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Lagnu and anr. Vs. Mt. Surmi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 23 of 1953
Judge
Reported inAIR1955HP8
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 6, Rule 17
AppellantLagnu and anr.
RespondentMt. Surmi and anr.
Appellant Advocate Man Mohan Nath, Adv.
Respondent Advocate Thakar Das, Adv.
DispositionRevision dismissed
Cases ReferredLalla Ram v. Naresh Chand
Excerpt:
civil - revisionary powers - section 115 and order 6 rule 17 of code of civil procedure, 1908 - revision petition against order disallowing application for amendment of plaint under order 6 rule 17 - subordinate judge refused to permit amendment on ground that amendment would set up new case and defendants would be deprived of valuable right which had accrued to them by lapse of time - order sought to be set aside is interlocutory order - subordinate judge gave his reasons for coming to conclusion that amendment should not be allowed - subordinate judge was well within his jurisdiction in not permitting amendment of plaint - no case made out for interference in revision - revision petition rejected. - .....in favour of his daughter, defendant 2, is concerned.'this was objected to by the defendants. the learned subordinate judge refused to permit this amendment on the ground that the amendment would set up a new case and the defendants would be deprived of a valuable right, which had accrued to them by lapse of time. hence, this revision petition.3. i have heard learned counsel for the parties and, in my opinion, no case is made out for interference in revision. learned counsel for the respondents argued that the revision petition was not maintainable and cited--'mt. suraj pali v. ariya pretinidhi sabha', air 1936 all 686 (fb) (a), where a pull bench of that high court held that:'no revision lies from an order refusing to allow an amendment of a pleading. cases where the amendment comes.....
Judgment:
ORDER

Ramabhadran, J.C.

1. This revision petition arises out of an order passed by the Subordinate Judge, Theog, disallowing an application for amendment of the plaint under Order 6, Rule 17, Civil P. Code. The petitioners filed a suit, in the first instance, against Mt. Surmi, respondent 1, in the Court of the Subordinate Judge, Theog, claiming that, as reversioners of Bairagi, deceased husband of Surmi, they were entitled to succeed to the ancestral properties left by Bairagi, after the death of Mt. Surmi. They alleged that Mt. Surmi was intending to alienate the aforesaid properties in favour of her daughter, Mt. Bishni. They, therefore, sought a declaration to the effect that they were the reversioners of Bairagi and were entitled to succeed to the ancestral properties on the death of Mt. Surmi. They further prayed for a perpetual injunction restraining Mt. Surmi from alienating the aforesaid properties.

2. The suit was contested by Mt. Surmi on the ground that half the properties had been gifted by Bairagi to his daughter, Mt. Bishni, during his life-time. As regards the other half, she denied that she intended to alienate it. She further contended that the properties were not ancestral qua the plaintiffs. At the request of the plaintiffs, Mt. Bishni was impleaded as defendant 2. Subsequently, an application under Order 6, Rule 17 was put in by plaintiffs' counsel seeking permission to amend the plaint in such a way as'to mention the cause of action so far as alienation made by Bairagi in favour of his daughter, defendant 2, is concerned.'

This was objected to by the defendants. The learned Subordinate Judge refused to permit this amendment on the ground that the amendment would set up a new case and the defendants would be deprived of a valuable right, which had accrued to them by lapse of time. Hence, this revision petition.

3. I have heard learned counsel for the parties and, in my opinion, no case is made out for interference in revision. Learned counsel for the respondents argued that the revision petition was not maintainable and cited--'Mt. Suraj Pali v. Ariya Pretinidhi Sabha', AIR 1936 All 686 (FB) (A), where a Pull Bench of that High Court held that:

'No revision lies from an order refusing to allow an amendment of a pleading. Cases where the amendment Comes under some other order of the Court, e.g., the addition or substitution of parties or the striking off of a pleading may amount to a case decided, but an order passed purely under Order 6, Rule 17 does not.'

This Court might interfere in an extreme case,e.g., where a Subordinate Court passes an order, without applying its mind to the correct provisions of the procedural law and where the passingof the order has resulted in creating an impossible situation. I am not, however, satisfied thatsuch a contingency has arisen in the present case.The order, sought to be set aside, is an interlocutory order. The learned Subordinate Judgehas given his reasons for coming to the conclusionthat amendment should not be allowed. This wasa matter entirely within the discretion of theCourt below. If and when the suit is finallydecided, the aggrieved party will have a right ofappeal. In appeal, it will be open to the aggrievedparty to attack the judgment of the SubordinateJudge on all points, including the present order.In--'Lalla Ram v. Naresh Chand', AIR 1952 Him-P and Bilaspur 28 (B), my learned predecessor observed as follows:

'The arriving at a conclusion or decision is a mental operation and the Court cannot be said to be acting in so coming to a conclusion or decision on a question of law or of fact; and so far as arriving at a conclusion or decision is concerned, whether the lower appellate Court decides the questions rightly or wrongly it has jurisdiction to do so, and even if it decides wrongly, it cannot be said to have acted with material irregularity in the exercise of its jurisdiction.'

On the same analogy, I would say that the Subordinate Judge of Theog was well within his jurisdiction in not permitting the amendment of the plaint. Learned counsel for the petitioners suggested that, if amendment was not permitted, it would lead to multiplicity of suits. If this be the ultimate result, the petitioners will have to thank themselves for rushing to Court with an imperfect plaint.

4. In the result, I reject the revision petition with costs assessed at Rs. 30/-. Stay order granted by this Court on 7-7-1953 is discharged.


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