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Sukumar Chatterjee Vs. Kiran Chandra Mitter - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4641 of 1963
Reported inAIR1964Cal439
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 6, Rule 17; ;Constitution of India - Article 227; ;Evidence Act, 1872 - Section 115
AppellantSukumar Chatterjee
RespondentKiran Chandra Mitter
Appellant AdvocateSubodh Kr. Bhattacharyya, Adv.
Respondent AdvocateSunil Kr. Datta, Adv.
DispositionPetition allowed
Cases ReferredFaqirchand v. Gopichand
- .....115 of the code.(c) though no decision has gone to the extent of holding that all interlocutory orders in a suit or other proceeding are revisable under section 115, an order allowing or amending has been brought within the ambit of tha expression 'case decided' by the madras high court in kariya v. tirukkaivelu, air 1925 mad. 585(2); by the nagpur high court in narayan v. sheshrao, air 1948 nag. 258(f. b.); by the gujarat high court in shantilal chunilal v. shantilal fulchand., : air1963guj195 .on the other hand, even in those high courts which may be said to belong to the opposite camp, except in some old cases (e.g. lr 43 all 5g4 : (air 1921 all 1) (fb) ), no decision has gone to the extent of holding iha! no interlocutory order can be brought under sec. 115, in any cicumstances......

D. Basu, J.

1. In this application under Section 115 of the C. P. Code against an order, refusing a prayer for amendment of the written statement, passed by the learned Judge of the City Civil Court, 7th Bench, on September, 17, J9S3, a preliminary objection has been raised that revision under Section 115 does not lie from an order granting or refusing amendment of pleadings because by such order there is no 'case decided' within the meaning of the section.

2. In support of this objection, reliance has beenplaced by the learned Advocate for the Opposite Partyon certain decisions of the Allahabad, Lahore and SindHigh Courts (such as Dassuma v. Kundanmal, AIR 1946Sind 36), where it has ueen held that an order made underOrder 6, Rule 17 of the C. P. Code is trot revisable under Section 115. ;

3. The broad principle on which these decisions resl is that a 'case decided' in Section 115 means the decision of the claim in a suit, so that an amendment of a pleading, which does not dispose of the claim in the suit or the rights of the parties to the cause, cannot be brought under Section 115. In short the word 'case' did not include a part of a case/ [Buddhu La! v. Mewa Ram, AIR 1921 All 1 (FB)). But as we shall see, this principle has not been adhered to rigidly even in the Allahabad High Court and some interlocutory orders have been held to be revisable under Section 115 even though they may not completely dispose of the suit (Ramrichpal Singh v. Daya-nand Sarup, (S) : AIR1955All309 (FB) ).

4. Thane has, of course, been a judicial controversy on the above question which may be said to be as old as the Code itself and the different High Courts in India have, so to say, been divided into two camps and it is only a decision of the Supreme Court which can now settle this controversy. We find, however, that so far as the Calcutta High Court is concerned, revision has been admitted and allowed from interlocutory orders, including orders relating to amendment of pleadings (e.g., Lokenath v. Abani Nath : AIR1934Cal102 ; Indti-bala v. Lakshmi Narayan : AIR1935Cal102 ; Abdul Rahim v. Abdul Jabbar, : AIR1950Cal379 and we prefer to adhere to that view, for reasons which may be stated briefly as follows :

(a) The word 'case' not being defined in the Code, it should be interpreted literally, with reference to any thing in the context which may be relevant.. In Section 115, the relevant words are --

'The High Court may call for the record of any cas& which has been decided. . . ...' There is a consensus of opinion amongst the High Courts that the word 'case' in this context is wider than the term 'suit' or appeal and that an application for leave to suet as pauper, an application to set aside an 'ex parts' decree or to restore a suit dismissed for default and tha like, which are in the nature of 'independent proceedings', is a 'case' within the meaning of Section 115 (cf. Radha Mohan v. Abbas Ali : AIR1931All294 .

(b) Once it is conceded that the records of a proceeding which is not necessarily a suit may be called for and the decision therein may be revised by the High Court, the emphasis shifts to the word 'decided'.

It is true that a suit is not completely decided unless there is a 'decree' within the meaning of Section 2(2) of the Code of Civil Procedure, or a 'final order1 which has been explained by the Privy Council as 'an order which finally disposes of the rights of the parties', though it is not a 'decree' (Abdul Rahman v. D. K. Cassim, and Sons . Now, as the definition of 'order' in Section 2(14) shows, the word 'decision' is wides than the word 'decree' and all decisions of the Court which are not 'decrees' are 'orders', which include both final and interlocutory orders. It follows that an interlocutory order may claim to be a 'decision' within the meaning of the expression 'case detided' in Section 115 of the Code.

(c) Though no decision has gone to the extent of holding that all interlocutory orders in a suit or other proceeding are revisable under Section 115, an order allowing or amending has been brought within the ambit of tha expression 'case decided' by the Madras High Court in Kariya v. Tirukkaivelu, AIR 1925 Mad. 585(2); by the Nagpur High Court in Narayan v. Sheshrao, AIR 1948 Nag. 258(F. B.); by the Gujarat High Court in Shantilal Chunilal v. Shantilal Fulchand., : AIR1963Guj195 .

On the other hand, even in those High Courts which may be said to belong to the opposite camp, except in some old cases (e.g. LR 43 All 5G4 : (AIR 1921 All 1) (FB) ), no decision has gone to the extent of holding iha! no interlocutory order can be brought under sec. 115, in any cicumstances. In AIR 1946 Sind 36, which is-relied upon on behalf of the Opposite Party before us, it was observed------

'.....It is not prudent to say generally that no application in revision will lie against an interlocutory order'. Evert the Full Bench of the Allahabad High Court in Mt. Suraj Pali v. Ariya Pratinidhi Sabha : AIR1936All686 , which took the view that an order of amendment of 3 pleading under 0. 6, r. 17 was not a 'case decided' was constrained to concftde that amendments under other provisions of the Code, e. b. , by way of substitulion or addition of parties, striking off pleadings, constituted a 'case decided' within the meaning of sec.- 115. A larger scope for admitting other interlocutory orders into the fold of sec. 115 has been opened by the later Full Bench of the Allahabad High Court in (S) : AIR1955All309 (FB).

With respect, we ara unable to see the distinction, on principle, between orders under rr. 16 and 17 of 0. 6. Under Rule 16, the Court has the power to 'strike' out or amend' 'any matter in any pleading which may be unnecessary....or which may tend to prejudice .... the fair trial of the suit'. Under Rule 17 on the other hand, the Court has the power 'to allow either party to..... amand his pleadings in such manner.... as may be necessary for tha purpose of determining the real questions in- controversy between the parties'. It is evident that the object of both the Rules is the same, nsmely, to secure the proper administration of justice and a fair trial of the suit, by weeding out all that is unnecessary or by admitting ail that is necessary for that purpose (vide : AIR1935Cal102 . There is a 'decision', in either case as to what is 'necessary' and what Is 'unnecessary' and the Court can make its order under either provision only after applying its mind to that question.

The test upon which the Allahabad High Court considers that some interlocutory orders may be revisable, though not all, is that of an 'independent proceeding' as has been explained by the Full Bench in Gupta & Co. v. Kirpa Ram Bros. : AIR1934All620 . thus--

'The word 'case' is not an exact equivalent on the word 'suit'.....At the same, time, it does not include, every order that is passed by a Court during trial of a suit or proceeding pending before it. It cannot be a case unless it is a proceeding which can be regarded as something separate and in a sense independent from the suit under hearing, and the termination of that proceeding should be somewhat different from mere orders passed in the ordinary trial of the suit itself.' In our opinion, a proceeding for amendment of a pleading under Rule 17 of Order 6 is a 'separate and independent' proceeding, in the same way as a proceeding for striking off a pleading or part thereof under Rule 16 of the same Order. Neither proceeding is a trial of the issues involved in the suit itself but both constitute an aid for determining what the real issues between the parties are, and both proceedings terminate in an order which is separate from thai termination of the suit itself.

In Sarajubala v. Mohini : AIR1925Cal204 , this Court, in revision, let aside an order of a Subordinate Court framing additional issues which were found to be unnecessary for the decision of the dispute between the parties. An order debarring a necessary plea or admitting an unnecessary one does not, on principle, stand on a different footing.

Nor is it easy to understand the distinction, from the standpoint of Section 115, between an order of improper refusal of a necessary party, under Order 1, Rule 10(2), and the refusal to allow a necessary amendment of a plaint or a written statement, under Order 6, Rule 17. The principle underlying Order 1, Rule 10(2) is that all those parties must be on the record 'whose presence before the Court may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all the questions involved in the suit'.' There is a consensus of opinion that an order of improper refusal to add a necessary party or of Improper addition of an unnecessary party, is revisable {Promotha Nath v. Rakhal Das, II Car L J 420; Khettramoni v. Shyantachurn Kundu, ILR 21 Cal 539; Secy, of State V. Murtigesa Mudaliar : AIR1929Mad443 : Kali v. Tulsi, ILR 4 Pat 723 : (AIR 1926 Pat 207); Phulkifmari v. State, (S) : AIR1957All495 . If so, there is no apparent reason why the refusal to allow an amendment of the pleading under Order 6, Rule 17, which is 'necessary for the purpose of determining the real question in controversy between the parties' should not be open to revision.

(d) Of course, the party who is aggrieved by an inter-locutcry order may assail it in his appeal from the decres eventually passed in the suit. But, as observed by tha Division Bench in : AIR1935Cal102 , the High Court should interfere with interlocutory orders in revision where such inter-ference is neceissary in order to avoid irreparable injury, failure of justice or multiplicity of proceedings (see also Bir Babu v. Raghubar AIR 1947 Pat 469. Thus, revision will lie against an order refusing an amendment of pleading where such amendment is necessary to determine the-real controversy between the parties and where such' amendment not being allowed and the relevant evidence not being on the record, the Appellate Court would be constrained to send back the case on remand.

(e) There is a respectable body of cases wrere It has been held that, even if it be assumed that the language of Section 115 of the C. P. Code would not comprehend an Interlocutory order, such as an amendment of pleading, the High Court has ample power to interfere, in proper cases, in exercise of its supervisory jurisdiction under Section 107 of the Government of India Act, 1915 : AIR1950Cal379 . This provision of the Act of 1915 has been re-habilitated in Article 227 of 'our' Constitution and, under that Article, it is the constitutional burden of the High Court to interfere where there has been a defect of juris-diction or refusal to exercise jurisdiction (vide Waryam v. Amarnath, : [1954]1SCR565 ; Civil Appeal No. 602 of 1951, D/- 16-1-1962 (SC), S. M, S. SheiK Jalal-ud-Din v. S. K. Sheik Jalal-ud-Din; Dahya Lal v. Rasul-Mahomed Abdul Rahim, Civil Appeal No. 516 of 1960 (SC) ). There is no reference in Article 227 to final or Inter-locutory orders, and the High Court can exercise this power, even 'suo motu' (vide Barrow v. State of U. P., 0043/1958 : AIR1958All154 ; Faqirchand v. Gopichand, , to keep the subordinate courts and tribu-nals 'within the bounds of their authority, to see that they do what their duty required and that they do it In a legal manner'.

5. ln the case before us, there has been a refusal to exercise his jurisdiction under Order 6, Rule 17, C. P. Code on the part of the learned Judge of the City Civil Court in that he did not consider whether the amendment sought by the defendant in his pleading was 'necessary for the purpose of determining the real questions in controversy between the parties'. Looked at from the othar standpoint, a Court has no jurisdiction to refuse a prayer for amendment without considering this question upon which his jurisdiction under Order 6, Rule 17 is founded. When this question is not determined, the resultant order becomes without jurisdiction because it cannot be upheld as an order under 0. 6, Rule 17 of the Code.

6. The impugned order is, accordingly, liable to be set aside whether under Section 115 or under Article 227 of the Constitution. The preliminary objection is, therefore, overruled.

7. Coming now to the merits of the application for amendment in this case, Ejectment Suit No. 1040 of 1961 was brought by the Opposite Party against the Petitioner for eviction on the allegation that he had purchased the. superior interest in the premises from Sarajubala and another, and that after his purchase, defendant has attorned to him as the landlord of the premises. In the original written statement, the defendant contended that there was an agreement for sale between Sarajubala and himself and that plaintiff has purchased from Sarajubala with notice of the prior agreement with the defendant. This was, in substance, a plea that plaintiff had acquired no title to the superior interest by his purchase. Later, by an amendment, the case in the original written statement was forti-fied by stating that tha defendant was in possession in pursuance of the prior agreement for sale with Sarajit-bala. But, if the fact of attornment to the plaintiff-Opposite Party was established, this plea might not be of any avail to the defendant.

8. The present petition for further amendment of the written statement is to introduce a statement thai subsequent to the filing of the written statement or the previous amendment, the defendant has come to know that Sarajubala, who claimed her title to the superior interest under a Will left by the owner of the property Or. Amarendra Nath Mukherjee, was only a 'residuary legatee under the Will and that the administration of that Will not having been completed by the date of the alleged sale to the plaintiff, plaintiff could acquire no title to the property. The learned Judge rejected this prayer on the ground that it raised a plea inconsistent with the original written statement. Here the learned Judge was obviously wrong inasmuch as the defendant was still adhering to his original case that the plaintiff had acquired no title to the superior Interest and was not, accordingly, entitled to evict, -- a fact which, if established, would demolish the effects of his alleged attornment to the plaintiff and also explain his stand in the original statement that he himself had made an agreement for purchasing the superior interest from Sarajubala, which might otherwise preclude him from contending that Sarajubala had no saleable interest to convey to the plaintiff. It is to be noted that it is not urged by any counter-affidavit by the Opposite Party that the statement in paras 10 to 13 of the application before us that the Petitioner had no prior knowledge of the fact that Sarajubala was a residuary legatee, is false. In paras 10 to 13 of the application it is stated that during thependency of the suit for eviction, defendant has broughta suit for specific performance against the Opposite Partyalong with Sarajubala and that it is the dafence of theOpposite Party, in that suit which led the petitioner tomake searches into the records of the Probate proceedingsrelating to the Will of the de-ceased owner Dr. AmarendraMukerjee.

9. In this state of affairs, when the proposed amendment is sought before the parties have gone into trial, antf the facts sought to be introduced are material in determining the legal effects of the plaintiff's purchase from Saraju-bala as well as the alleged fact of attornment by the de-fendant to the plaintiff, the proposed amendment was necessary for the purpose of determining the real ques-tions between the parties', within the meaning of Order 6, Rule 17, and this aspect of the matter, as stated by us earlier, was not considered by the learned Judge at all. No person can be estopped either by attornment, pleading or other conduct where the conduct constituting the estoppel was founded on a mistake of facts. Whether Sarajubala was really a residuary legatee or not is a fact which can be established at the trial only if the proposed amendment were allowed. If the trial Court proceeds with the hearing of the suit and decrees eviction without allowing the defendant to introduce this amendment, the defendant is sure to urge his complaint before the Court of appeal and is likely to obtain a remand for a determination of the question whether the estoppel relied upon by the plaintiff was, in fact, founded on a mistake of facts.

10. As stated before, the learned Judge not having adverted to the material consideration under Order 6, Rule 17, his order in question involves a refusal to exercise his jurisdiction. He has relied upon the Question of prejudice to the plaintiff, but the learned Advocate for the Opposite Party could not refer to any other element of prejudice except that the defendant was guilty of delay in making the present petition for amendment and also that the plaintiff has already been harassed by a previous amendment. But, as has been repeatedly pointed out by the superior Courts, these are considerations for which the defendant may be asked to atona by payment of costs, but his prayer for amendment cannot be refused where the express condition for the exercise of the jurisdiction under I Order 6, Rule 17 is present.

11. In the result, this Rule is made absolute on condition that the petitioner do pay to the Opposite party in the Court below consolidated cost of Rs. 340/- within one month from this date. In default of this payment, this Rule will stand discharged. If this cost is paid, the Court below shall allow the petition for amendment. It is further directed that the statement in paragraph 13 of the application before us, namely, that the petitioner had no prior knowledge of the fact that Sarajubala was a residuary legatee should be clearly inserted in the proposed amendment of the written statement, giving the date of the knowledge of the defendant of this fact.

12. Let the records be sent down early.

Banerjee, J.

13. I agree with the order made by my Lord.

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