I.N. Modi, J.
1. This is a civil regular second appeal by the plaintiffs in a suit for declaration and possession which has been dismissed by both courts below for reasons presently to be mentioned. But before I deal with the case on the merits, I feel bound to point out that this is a typical case where rules of procedure have been allowed to override the dictates of justice and for no valid reason whatsoever.
2. This litigation was started on the 11th April, 1947. The dispute is about a certain piece of land measuring 15 yards by 11 yards situate in the town of Bari in Mohalla Sarai which was shown as 'A' in a rough sketch incorporated under paragraph one of the plaint. The plaintiffs put their case in this way. It was alleged that they were the owners in possession of plot B and that there was another plot A to the south of it: but as appears from the proceedings which took place subsequent to the riling of the plaint, the plot A which is in dispute is to the north of the plot B and a good deal of confusion seems to have been caused in this case because of this apparent but unfortunate mistake. The case of the plaintiffs further was that both these plots belonged to one Chena.
In Svt. 1907, Chena is alleged to have granted a usufructuary mortgage of it for a sum of Rs. 65/- to one Sadasukh, and the latter's sonKalla it is said transferred his mortgagee rights to the grandfather of the plaintiffs on Kati Vadi 5 Svt. 1957, as a result of which they came in possession of this plot, that is, plot B. As regards the plot A, the case of the plaintiffs was that theywere also in occupation of this plot which lay adjacent to the other plot B and that they had later purchased it from the heirs and successors of Chena, the original owner by a document dated the 28th November, 1945. The plaintiffs' grievance was that the contesting defendant Ramprasad on a representation that this land belonged to the Town Council of Bari obtained a sale of itfrom the latter. The date of the sale is not mentioned in the plaint; but it appears from the allegations made therein that it must have taken place some time before 1941. The plaintiffs raisedan objection before the Town Council but they were directed to have their rights decided in a competent Court of law. Consequently, the plaintiffs instituted the suit, out of which this appeal arises, for a declaration that the Town Council of Bari had no right to sell the land in question, and, therefore, the sale made by it in favour of the defendant Ramprasad was void and inoperative against the plaintiffs.
It may be pointed out at this place that the plaintiffs did not make any prayer for possession in the plaint as was originally filed but by an amendment thereof they included this prayer, also and this amended plaint was filed in Court on the 27th January, 1954. The plaintiffs besides impleading Ramprasad as a defendant also impleaded the Secretary of the Town Council Bari as a party defendant. It is unfortunate that the case made no progress whatever until the beginning of 1954. The Secretary, Town Council, Bari, did not file any written statement and the suit was contested by the other defendant Ramprasad only. I shall hereinafter refer to Ramprasad as the only defendant in the case for facility of reference.
3. The defence of Ramprasad was that the plaintiffs had no right or title to the land in dispute and that it belonged to the Town Council. He seems to have admitted, however, that the plot B had been under mortgage with the plaintiffs and that the defendant had filed a suit for pre-emption with respect to the sale which had been obtained in respect of that plot by the plaintiffs and that suit was pending. The defendant also contended that the plaintiffs had not described the boundaries of the plot in dispute in their plaint and that it did not really disclose any cause of action. There is no doubt that the plaint in this case was a rather badly drafted one and this has led to much of the trouble which has arisen in this case during all these years. At the time the case came up for framing of issues some time in the month of October or November, 1954, it seems to have been realised that there were certain defects in the plaint and that the plaintiffs should be asked to furnish further and better particulars of their claim.
On the 6th January, 1955, the plaintiffs filed an application in which they gave these particulars and also sought therein permission for amending the plaint. As this was a joint application and was not permitted by the rules, the trial Court rejected it by its order dated the 11th February, 1955, and directed the plaintiffs to file separate applications in the matter by the 18th February, 1955. The Court made it clear in its order that if the plaintiffs wished to amend their plaint, it would be open to them to file a separate application for that purpose. It appears from the record that copies of two applications, one containing further and better particulars and the other seeking permission to amend the plaint which were intended to be moved in Court were handed over to learned counsel for the defendant on the 18th February, 1955, but these were actually filed in Court on the 22nd February, 1955.
4. This brings us to the precise stage which culminated in the order of the trial Court under appeal. That Court has observed in its order thatthere was some discrepancy as regards the measurements of the plot B in the application for amendment and what is called the consequential amendments sought by the plaintiffs. To be exact, the difficulty which seems to have weighed extremely heavily with the trial Court but in my opinion quite unnecessarily was that while the north south measurement of the plot B was mentioned as 10 yards at one place, in the consequential amendment it had been mentioned as 11 yards at another place, and the application for amendment again mentioned it as 10 yards only. The other reason which seems to have prevailed with that Court in rejecting the application for amendment was that while the east-west measurement of plot B was mentioned as 15 3/4 yards in the document of mortgage Ex. 1 (the reference is presumably to the deed by which Kalla son of Sadasukh transferred his mortgagee rights with respect to this plot to the plaintiffs' grandfather) this measurement was put as 15 yards in the application for amendment.
Oppressed, as it were, by these inconsistencies the trial Court held that it was not possible to make any inquiry with respect to the plaintiffs' rights (obviously with respect to the subject-matter of dispute) and it was further of the opinion that no decree could possibly be passed in their favour. The trial Court then generally referred to what it called 'dilatory tactics' adopted by the plaintiffs in protracting this litigation and eventually dismissed the plaintiffs' suit under Section 151, C. P. C. This order was passed on the 3rd March, 1955. The plaintiffs went in appeal to the Civil Judge, Dholpur. The learned appellate Judge by his order dated the 28th November, 1956, held that the order passed by the trial Court was not appealable and in that view of the matter, dismissed the plaintiffs' suit. Aggrieved by this decision, the plaintiffs have now come up in second appeal to this Court.
5. It may be stated at the very outset that a controversy was raised in this Court as to whether the order passed by the trial Court in the circumstances mentioned above did or did not amount to a decree and whether an appeal at all lay against it to the Court below. Learned counsel for the plaintiffs has invited my attention to Abbas Sujjat Ali v. Raza Azamshah, AIR 1941 Nag 223 while learned counsel for the defendant places his reliance on Rahman v. Ahmad Din, AIR 1926 Lah 571, In re, N. Kayambu Pillai, AIR 1941 Mad 836, Jagdish Kumar v. Harikishen Das, AIR 1942 Oudh 362 and Tafazzul v. Shah Mohammad, AIR 1949 All 261. The decision of this controversy centres round the meaning of the expression 'but shall not include any order of dismissal for default' occurring in the definition of 'decree' given in Clause (2) of Section 2, C. P. C. I consider it unnecessary to pronounce any considered opinion on this aspect of the controversy because I am categorically of the opinion that even if the order passed by the trial Court was not appealable to the Court below, a revision would certainly lie against that order to this Court in the circumstances of the case, and I would therefore, leave this matter at that.
6. Turning next to the merits of the case, the main question which arises for decision is whether the trial Court was justified in dismissing the plain-tiffs' suit for the reasons contained in its order under appeal and the gist of which I have already given above. That order has been made under Section 151, C. P. C. It is clear that the suit has not been dismissed by the trial Court after a trial but it thought fit to dismiss it because that Count was of the opinion that there were certain inconsistencies in the case put forward by the plaintiffs even at the stage when they had the opportunity to file an application for the amendment of their plaint. It may also be made clear at this place that the trial Court was not prepared to hold in spite of the alleged defects in the plaintiffs' case as was put forward in the original plaint or as was sought to be made out in the application fur amendment that the plaint disclosed no cause of action.
At this place I should like to take the opportunity of mentioning that I have gone into the plaint rather carefully, and as I have already adverted to above it was rather crudely drafted inasmuch as the boundaries of the plot which was the subject-matter of the suit were not mentioned at all therein and further that the disputed plot was wrongly mentioned as being in the south of the plot B while it was actually in the north of that plot; but all that notwithstanding it cannot be premised with any justification that the plaint did not disclose a cause of action particularly having regard to the circumstance that these defects which existed in the original plaint were clearly and definitely sought to be remedied by the application for amendment.
The Court of first instance however pointed out certain inconsistencies in the application for amendment and the so-called consequential amendment and the document of sale of mortgagee rights; but it seems to have completely forgotten that these discrepancies, if any, related to the plot B which, be it noted, is not the subject-matter of dispute between the parties. The dispute between the parties relates to the plot A, and so far as the measurements of this plot are concerned, they have been consistently given by the plaintiffs as 15 yards east-west by 11 yards north-south. Then again, as regards the rather stupid error which was made in the plaint while describing the plot A which was the plot in dispute to the south of the other plot B (about which there is no dispute,) this was also made patently clear by the plaintiffs that the disputed plot A was really to the north of the plot B and not to its south.
Reference may be made in this connection to the two applications, both made on the 22nd of February, 1955, one of which was the application giving further and better particulars of the subject-matter of the plaint and the other was the application for seeking amendment of the plaint. I am entirely unable to understand how in these circumstances the trial Court came to the conclusion to which it did that the plaintiffs' suit was incapable of being tried out on the merits or made the subject-matter of a decree one way or the other. The entire approach of that Court, therefore, to the case seems to me to have been of a rather perfunctory character engendered by inadequate appreciation of the real facts of the case,
It may also be pointed out at this place that the trial Court was wrong when it observed in itsorder under appeal that the plaintiffs had neither filed a proper application for amendment of the plaint nor an application giving further and better particulars of their claim. It was no part of its duty at that stage to see whether the plaintiffs' claim was well or ill-founded, because a conclusion as to that could only be reached after the case should have been tried out on the merits and each party should have had an opportunity of establishing its case by proper evidence such as it thought fit to adduce.
7. The question in these circumstances is whether the trial Court had acted rightly in throwing out the plaintiffs' suit in a rather summary and arbitrary manner which it thought fit to adopt. I have no hesitation in answering this question in the negative and should like to point out in unequivocal terms that the case has not had a fair deal as it should have had. I would also take the opportunity of drawing the attention of the Courts below to the salutary provision contained in Order VI Rule 17 of the Code of Civil Procedure which allows the Court at any stage of the proceedings to permit either party to alter or amend his pleadings in such manner and on such terms as may be just, and it further lays down that all such amendments should be allowed as may be necessary for the purpose of determining the real question in controversy between the parties.
The principle underlying this provision could not perhaps be better brought out than the forceful language of Bowen L. J. in Cropper v. Smith, (1884) 26 Ch D 700 which is this:......it is a well established principle that theobject of Courts is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their cases.....I know of nokind of error or mistake which, if not fraudulent orintended to overreach, the Court ought not tocorrect, if it can be done without injustice to theother party. Courts do not exist for the sake ofdiscipline, but for the sake of deciding matters incontroversy, and I do not regard such amendmentas a matter of favour or of grace.........It seems tome that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.' Can it be said in the present case that the kind of amendments which the plaintiffs wanted to make in their plaint were fraudulent or dishonest or that the allowance of them would have occasioned any injustice to the other party which could not be compensated by an appropriate order of costs if necessary. To this question, in my opinion, there can be only one answer and that is that the amendments asked for should have been allowed and the trial Court committed a grave error in the exercise of its discretion in refusing them.
Having regard to all the circumstances to which I have made detailed reference above and to prevent the further wastage of time, I would allow the amendments which the plaintiffs sought to make by their application for amendment of the plaint presented in the trial Court on the 22nd February,1955. The course which the case should take should be perfectly clear to the trial Court. The defendant shall be given an opportunity to file his written statement to the amended plaint and thereafter issues shall be framed and the case shall proceed to trial without any loss of time. It is indeed greatly to be regretted that a simple case like the present should have been allowed to drag for very nearly fifteen years without anything substantial having been done to decide it on the merits.
8. Before I conclude I wish to deal briefly with the situation which would have arisen if I had held in agreement with the view of the trial Court that the plaintiffs had failed to furnish the further and better particulars of the statement of their claim or had failed to move a proper application for amendment of the plaint. Would the trial Court be justified in dismissing the suit in a situation like this under Section 151 of the Code of Civil Procedure? Now there can be no two opinions that speaking as a rule, it is the duty of the Courts to adjudicate a case on the merits, that is, as respects the rights of the parties to an action as the result of a trial at which all the parties thereto have had a fair opportunity to substantiate their case. In other words, the dismissal of a suit should normally follow upon a trial and not before.
Exceptional situations, however, do arise such as where a plaintiff absents himself at the hearing or he dies and his legal representatives are not brought on the record or the plaint discloses no cause of action whatever. In such and similar eases, the suit has to be either dismissed or the plaint has to be rejected as the case may be. But even here the Code of Civil Procedure has thought fit to make provisions which would give relief where such relief is called for,
Thus where a suit has been dismissed for default of the plaintiff's appearance on the date fixed for the hearing thereof, the plaintiff has been afforded an opportunity to have his suit restored where he is able to satisfy the Court that there was sufficient cause for his non-appearance --such as illness or failure of communications and so on and so forth. See Order IX Rule 9, C. P. C. Similarly where a plaint discloses no cause of action, the Code of Civil Procedure provides that the Court shall reject the plaint (See Order VII Rule 113 but not that the suit be dismissed and in such a case it would be open to the plaintiff to file a fresh suit disclosing a proper cause of action if he chooses to do so.
9. The principle underlying all these provisions is the substantial advancement of the interests of justice by an adjudication of the contending claims of the parties on their respective merits. Judged by this fundamental test, should a Court take the extreme step of dismissing a plaintiffs claim because he fails to file further and better particulars or fails to amend his plaint? 'No' is my answer to this question so long as the plaint discloses a cause of action which can be tried and adjudicated upon one way or the other on the allegations made therein.
If the suit can possibly proceed to trial on such allegations as have been made in the plaint, then the proper course for the Court should be toproceed to try it, raise appropriate issues therein and allow evidence to be led and to pass a decree in the suit on the merits such as may be called for. To dismiss a suit under the provisions of Section 151, C, P. C. or under any other provision under such circumstances should smack of being something in the nature of a punishment, and such a procedure, I submit, should not be lightly resorted to and would be justified in an extreme and a flagrant or contumacious case where the plaint as I have said discloses no cause of action or where the conduct of a party amounts to a clear abuse of the process of the Court.
10. Putting the whole matter from yet another angle, in so far as a case raises a question of discretion, such discretion must be exercised according to judicial principles and not in a fanciful or capricious or arbitrary manner. It is on this principle that I maintain that the Court should be always willing to allow the amendment of a pleading where there has been a clerical error or a bona fide or an inadvertent mis-description of the property which is the subject-matter of the suit or where there has been a mistake of fact. The allowance of such amendments tends to avoid multiplicity of suits and advance the interests of substantial justice which, after all is said and done, is the supreme object of all administration of justice. Even where such opportunity is afforded but not availed of, a further question arises whether the Court should dismiss the suit. I feel disposed to answer this question by the same test which I have indicated above namely whether it is reasonably possible to try the suit as it stands.
A slight inconsistency here or there in the allegations made in the plaint, by itself, should hardly be a sufficient reason and should not be made an excuse for throwing out the plaintiffs suit and might well be left to be straightened out at the trial of the case. The point I wish to emphasize is that snap judgments serve no useful purpose and must be deprecated. This is, however, not to say that in a proper case the Court has not the power and the discretion to dismiss the suit for flagrantly disobeying the orders of the Court. Such power it doubtless has but it should be remembered that it has to be exercised rarely and after utmost caution and not as an expedient if I may call a spade a spade to get rid of an old case on a possible pretext, off the Court's file, as is sometimes unfortunately done.
11. Having thus indicated the correct principles which should apply in a matter like this, I would for reasons set out above at length, hold that in the present case the plaintiffs had filed not only the application giving further and better particulars of the property claimed by them but they had also filed an application for being allowed to amend their plaint and with these applications having been filed, I am definitely of the opinion that there should be no vagueness or incompleteness about the subject-matter of the plaint and that the Court of first instance had acted rather arbitrarily in rejecting these applications and the action taken by it cannot be defended on any sound judicial principle, and I further desire to say that if it bad allowed these applications as it should have,all this time would not have been needlessly thrown away.
12. In the result, I would allow this appeal,set aside the orders of the Courts below and sendthe case back to the trial Court for being proceeded with according to law in the light of theobservations made above. This case shall receivehigh priority and shall be finally disposed of withall possible expedition. As to costs, I think thatas much of the trouble has arisen in this case dueto the crude drafting of the plaint and a good dealof the complications that have arisen are the director indirect outcome thereof, the parties shall beartheir own costs of the appeal here and in the firstappellate Court; but further costs shall abide theresult.