Jagat Narain, J.
1. This is a revision application by Prem Raj, defendant No. 6 against an order of the Civil Judge, Jodhpur, refusing to allow an amendment of the written statement.
2. A preliminary objection has been taken that this Court has no power to interfere with the order of the trial court under Section 115(c) C.P.C. Reliance is placed on an unreported decision of their Lordships of the Supreme Court in Radhev Shyam and Ors. v. Ram Auter and Ors. Civil appeal No. 506/1965 decided on 7.2.67. In that case it has no where been held that the High Court cannot interfere in revision under Section 115 with an order allowing on amendment of the plaint or disallowing it The revision application was filed before the Allahabed High Court in that case against an order of the trial court refusing an amendment of the plaint. The learned single Judge of the High Court when deciding the case was under the impression that it was an appeal. On this ground their Lordships set aside the Judgment of the High Court. As by then an appeal had been filed in the H.C. against the decree, their Lordships directed that it was appropriate that the question whether the amendment should be allowed to be considered by the High Court in that appeal. In Keshardeo v. Radha Kishen : 4SCR136 the decision of their Lordships of the Privy Council in Venkatagiri Ayyangar v. Hindu Religious Endowments Board Madras 76 I.A. 67 was quoted with approval. Their Lordships of the Privy Council held that a revision lies under Section 115(c) if the court has committed some error of procedure in the course of the trial which is material in that it may affect the ultimate decision. Allowing or disallowing of an amendment is a procedural matter and a revision lies against the order under Section 115(c)
3. Coming to the facts of the case, one Ummaidram mortgaged his house on 19.4 1948, in favour of Bansilal Chauthmal. Ummaidram died, and after his death, the mortgagees instituted suit No. 19 of 1957 in the court of the Civil Judge on 25.3.1957 against the five sons of Ummaidram. Ummaidram left two daughters and a widow who were not impleaded as parties in the suit. On 15.5.58. the suit was compromised by the five sons of Ummaidram and a decree was passed on the basis of this compromise On 31.1.1958, the five sons sold the house in favour of the mortgagees for Rs. 8,000/-. On 1.6.1958 they executed a rent note for the same. On 12 9.1960 the house was sold by Bansilal Chaulhmal to Premraj defendant for Rs. 8,000/- On 31.5.1960, Premraj obtained an ejectment decree against the five sons of Ummaidram. On 28.9.1964, the widow and two daughters of Ummaidram who were not impleaded as parties to the mortgage suit brought the present suit in the court of the Civil Judge on the allegation that the decree in Suit No. 8 of 1957 as well as the decree in the ejectment suit were not binding on them. They alleged that Ummaidram died after the coming into force of the Hindu Succession Act, 1956, and their share in the house was 3/8th. They prayed for possession over their house after partition. The suit was contested by Premraj Defendant No. 6. The five sons of Ummaidram were impleaded as defendants Nos. 1 to 5. They filed a written statement admitting the claim of the plaintiffs. On the pleadings of the parties one of the issues which was framed was pramed was, as follows:
whether the plaintiffs are bound by the mortgage created by Ummaidram and their suit is not maintainable unless the final decree passed on 15.5.58 is set aside.
This issue was tried as an issue of Law and was decided in favour of the plaintiffs on 12-7-1966. The present amendment application was moved on 11-10-1966. By this amendment, the plaintiff seek to add the following paragraphs to their written statement.
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19- eqnk;yks ua01 rkjh[k 5 mEesnjke ds jgu dh jde dh pqdkus ds fy, edku eqrknko;k dsk cspku fd;k blfy, lqn~nkbZ;ku dk vxj fgLlk edku es gksrh Hkh Proportionately ml dtZ dh vnk;xh fd;s vkSj fgLlk ugh ekWx ldrs A
20- edku eqrnkfo;k mEesnjke ds jgus dh vnk;xh es cspk x;k gS vkSj dtZk edku dh dher ls dgh xq.kk T;knk Fkk A vkSj ml dtZ ds eqn~nb;ku ikcUn gS blfy, mudks rdklek djkus dk dskbZ gd ugh gS
4. The amendment was disallowed by the learned Civil Judge on the ground that he had already decided Issue No. 5 and Defendant No. 6 was only making an attempt to re-open the matter which he had already decided.
5. It is true that the pleas which Defendant No. 9 now wishes to take should have been taken by him in his written statement. They were not taken by mistake. The amendments which he seeks contain allegations of fact also which have not been raised in his original written statement. These allegations of fact are necessary for a proper decision of the case. If the defendant is not allowed to raise them in the triad court, he will not be able to base his arguments on them before the appellate court. If on the other hand, he makes a prayar for allowing the amendment before the appellate court, then the litigation will be unduly prolonged because if the appellate court accepts the plea of the defendant, it will have to remand the suit for taking fresh evidence and recording fresh finding.
6. I accordingly consider it expedient in the interest of justice to allow these amendments.
7. As the defendant should have raised these questions in his original written statement, I allow the amendments subject to the payment of Rs. 200/-/- as costs. The costs should be paid in the trial court within one month. If costs are paid within the time allowed then parties shall bear their own costs of this revision application. If, on the the hand, costs are not paid within the time, then this revision application shall stand dismissed with costs.
8.The revision application is decided as indicated above.
9. Let the record be sent to the trial court at an early date.