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Shree NaraIn Vs. Kishanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 15 of St. 2005
Judge
Reported inAIR1952Raj15
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17
AppellantShree Narain
RespondentKishanlal and ors.
Appellant Advocate C.L. Agarwal, Adv.
Respondent Advocate D.P. Mathur, Adv.
DispositionRevision allowed
Cases ReferredBibi Gurdevi v. Mohammad Baksh
Excerpt:
- - an interlocutory order deciding a question of this kind (as distinguished from purely formal & incidental) is a 'case decided',but it will be open to revision only if the other conditions expressly laid down by section 115 are satisfied. a revision lies either when a jurisdiction has been usurped or there has been a failure to exercise jurisdiction vested in a subordinate court. 1607 as well as of the plot no. 1607 as well as of the plot no......was denoted by letters a, b, c, d on the sketch.2. the defts. denied the plff's. title to the land in suit, and pleaded that they had been in possession thereof for about 17 years. the learned judicial officer framed issues, the material being issue no. 1 which runs as follows:'whether the land in dispute, a, b, c, d. is owned & possessed by the plff?'the plff. produced his evidence & when one of his witnesses, devi narain, revenue inspector, who had prepared a plan, was being examined, it appeared from his statement that the land in dispute did not form part of the plot no. 1607, but of 1610. thereupon the plff. made an application for amendment of the plaint to the ellect that instead of plot no. 1607, plot no. 1610 might be substituted in the plaint. the learned judicial officer,.....
Judgment:

Sharma, J.

1. This is a plff's. application to revise the order of the learned Judicial Officer, Shamlat Area, Sambhar, refusing to amend the plaint. The plff. brought a suit with the allegation that the plots Nos. 1607, 1608, 1609, & 1610, along with a few other plots, in the town of Sambhar belonged to him & had been in his possession as owner for a very long time. In August 1943, the defts. encroached upon a piece of land, 185 ft. x 24 ft. which formed part of Khasra No. 1607. The land in dispute was shown in the sketch attached to the plaint. The plff. prayed that the possession be delivered to him of the said land which was denoted by letters A, B, C, D on the sketch.

2. The defts. denied the plff's. title to the land in suit, and pleaded that they had been in possession thereof for about 17 years. The learned Judicial Officer framed issues, the material being issue No. 1 which runs as follows:

'Whether the land in dispute, A, B, C, D. is owned & possessed by the plff?'

The plff. produced his evidence & when one of his witnesses, Devi Narain, Revenue Inspector, who had prepared a plan, was being examined, it appeared from his statement that the land in dispute did not form part of the plot No. 1607, but of 1610. Thereupon the plff. made an application for amendment of the plaint to the ellect that instead of plot No. 1607, plot No. 1610 might be substituted in the plaint. The learned Judicial Officer, holding that the amendment substituted a new subject-matter, dismissed the application. The plff. has now come in revision to this Court.

3. It has been argued by the learned counsel for the applicant that the amendment did not seek to change the subject-matter. The only amendment, that was sought, was with respect to the description of the property in dispute. According to the plff's. case, the plots Nos. 1607 & 1610 belonged to the plff. & therefore the amendment did not cause any prejudice to the defts.

4. On behalf of the opposite party, it has been argued that no revision lies, because the order under revision is an interlocutory order & a revision is not permissible against such an order. For this reliance has been placed upon a Pull Bench ruling of Allahabad High Court reported in 'Mt. Surajpali v. Arya Pratnidhi Sabha', AIR (23) 1936 All 686. In that case, the amendment of the plaint has been refused by the lower Court & the High Court held that no revision lies from an order refusing to allow the amendment of a pleading. Cases where an amendment comes under some other order of the Court, as for example, addition or substitution of the parties of the striking off of pleadings, may amount to 'cases decided', but the order passed purely under Order 6, Rule 17 does not.

5. On behalf of the applicant I have been referred to the rulings reported in 'Kishanlal Babulal v. Ramchand', AIR, (20) 1933 All 374, Rurmal Ramnath v. Kapilman Misar', AIR (22) 1935 All 353; 'Kariya Goundan v. Tirukkaivalu Chetty', AIR (12) 1925 Mad 585; 'Loknath Mukerji v. Abani Nath', AIR (21) 1934 Cal 102; and 'Indubala Dessi v. Lakshmi Narayan', AIR (22) 1935 Cal 102. In these rulings it has been held that a revision lies against an order refusing to amend the pleading.

6. I have considered the rulings reported by both the learned counsel. No doubt, so far as the Allahabad High Court is concerned, it is now an established law that an order refusing to amend the pleadings is not a case decided within the meaning of Section 115, C.P.C. The two rulings of the Allahabad High Court cited by the learned counsel for the applicant have, therefore, no longer any force.

6a. The fact, however, remains that so far as the other High Courts are concerned, it has been held that a revision lies against an order refusing to amend pleadings. The ground, on which a revision was disallowed in the Full Bench case of Allahabad cited above, was that, though the word case' is more comprehensive than the word 'suit', no instance can be quoted of its use in the Code, where it would not at least include 'suit' & that where the case in which revisional jurisdiction of the High Court is invoked, happens to be also a suit, then the suit itself is the case which requires to be decided before the record is called for. An interlocutory order in suit, which did not decide the suit itself, is not a 'case decided', & cannot be interfered with under Section 115, C.P.C. In a Pull Bench ruling of Lahore High Court 'Bibi Gurdevi v. Mohammad Baksh', AIR (30) 1943 Lah 65, it was held that the word 'case' under S, 115, C.P.C., is wide enough to include interlocutory orders passed in a suit. An order by the Court staying a suit before it on receipt of a Robkar from a Debt Conciliation Board under Section 25, Punjab Relief of Indebtedness Act, is a 'case decided' within the meaning of Section 115, C.P.C., & therefore is revisable by the High Court. The Full Bench case of Allahabad High Court reported in A I R (23) 1936 All 686, was cited before their Lordships. Their Lordships, however, held that the view that a branch of a suit is not a case within the meaning of Section 115, C.P.C., is too narrow. Bhide, J., who gave the leading judgment, said:

'I would accordingly hold that from standpoint of language alone, the word 'case' is wide enough to include decision on any matter in controversy affecting the rights of the parties to a suit. This interpretation is supported by the dictionary meaning of the word, by the sense in which it is used in some other sections of the Code itself & by the rule of interpretation which requires that a beneficial construction should be placed upon the provisions of a statute, when this appears to be consonant with its object. The main objection to this wide interpretation seems to be the feeling that it may cause great inconvenience to the parties by delay in the disposal of suits by petitions for revision. But this objection loses its force when it is remembered that the exercise of the revisional powers under Section 115, Civil P.C., is subject to two-fold restrictions. Firstly there are various restrictions expressly mentioned in the section itself. Secondly, there are the other implied restrictions which are to be deduced from the very nature of the extraordinary jurisdiction under Section 115, Civil P. C.............' The very fact that the majority of the High Courts have generally acted, upon the above wide interpretation of the word 'case', as pointed out already would show that the danger of possible inconvenience in this respect has been exaggerated.'

Another member of the Bench, Tek Chand, J., said that the interpretation placed on the word 'case', that a branch of a suit is not a 'case' within the meaning of Section 115, C.P.C., is too narrow. I can see no warrant for the proposition laid down therein that 'case when used with reference to a suit means the whole suit and that no interlocutory order passed during the pendency of a suit is open to revision until the whole suit is decided. The word 'case' is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind (as distinguished from purely formal & incidental) is a 'case decided', but it will be open to revision only if the other conditions expressly laid down by Section 115 are satisfied.

7. The weight of the authorities is in favour of the view that a revision lies against an order refusing to amend a pleading. The reasons given by their Lordships of the Lahore High Court in the Full Bench ruling quoted above, appeal to me & I hold that the order now before me is open to revision.

8. The only question remains whether, under the circumstances of the case, the order should be interfered with a revision. A revision lies either when a jurisdiction has been usurped or there has been a failure to exercise jurisdiction vested in a subordinate Court. It also lies when the lower Court commits any illegality or material irregularity in the exercise of its jurisdiction. In the present case, the plff. alleged that he was the owner of the plot No. 1607 as well as of the plot No. 1610. He attached a sketch of the land in dispute along with the plaint. The subject-matter of the suit was the land A, B, C, D., shown in the sketch. The number of the plot has been mentioned only in connection with the description of the land in suit. The plot itself is not the subject-matter of dispute. The learned lower Court was, therefore, wrong in its view that by the amendment sought for, the subject-matter of the suit would be changed. Under Order 6, Rule 17, C.P.C., all amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The real question in controversy between the parties is whether the land in suit belongs to the plff. Looking to the contention of the plff. that he is the owner of the plot No. 1607 as well as of the plot No. 1610, it would not be reasonable to shut him out from proving his case simply because he has mentioned a wrong plot in connection with the land in suit. By doing so, the Court will be prevented from determining the real question in controversy. In my view, the lower Court committed illegality in the exercise of its jurisdiction in refusing to amend the plaint as it acted in breach of the mandatory provisions of Order 6, Rule 17, C.P.C., which lays down that all such amendment shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The order of the lower Court is, therefore, liable to be set aside.

9. The application for revision is allowed, & theorder of the lower Court refusing to amend theplaint, as prayed, is set aside. The case is sentback to the lower Court with a direction that theplaint be amended, as prayed, provided the plff,pays Rs. 25/- as costs to the contesting defts. Sofar as the costs of this revision are concerned,the parties shall bear their own costs.


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