prevent the plaintiff from putting himself, or his duly authorised agent, into the witness box explaining how he came to append to his plaint a pedigree which he now believes to be incorrect, and then tendering in evidence this pedigree of 1825, and such other evidence as may be available in proof of its correctness. It will be for the Court to find if either or neither of these pedigrees is proved to be correct; and, in arriving at this conclusion, the Court will have to take into consideration that the plaintiff has shifted his ground, and also the reasons given by the plaintiff for his having done so. When the suit has been determined by the Court below on the issue of fact, a remedy by way of appeal will ha open to the party dissatisfied by such decision. We decline to interfere at this stage and accordingly dismiss the application with costs including in this Court fees on the higher scale.


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