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Chandra Kishore Das Vs. Babulal Agarwala and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa
Decided On
Reported inAIR1949Ori77
AppellantChandra Kishore Das
RespondentBabulal Agarwala and ors.
Cases ReferredBir Babu v. Raghu Babu A.I.R.
Excerpt:
.....revision, with interlocutory orders of the subordinate courts, where there might be a failure of justice if the matter is not set right. 209 6. i am, therefore, satisfied that the high court's powers to interfere in revision with interlocutory orders are not restricted, and that section 115, civil p. i fail to appreciate the force of this reasoning......against the order of the subordinate judge, puri, refusing to allow the defendant to amend his written statement. the plaintiff filed a money-suit for the recovery of rs. 59,000 against vijaya stores, the petitioners before us, alleged to be due under an agreement for the supply of rice to the petitioners. one of the contentions raised by the defendant firm was that the plaintiff alone was not entitled to sue as he, along with one brajakishore naik, jointly executed the agreement in favour of the defendants for supply of rice. the plaintiff thereupon filed a petition under order 1, rule 10 and under section 151, civil p.c., to implead brajakishore naik as a pro forma defendant. the court directed the addition of brajakishore as defendant 2 and the plaint was accordingly amended......
Judgment:

Panigrahi, J.

1. This revision is directed against the order of the Subordinate Judge, Puri, refusing to allow the defendant to amend his written statement. The plaintiff filed a money-suit for the recovery of Rs. 59,000 against Vijaya Stores, the petitioners before us, alleged to be due under an agreement for the supply of rice to the petitioners. One of the contentions raised by the defendant firm was that the plaintiff alone was not entitled to sue as he, along with one Brajakishore Naik, jointly executed the agreement in favour of the defendants for supply of rice. The plaintiff thereupon filed a petition under Order 1, Rule 10 and under Section 151, Civil P.C., to implead Brajakishore Naik as a pro forma defendant. The Court directed the addition of Brajakishore as defendant 2 and the plaint was accordingly amended. Summons was issued to defendant 2 and on 4th August 1945 defendant 2 filed his written statement. On 5th September 1945 defendant 1 filed a petition for amending his written statement by the addition of certain paragraphs after para. 18 of that statement. The learned Subordinate Judge, however, refused to allow the amendment to be made, and hence this revision petition.

2. A preliminary objection has been raised by Mr. Mohapatra, learned advocate appearing for the opposite party against the maintainability of this application for revision. His contention is that an interlocutory order in a suit is not 'a case decided' so as to attract the operation of Section 115, Civil P.C. This expression has been the subject of much divergence of opinion among the several High Courts and even among Judges of the same High Court. It may, however, be taken to be settled now that the word 'case' is wide enough to include an interlocutory order. A 'case' is not identical with a suit or an appeal. It is of wide and comprehensive import and clearly covers a larger area than would be covered by a word like 'suit' or 'appeal'. It has thus been held that even an ex parte proceeding under the Religious Endowments Act constitutes a 'case' within the meaning of this section. There is, however, a conflict of opinion as to whether an interlocutory order is a 'case decided' within the meaning of this section. The Allahabad High Court has consistently held that an interlocutory order does not decide a case and that a case does not mean part of a case, and unless the whole suit is decided Section 115 does not operate. This view has been strongly reflected in the decisions of the Allahabad High Court reported in Budhoo Lal v. Mewa Ram A.I.R. 1921 ALL 1., Govind Das v. Mt. Indravati : AIR1938All557 . and Dilkush Rai v. Dwarka Das : AIR1933All189 . Strong reliance has been placed by Mr. Mohapatra on the latest Full Bench decision of the Allahabad High Court reported in Suraj Pali v. Arya Pratinidhi Sabha A.I.R.1946 ALL. 686. The Full Bench decided that the word 'case' should not be given such a wide meaning as to cover every interlocutory order passed by a Court during the trial of the suit. It was pointed out that there was an anomaly in holding 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 while if the amendment is disallowed, a revision will lie. These were the two currents of opinion prevailing in that Court. The Full Bench set at rest this controversy by laying down that the cases which held 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 was accordingly held that no revision lay from an order refusing to allow the amendment of a pleading. It was, however, observed that if the amendment comes under some other order of the Court, e. g., the addition or substitution of parties, it may amount to a 'case decided' and, therefore, revisable, but an order passed under Order 6, Rule 17, is not.

3. Mr. Mohapatra also drew our attention to a case reported in Indubala v. Lakshminarayan : AIR1935Cal102 where it was broadly stated that the Calcutta High Court would not interfere with interlocutory orders unless an irreparable injury will be done, but it has been the consistent policy of the Calcutta High Court to interfere, in revision, with interlocutory orders of the subordinate Courts, where there might be a failure of justice if the matter is not set right.

4. Another case relied upon by learned Counsel for the respondent is the case of Lloyds Bank Ltd. v. Surajmull Jalar reported in A.I.R. 1926 Cal. 1112. This case, again, does not, in my opinion, help us as all that it lays down is that it is wrong to is Section 115, Civil P.C. to correct mere errors of law and not errors of procedure.

6. It has, however, been consistently laid down by the High Courts of Calcutta, Madras, Patna, Nagpur and Rangoon that no hard and fast rule can be laid down as to when the High Court will interfere with an interlocutory order, and that it will always interfere in order to void irreparable injury being caused to a litigant. Indubala v. Lakshminarayan : AIR1935Cal102 to correct errors of procedure, Lloyds Bank Ltd. v. Surajmal Jalar A.I.R. 1926 Cal. 1112 to avoid trouble, expense and delay to one of the parties Kariya Goundan v. Tirukkaivelu Chetty A.I.R.1925 Mad. 585 to avoid a multiplicity of proceedings Chandramma v. Seethan Naidu A.I.R. 1931 Mad. 542 where it might involve heavy costs to one or more of the parties, Satya Niranjan v. Dwarka Nath A.I.R. 1921 Pat. 323 or where discretion has been wrongly used as in the appointment of a Commissioner, Sarat Kumar v. Ramachandra A.I.R. 1922 cal. 42. The Rangoon High Court has held that it could interfere to prevent waste of time, trouble and money, P.V.V.R.P.L. Chettiyar Firm v. Daw Paw Kywe A.I.R. 1935 Rang. 225. The Patna High Court has consistently held that a revision would lie against orders refusing amendment and that the powers of a High Court under Order 6, Rule 17, are not exhaustive, Bihari Sahu v. Sudama A.I.R. 1938 Pat. 209. It has similarly been held that an order allowing a party to sue in forma pauperis is revisable Amar Das v. Jailalsao A.I.R. 1936 Nag. 209

6. I am, therefore, satisfied that the High Court's powers to interfere in revision with interlocutory orders are not restricted, and that Section 115, Civil P.C., is no bar to the maintain ability of this petition. Where, however, another remedy is available to the injured party by way of appeal or suit an interlocutory order will not ordinarily be interfered with, Bir Babu v. Raghu Babu A.I.R. 1947 Pat. 469.

7. The lower Court appears to have overlooked the implication of Sub-clause (5) of Order 1, Rule 10, which says that on the addition of a party the proceedings as against any person added as a defendant shall be deemed to have begun only on the service of the summons and Sub-clause (4) lays down that the amended copies of the summons and of the plaint shall be served on the new defendant and if the Court thinks fit, on the original defendant. Order 8, Rule 9 enables the Court to require a written statement from any of the parties at any time. After the plaint was amended the Court should have called upon the petitioner to file an additional written statement if he chooses to do so, particularly after the newly added defendant had filed his written statement. In fact, it was the duty of the Court to have given an opportunity to the original defendant after the plaint had been amended and new pleadings had been brought on the record. The petitioner raised two contentions in his additional statement, which he sought to incorporate in the original statement: firstly that the plaintiff and defendant 2 constituted a firm and the firm not having been registered, the suit is not maintainable under Section 69, Partnership Act; and secondly that the contract between the plaintiff and defendant 2 on the one hand and the petitioner on the other was void as it contravened the provisions of the Orissa Foodgrains Control Order. Whether these contentions have any substance in them or not, it will be for the trial Court to investigate and it is now premature to say that they are frivolous. The lower Court unfortunately was under the impression that the petitioner wanted to add certain facts to his written statement, which would substantially 'alter the nature of the suit or the defence'. I am unable to uphold this view. The points raised by the petitioner are purely questions of law arid even if they arise out of certain facts, this is a fit case in which the petitioner should have been allowed to amend his pleading. It is alleged by Mr. Mohapatra appearing for the respondent that the petition for amendment is too premature and that the defendant could have come up at a later stage for the same relief. I fail to appreciate the force of this reasoning. The party seeking the amendment has applied at the earliest possible time, immediately after the newly added defendant filed his written statement. It will be a miscarriage of justice if the parties should be allowed to go to trial and possibly come up in appeal to this Court, and then to allow the petitioner to amend his pleading to bring out the real facts in controversy in this suit. Not only much judicial time would have been wasted by then, but the parties would have been put to unnecessary expense and trouble.

8. In these circumstances, I am unable to uphold the order of the learned Subordinate Judge. The order of the lower Court is set aside and the petition is allowed. The costs will abide the result.

Narasimham J

I agree.

Addition made on 23rd September 1948 per Panigrahi J.-- Hearing fee in this case is fixed at 2 gold mohurs in the presence of the counsel after notices had been given to them.

Narasimham J.

I agree.


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