1. This Civil Revision has been file by Mangal Dass plaintiff in Suit No. p-3 1969 on the file of Shri Harikrishan Singh Malik, subordinate Judge 1st Class, Delhi against the order of the learned Subordinate Judge dated 11th October 1971, dismissing an application for amendment of the paint filed by the petitioner herein.
2. The petitioner was employed as Head Constable in the Delhi Police Force. Department proceedings were instituted against him on the basis of some complaint. Ultimately he was dismissed form service. He thereupon filed the suit out of which this Civil Revision has arisen for a declaration that the order of his dismissal was illegal, without jurisdiction and against the mandatory provisions of law. He also prayed for areas of salary and allowance etc., from the date of dismissal. The suit was institution by him inform a paupers and he was adjudged as a pauper.
3. Subsequently he filed an application on 18th May, 1971 seeking permission to amend his plaint by adding a paragraph as follows:--
'That even otherwise the plaintiff/applicant is entitled to the aforesaid decree for declaration to the effect that order of dismissal dated 19-9-1966, passed by defendant No.6 and confirmed by defendants Nos.5, 4 and 2 respectively is of no consequence and liable to be set aside since the prosecution and action against the plaintiff/applicant was barred by time according to section 42 of the police Act, 1861 because the action and the prosecution of the plaintiff/applicant was not commenced within three moths after the act complained of was alleged to have been committed to the plaintiff/applicant.'
The ground which the petitioner wanted to take up by amendment of the plaint was that the action prosecution against him was not commenced within three months of the act complained of and thereforee it was barred by time under Section 47 of the Police Act. The application was opposed by the defendants on the grounds that it was malafide and frivolous and that the amendment sought for was not essential for determining the real question in dispute between the parties.
4. Two contentions were urged on behalf of the petitioner (plaintiff). The first was that the court should not inquire at that stage as to whether the petitioner (plaintiff) could succeed or not on the basis of the proposed amendment. The second contention was that on the merits of the new grounds the petitioner (plaintiff) would really be able to succeed. By his order dated 11th October 1971 the learned subordinate judge relying upon the decisions in Kanyilal v. Inspector General of Police Northern Range, Barely, U. P., : (1958)IILLJ25All and in Sisir Kumar Das v. State of Westtion 42 of the Police Act was not applicable to departmental a proceeding and that the petitioner (plaintiff) was thus seeking to the raise a new ground which was not available to him. As regards the other contention on behalf of the petitioner (plaintiff) the learned subordinate Judge held that there was not Explanationn as to why the ground was not taken up earlier and there was nothing to show that the ground was not taken for delaying the disposal of the case and that since the proposed ground was not available to the petitioner (plaintiff) the application. Was malafide. In that view he dismissed the application . it is against the said order that the present Civil Revision has been filed by the plaintiff, Mangal Dass.
5. Shri M. L. Rawal learned counsel for the petitioner, contended that the learned subordinate Judge committed a material irregularity in the exercise of his jurisdiction by disallowing the amendment on the ground that the plea or ground sought to be raised by the amendment was not available to the petitioner (plaintiff). The learned counsel argued that the learned subordinate Judge was not to go into that aspect on the merits of the amendment at that stage and that he erred in giving a finding on the merits of the amendment without even allowing the amendment in the first instance. The learned counsel referred to the decision in Krishna Rao v. Sri Gangadeswarar Temple Air 1949 Mad 433. There is considerable force in the contention . As pointed out in the aforesaid decision the learned subordinate judge ought not to have given his finding on the ground contained in the intended amendment without first allowing the amendment farming an issue thereon, if necessary and allowing both parties to adduce relevant oral and documentary evidence thereon. The effect of recording his finding on the merits of the plea sough to be raised by way of amendment and then refusing to allow the amendment was to shut out the plea of the petitioner (plaintiff) with the result that the party would not have the advantage of conversion the said plea later on in appeal against the judgment in the suit as the plea would not be in the plaint. The impugned order passed by the learned subordinate judge was clearly vitiated by a material irregularity in the exercise of the jurisdiction.
6. For the above reason the Civil Revision is allowed the order of the learned subordinate judge date 11th October 1971 is set aside and the case is remanded to the trail court with a direction that the learned subordinate judge should restore to his file the application for amendment filed by the petitioner (plaintiff) and dispose it of afresh in the light of the observations in this judgment. In the circumstances of the case, I make no order as to costs.
7. The parties are directed to appear before the trial court on 5th May, 1972.
8. Revision allowed.