1. The petitioner Gambhirmal filed an appeal against the order of remand passed by the learned District Judge, Nagaur on 12th May 1945 which for reasons mentioned hereafter was treated as a revision and is being dealt with accordingly.
2. One Gyanchand filed a suit in the Court of Thikana Nimaj on 17th September 1943 on the allegation that a certain house and a Nohra situate at Papar were mortgaged with possession by his father Chandan Mal to Shobha Chand and Kalyan Chand in Section 1948 for RS. 500 and that Udai Chand defendant 1 was their sole heir and legal representative. It was alleged that the predecessor-in-title of Udaichand had submortgaged the properly to the ancestors of defendants 2 to 7 viz., Simrathmal, Samirmal, Gambhirmal, Mt. Dhapi, Mt. Teenja and Manakchand, and by certain arrangements between the and defendants, the property was now in possession of Mt. Dhapi and Teeaja. It wag stated that as the defendants refused to redeem the property on tender being made to them, the plaintiff came to file this suit.
3. Defendants 1, 4, 6 and 7 did not enter appearance. It was contested by Mst. Dhapi who denied the plaintiff's title to the property and mortgage or submortgaged alleged by him and pleaded that the ancestors of defendants 2 to 7 got into possesion of the property sometime in Section 1919 in lieu of certain debts outstanding against Sejmal Sobhachand who handed over the property to them. It was stated that on partition among the members of the family, this property came into share of Khubchand husband of Mt. Dhapi and Phoolchand husband of Mt. Teenja. It was further alleged in the additional pleas that the plaintiff served a notice on the predecessors in title of defendants 2 to 7 to deliver possession of the property on 13th June 1892 on the ground that he had redeemed the property from Sobhachand Kalyanchand in Section 1948 but they had denied the plaintiff's title and refused to vacate and, therefore, ever since that date they and their successors were in adverse possession also. In other para of the written statement, they mentioned that Rs. 3539/15/- on account of principal and costs of improvements and interest were chargeable on the property.
4. Samirmal joined in the written statement of Mt. Dhapi while Samrathmal though traversing the plaintiff's allegations denied the partition among the predecessors of defendants 2 to 7.
5. The plaintiff by a re joinder reiterated his claim and the fact of the mortgage having been effected as stated in the plaint.
6. The trial Court framed 7 issues of which the following are relevant for the purpose of this revision:
'(3) Whether the Haveli and the Nohra belonged to the plaintiff and his ancestors mortgaged the same to the ancestors of defendant 1.
(4) On proof of issue 3 whether the ancestors of defendant 1 sub-mortgaged the sald property to the ancestors of defendants 2 to 7 who thereby got possession of the same and the plaintiff is entitled to redeem it.
(7) Whether defendants 2 to 7 are in adverse possession of the property.'
7. After a lengthy trial, the trial Court found on issues 3 and 4 that the plaintiff bad failed to prove the alleged mortgage of Section 1948 as also the sub-mortgage in favour of the ancestors of defendants 2 to 7. On issue 7, he found that in their reply to the notice of 13th June 1892, the ancestors of defendants 2 to 7 did cot assert their ownership over the property and, therefore, their possession was not adverse to that of the true owner.
8. In view of the result on issue 3, the trial Court dismissed the suit.
9. The plaintiff filed an appeal in the Court of District Judge, Nagaur, and during the course of hearing filed an application on 31st March 1949 stating that according to certain documents produced by the contesting defendant, it appeared that the mortgage was effected by the ancestor of the plaintiff in Section 1921 for a sum of Rs. 1300 out of which Rs. 600 had been repaid and that the plaintiff who was a minor had recently come into possession of certain documents in support of the aforesaid facts deducible from the defendant's documents and prayed (1) that the documents newly discovered as detailed in the application be allowed to be produced as additional evidence and (2) the plaint may be permitted to be amended in the light of the facts mentioned above. Although not specifically stated in the application, the plaintiff seems to have intended to amend the plaint so as to claim redemption of a mortgage alleged to have been affected in Section 1921 for the sum of Rs. 1300.
10. The learned District Judge, Nagaur was of opinion that the amendment only related to the change in the date of mortgage and the amount secured under it. Belying on Ramaswami v. Venkatanarayana, A. I. R. (13) 1926 Mad. 128 : (92 I. C. 330) and Chimnaji v. Sakharam, 17 Bom. 365, he permitted the plaintiff to amend his plaint. He also directed admission of the Additional documentary evidence on the ground that the material on record was not sufficient for the proper disposal of the case and this additional evidence wag necessary to remove inherent lacuna or defect in the case. He was conscious that the case will have to be tried de novo on the allegations now forming the basis of the suit and he set aside the decree of the lower Court and remanded the case to the Court of Munsiff Bilara for decision afresh on merits. The documents admitted in evidence were also sent to the trial Court. The learned District Judge, however, expressed an opinion on a portion of the case and held that defendants 2 to 7 were unable to prove that they were the owners of the house or were in adverse possession of the same.
11. The contesting defendant Mt. Dhapi in the meanwhile is alleged to have adopted Gambhirmal and it is he who has filed the appeal against the order of remand. The learned advocate for the appellant at the outset stated that the appeal had been filed because a decree bad been prepared by the learned District Judge but that it may be treated as revision if the order of remand is considered to be under the inherent powers of the Court under Section 161, Civil P. C. and the Court may be pleased to interfere. After hearing the parties, it appeared that the appellant virtually challenged the jurisdiction of the District Judge both in allowing amendment and in admitting additional evidence and the appeal was, therefore, directed to be treated as a petition in revision and is being dealt with accordingly.
12. A preliminary objection was taken that an order allowing amendment of the plaint was not open to revision firstly, because it was only an interlocutory order and the interference, if any, could only be made when 'a case' is decided; and secondly, the lower Court having jurisdiction to adjudicate upon the application for amendment gave a decision which even if erroneous in law could not be interfered with in revision.
13. The interpretation of the word case appearing in Section 118, Civil P. C. has been differently made in the various High Courts. The Allahabad view is that an interlocutory order in a suit which did not decide the suit itself is not a 'case decided' and consequently an order allowing amendment of plaint was not open to revision, Sunder Lal v. Mt. Razia, A. I. R. (21) 1934 ALL. 785 : (152 I. C. 886). Several High Courts in India have followed the Allahabad view but in a recent Full Bench decision of the Lahore High Court presided over by seven Judges.Gurdevi v. Mohammad Bakhsh, A. I. R. (30) 1943 Lah. 66 : (I. L. R. (1913) Lab. 257), the entire case law was reviewed and it was held that the word 'case' is wide enough to include the decision on any substantial question in controversy between the parties which affect-ed their rights even though such order is passed in the course of the trial of the suit.
14. As would be explained later, the amendment sought purported to substitute one cause of action for another and it was a substantial question in controversy between the parties whether the plaintiff was entitled to so change his cause of action as to enable him to abandon his previous suit and to give him a right of obtaining adjudication on a new claim. In my opinion, therefore the decision of the petition for amendment was a decision of a case within the meaning of Section 116 of the Code.
15. As regards the next point, it was urged by learned counsel for the non-applicant plaintiff that where the lower Court had applied its mind to the case before it and duly considered the facts and law applicable thereto the High Court will not interfere in revision although the decision may be erroneous. It was argued that where the Court had jurisdiction to decide the question before it and did decide it, then, even if the decision was wrong, it was not a case of exercising jurisdiction illegally or with material irregularity. Reliance was placed on Ko Gaung She v. R. M. V. S. Firm, A. I. R. (21) 1934 Rang. 306 ; (150 I.C. 1055), Murli Shukul v. Lalta Singh, A. I. R. (30) 1943 oudh 300 : (208 I. C. 45), Majahar Ali v. Mafijaddi Sardar, A. I. R. (23) 1936 cal. 706 : (166 I. C. 127), Ramchandra v. Birendra Bikram, A. I. R. (29) 1942 oudh 431 : (201 I. C. 277) and Krishnadevanand v. Kapil Deo, A. I. R. (29) 1942 pat. 251: (21 pat. 197).
16. It is unnecessary to deal with these cases as the decisions therein are based on two Privy Council authorities reported in Amir Hassan Khan v. Sheo Baksh Singh, 11 I. a. 237 : (11 Cal. 6 P. C.) and Balakrishna Udayar v. Vasudeva Aiyar, 44 I. a. 261 : (A.I. R. (4) 1917 P. C. 71). In the first case their Lordships were pleased to observe as follows :
'The question then is did the Judges of the lower Courts In this case in exercise of their jurisdiction act illegally or with material irregularity. It appears that they had jurisdiction to decide the question which was before them and they did decide it. Whether they decided lightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally on with material irregularity.'
In the second case their Lordships observed :
'It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law and (act in which the question of jurisdiction is not involved.'
Both these decisions were again considered in a recent decision of their Lordships of the Privy Council in Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, A. I. R. (36) 1949 P. C. 156: (76 I. A. 67). It was explained in this decision that 'the section empowers the High Court to satisfy itself upon three matters : (a) that the order of the subordinate Court is within its jurisdiction, (b) that the case is one in which the Court ought to exercise jurisdiction and (c) that in exercising jurisdiction the Court has not acted illegally that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon question of fact or law.' Another recent decision of their Lordships on the interpretation of Section 115, Civil P. C. is report, ed in Joychand v. Kamalaksha Choudhury, A. I. R. (36) 1949 P. c. S39 : (76 I. A. 131), Their Lordships have observed :
'There have been a very large number of decisions of Indian High Courts on Section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity BO as to justify interference in revision under Sub-section (c) nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b), and Sub-section (c) can be ignored.' It was further observed that 'the cases of Babu Bam v. Munnalal, 49 All. 454 : (A. I. R. (14) 1927 All. 358) and Hari Bhikaji v. Naro Vishwnath, 9 Bom. 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is in the view of the High Court), In the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess, and the High Court held wrongly, their Lordships think, that it had no power to interfere in revision to prevent such a result.'
17. It would appear from above that the exposition of law as made by their Lordships of the Privy Council in the above two recent cases has thrown fresh light on the interpretation of Section 115 of the Code. The question which therefore arises in this case is whether the lower Court has acted contrary to the provisions of any law or has committed some error of procedure as pointed out by their Lordships in Venkatagiri's case (A. I. R. (86) 1949 p. c. 156 : 76 I. A. 67).
18. The two oases relied on by the lower Court in accepting the amendment, in my opinion, are distinguishable on facts. In Rama-swami v. Venkatanarayana, A. I. R. (13) 1936 Mad. 138 : (92 I. C. 330) the defendant had agreed to deliver 7 1/2 candies of paddy on Pos vadi 30 every year for 8 years in order to liquidate a debt and on failure to do so in any year, he agreed to pay the market price prevailing on Falgun vadi 30 of the same year. It is clear that there was no change in the case of action which was the failure to deliver the grain according to the contract, but only a change in the date of the accrual of the cause of action was prayed for so that the claim may be brought according to the terms of the same contract. The basis of the cause of action was not changed. In other word, the contract of which breach was complained was not desired to be substituted by any other contract.
19. In Chimnaji v. Sakharam, 17 Bom. 365, plaintiff filed s suit for redemption of a mortgage alleged to have been executed in 1649 A. D. for a sum of Rs. 176. The defendant admitted his status as mortgagee but pleaded that the mortgage was for RS. 365 and did not admit the date of the mortgage. The plaintiff was allowed to increase the valuation of the claim to Rs. 256 The Court, however, dismissed the suit on a finding that the mortgage alleged in the plaint that is, for RS. 176 was not proved. The High Court remanded the case for decision on merits on the basis that the claim was for redemption of a mortgage for Rs. 266. It would be clear that, in the above case, the defendant admitted his status as a mortgagee, and the debt of mortgage was not sought to be changed. The same transaction of mortgage was the basis of the suit although the amount was changed. Again the High Court was not called upon to express an opinion whether the order of amendment was valid, as the valuation was allowed to be changed in the trial Court, and the case was tried on the amended valuation.
20. In the present case, in the amended plaint which was submitted to the trial Court later on, the mortgagee was stated to be one Otarmal an ancestor of the plaintiff who was alleged to have mortgaged the property on Bhadwa Sud. 3 Section 1921 for RS. 1001 and the period of mortgage was stated to be five years. It was alleged that out of the aforesaid amount Rs. 600 were repaid on Magh Sud 10 Section 1947 and the balance was Rs. 401. It was further alleged that Rs. 350 were payable as interest and after deducting 10 per cent, as batta, the plaintiff expressed his willingness to redeem for Rs. 976. The mortgagees were stated to be Sobha Chand Kalyan Mal and defendants 2 to 6 were stated to be Bub-mortgagees from Sobha Chand Kalyan Mal. The allegations of the suit as originally filed are given in para, 2 of this judgment and a bare persual of the original and the amended plaint is enough to show that by means of the amend-ment, the plaintiff wanted to substitute an entirely new cause of action for the previous one. The names of the mortgagors are different the dates of mortgage are different the amounts secured are different, the provisions as to interest are different and the amounts alleged to be outstanding at date of suit are different. The present case appears to be on all fours with the case reported in Pratap v. Ramsevak, 96 I. C. 304 (ALL.). In this case, the plaintiffs brought a suit to redeem a mortgage dated 5th January 1872 executed by Sheodin in favour of Mohan for Rs. 325. The plaintiffs were transferees from Sheodin'a heirs and the defendants were alleged to be transferees from Mohan's heirs. The defence was that the mortgage of 1372 was paid off by the predecessor intitle of the defendants at the request of the sons of Sheodin and they were put into possession of the property which was in possession of Mohan. The suit was decreed by the trial Court but on appeal the Court held that the mortgage of 1872 had been paid off and dismissed the suit. In second appeal the plaintiffs sought an amendment so as to claim redemption of a subsequent mortgage dated 30th November 1832 for a sum of RS. 1248 and the amendment was allowed by a single Judge of the High Court and a decree followed. On appeal under Letters Patent, their Lordihips Sir Grimwood Maars and Makerji J. observed that
'The plaintiffs should have bean pinned down to the specific case they had set up in the plaint and should not have been allowed to set up a new case in the second appeal.'
The appeal was allowed and the suit was dismissed. In another Bombay case, Govind Rav v. Bagho, 8 Bom. 543, the plaintiff sued to redeem certain lands alleged to have been mortgaged by his ancestors to the ancestors of the defendants in 1823. At the hearing, the deed of mortgage in respect of which the suit was brought, was not produced, but another mort-gage of about the same date was produced, and proved by the plaintiff. The lower Courts passed a decree for the plaintiff but the High Court while reversing the decree observed that:
'Where a particular instrument is sued on as a basis of a light, it is incumbent on the plaintiff to establish his case on that particular cause of action, not on a cause of action merely bearing the same common name or of the same description and so included in the same class.'
21. It was urged by learned counsel for the non-applicant that a Court is under a duty to allow amendment as will enable the real questions in controversy to be tried. Reliance was placed on Birdichand v. Samadaresingh, 1939 M. L. R. 4. The proposition of law so far as it (goes is correct, but the point for consideration Ha which 'question in controversy' whether as alleged in the plaint as originally filed or as newly made out. The questions in controversy between the parties, which have to be brought out clearly and decided are in my opinion the questions in controversy between the parties when they join issue, that is when the defendant puts in his written statement they do not include new questions which the parties neither wished nor intended then to dispute but which at a later stage of the proceedings, either because any party changed its mind or because something had happened thereafter any party thinks it profitable bo dispute. It has been held by their Lordships of the Privy Council in Ma Shwe v. Maung Mo Hnaing, A. I. R. (9) 1922 P. C. 249: (48 cal. 832):
'All rates of Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose so that fall powers of amendment must be enjoyed and should always be liberally exeroiaed; but none the less no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit.'
It has been held in a recent Patna case, Sadhu Saran v. Devnath Saran, A. I. R (30) 1943 Pat. 206: (22 pat. 411 F. B.), that where the amendment sought to be made purported to change the cause of action and would mean retrial of the whole case on a new footing, it could not be allowed.
22. In my opinion the lower Court acted in breach of the provisions of law in allowing the amendment and, therefore, acted illegally in the exercise of its jurisdiction. It can also be said that the Court in allowing the new case to be made out and directing its trial purported to exercise a jurisdiction not vested by law. The order is thus liable to be set aside in revision. A reference may also be made to Mt. Lachmin v. Bhairon, A. I. R. (27) 1940 oudh 367 : (16 Luck. 65), where revision was entertained where the nature of suit was sought to be altered by amendment. The same view has also been taken in a recent decision of the Madras High Court reported in Province of Madras v. R. D. Poddar Firm A. I. B. (36) 1949 Mad. 214: (1948 2 M. L. J. 423), where it was held that where an amendment introduces a fresh cause of action, it could not be allowed and where the lower Court wrongly allows an amendment it acts with material irregularity in the exercise of jurisdiction and the High Court will interfere in revision.
23. The learned counsel for the non appli-cants relied on Sunderlal v. Mt. Razia Begum A. I. R. (21) 1934 ALL. 785 : (152 I. 0. 886) and Mt. Bam Pyari v. Govind Prasad, A. I. R. (28) 1911 oudh 623 : 196 I. C. 432) in support of his argument that an order allowing amendment was not open to revision. These cases can however, be distinguished on facts. In the Allahabad case, the plaintiff had filed a suit for possession of a half share in a house. In the written statement the defendant contended that certain alterations had been made by him in the house and the half share claimed by the plaintiff would be of a value more than Rs. 5000 and, therefore, the Court had no pecuniary jurisdiction. The plaintiff sought to amend her plaint to say that she would be quite content to a half share of what was the house as it stood prior to alterations by the defendant. In other words, the relief claimed by amendment was confined to a smaller property than claimed originally. On a revision being filed by the defendant, the learned Judges refused to interfere. Mukerjee J. who was a party to the decision in this case observed that
'the facts of each case must be considered and having regard to the language of Section 115, it must be decided whether the said facts bring the case within the purview of Section 115 of the Code'.
'In the second case Mt. Bam Pyari v. Govind Prasad, A. I. R. (28) 1941 Oudh 623: (193 I. C. 432) the judgment is a short one and in rejecting the revision, reliance was placed on Parasnath v. Ram Bahadur, A. i. R. (23) 1936 oudh 22 : 411 Luck, 529) and Sunder Lal v. Mt. Razia Begam, A. I. R. (21) 1934 ALL. 785; (152 I. C. 886). The previous oudh case was however, not on the point under consideration. In that case the point under consideration was whether an order of the lower Court calling upon the plaintiff to additional court-fees was open to revision.
24. In my opinion it is not necessary to construe Section 115 in the restricted sense according to the view prevailing in Allahabad specially in view of the recent pronouncements of their Lordships of the Privy Council referred to above.
25. The order of the lower appellate Court allowing amendment is, therefore, set aside.
26. As the order of remand was made in consequence of the amendment), it is also set aside, and the case will go back to the learned District Judge for proceeding farther according to law.
27. In respect of the admission of further documentary evidence, the learned Judge has now to consider their admissibility on the case as it stands prior to the amendment.
28. The revision is, therefore accepted the order allowing amendment of the plaint and the order of remand is get aside and the case will go back to the learned District Judge, Nagaur, for proceeding further according to law.
29. The non-applicant plaintiff will bear the costs of this revision.