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Nehora Roy and ors. Vs. Radha Pershad Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1880)ILR5Cal64
AppellantNehora Roy and ors.
RespondentRadha Pershad Singh
Cases ReferredLucas v. Tarleton
Excerpt:
practice - amendment of issues--act viii of 1859, section 141--act x of 1877, section 149. - .....in the court at ghazipore, and one in the court at shahabad. they made an application to the judge at ghazipore to set aside the execution proceedings, upon the ground that the certificate by which they were transmitted to the subordinate judge of shahabad under section 284 of the code had been illegally issued by the subordinate judge of ghazipore, and that those proceedings ought to have been held before the district court at ghazipore which passed the decree. in the court at shahabad they brought this present suit; and the claim made in their plaint was not to set aside the execution proceedings, upon the ground that they were without jurisdiction, but on the contrary, admitting the jurisdiction of the shahabad court, they complained that the proceedings had been carried out in.....
Judgment:

Garth, C.J.

1. We think that the appellants are not entitled, under the circumstances, to raise the point upon which they have appealed; and we consider that they were very properly precluded from raising that point in the Court below. It is to be hoped that this is nearly the last scene in a long series of litigation which has been going on between these parties for upwards of twenty years. In the year 1860, a final decree was made by the Sudder Court at Agra, which determined the rights of the parties in a suit which had been going on for a very long time, and that Court sent the decree to the Court of Ghazipore, which was the Court of first instance, to be executed. In January 1867, a readjustment was made by the Government of India of the boundary line between Lower Bengal and the North-Western Provinces, by means of which the whole or the greater part of the property in dispute, which had before belonged to the North-Western Provinces, became a portion of Lower Bengal, and as the Court of Ghazipore had no longer any jurisdiction over the property which had come within the jurisdiction of the Court of Shahabad, the Judge sent the case to the Subordinate Judge's Court at Shahabad, in order that the execution proceedings should be carried out there. For many years after this transfer, the proceedings, which were very length and complicated, were carried on under the direction of that Court. No objection was made by either party that the Court at Shahabad had not jurisdiction to entertain them, and eventually, after that Court had arrived at a final decision the case was appealed to the High Court here, and was. heard by a Division Bench composed, of Mr. Justice Kemp and Mr. Justice Pontifex. This was in March 1876, and still no objection was made by either party to the jurisdiction of the Shahabad Court, in the form in which it is now raised. In point of fact, the present appellants submitted themselves during all this time to the Shahabad Court's jurisdiction, and fought the case there from one stage to another in the hope that the proceedings would be carried out in accordance with their views. They were content to take the chance of this. They appealed to the High Court upon the merits of the case without taking the present objection to the jurisdiction; and the High Court eventually decided against them. They then almost contemporaneously commenced two different proceedings,--one in the Court at Ghazipore, and one in the Court at Shahabad. They made an application to the Judge at Ghazipore to set aside the execution proceedings, upon the ground that the certificate by which they were transmitted to the Subordinate Judge of Shahabad under Section 284 of the Code had been illegally issued by the Subordinate Judge of Ghazipore, and that those proceedings ought to have been held before the District Court at Ghazipore which passed the decree. In the Court at Shahabad they brought this present suit; and the claim made in their plaint was not to set aside the execution proceedings, upon the ground that they were without jurisdiction, but on the contrary, admitting the jurisdiction of the Shahabad Court, they complained that the proceedings had been carried out in certain respects contrary to the intention and directions of the Sudder Court at Agra. The defendant's answer (inter alia) to that plaint was, that the matters regarding which the plaintiffs now sued could only be determined in the course of execution of the decree under Section 11 of Act XXIII of 1861, and that they had taken a wrong course in bringing this suit. Alter the written statement had been put in, the issues were settled. They were framed so as to raise the points relied upon by the parties in the plaint and written statement, and no suggestion was made at that time that the execution proceedings were void or illegal. But on the 6th of August 1877, it appears that, an application was made by the plaintiffs to have another issue framed for the purpose of raising the question whether those proceedings were not altogether void, upon the ground that the Shahabad Court had no jurisdiction to entertain them. The Subordinate Judge, however, considered that the application was one which in the exercise of his discretion he might grant or refuse, and he accordingly refused it. It is clear that what induced the plaintiffs to make this application on the 6th of August, was that they had received intimation that two days before, on the 4th of August, upon the application which they had made to the Court of Ghazipore, the Judge there had decided in their favour that the certificate had been illegally sent to the Court at Shahabad. In this suit then the Subordinate Judge at Shahabad, having refused the plaintiffs' application to add an issue, proceeded to try the case, and decided the other issues against the plaintiffs. The plaintiffs have now appealed, and the only points which they raise are--first, that the Subordinate Judge ought to have allowed the additional issue to be framed; and secondly, that, even under the issues as fixed, the plaintiff's had a right to raise the question of jurisdiction. We have heard both sides very fully upon these points, and we are clearly of opinion that the Judge in the Court below had a right, in the exercise of his discretion, to grant or refuse the application, and that he was quite justified under the circumstances in exercising it as he did.

2. It has been strongly pressed upon us that, under Section 141 of the Code of Civil Procedure, the addition of the proposed issue here was an amendment of the record, which the Court was bound to make, upon the ground that it was necessary for determining the real question or controversy between the, parties.

3. The power of amending issues, which is given to the Courts of this country by Section 141 of the Code, is almost in the same language as the power of amendment given to Judges in England by Section 222 of the Common Law Procedure Act, 1852; and it has been held here, as well as in the English Courts, that a Judge is not bound to make such amendments, except for the purpose of more effectually putting in issue and trying the real question or questions in controversy as disclosed by the pleadings on either side; see Bizjie Bebee v. Monohur Doss (2 Ind. Jur., N.S., 118) and in England, see Wilkins v. Reed (15 C.B., 192); Lucas v. Tarleton (3 H. & N., 116). The pleadings here consist of the plaint and written statements, and unless a Judge can see that the issue proposed to be added or amended will raise some point which is disclosed by the plaintiff's pleadings on the one hand, or by the defendant's on the other, he is clearly not bound under the obligatory words of the latter part of the section to allow the amendment. It is true that in some cases the Courts in the exercise of their discretion have been allowed, under special circumstances, to go beyond this line, and when no injustice would be done to either party, to allow issues to be raised upon matter which does not strictly come within the proper scope of the pleadings; but then the amendment must be made under the first part of the section, which apparently gives a discretion Co the Judge, and not under the obligatory words of the latter portion of the section. Now in this case it is quite clear that the point sought to be raised by the plaintiffs in the proposed issue was never suggested in the plaint, and that it never occurred to the plaintiffs till after the issues had been fixed for trial, and until they had heard of the decision of the Court of Ghazipore. It was an entirely new issue upon an entirely new point; and if it could be raised at all, the case was clearly one of those in which it was for the Judge in his discretion to allow the amendment or not. Then, considering that for ten years past the appellants had been submitting to the jurisdiction of the Shahabad Court, and taking part in carrying out the execution proceedings there; considering also that when they appealed the case to the High Court in 1876, they never thought of raising this question of jurisdiction; considering also that in the present suit they never thought of raising this issue until they had heard the opinion which had been expressed by the Judge of Ghazipore, we think that the Judge acted very rightly, after this long series of litigation, in not allowing the plaintiffs at that stage of the case to raise a point which after all was foreign to the merits. We are now asked on appeal to say that the Judge has exercised his discretion improperly, and to allow the plaintiffs to raise this issue. We are clearly of opinion that if we have a right to interfere at all with the exercise of the Judge's discretion, we ought certainly not to do so in this instance, and the more so, perhaps, because we are now informed that the Allahabad High Court has reversed the decision of the Judge of Ghazipore. We also think it perfectly clear that, upon the issues already raised, it was not open to the plaintiffs to raise the question of jurisdiction.

4. The appeal is dismissed with costs.


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