1. This is a second application by the defendant Atma Ram for revision of an interlocutory order of the trial Court, the first having been dismissed on 14-7-1952. That was an application directed against an order that the preliminary and the other issues be disposed of together. The present revision is directed against an order dated 28-11-1952 allowing the application of the plaintiff respondent under O. 6, R. 17, Civil P. C., to amend the plaint.
2. The present suit was filed by the plaintiff respondent Jhinoo Ram against Atma Ram for recovery of Rs. 5,500/- as unpaid balance ofprice of opium alleged to have been purchased by the defendant on 17-1-1948. The defendant was sued as gumashta of a licence-holder. The writing on foot of which the suit was filed purports to have been executed by the defendant as gumashta of one Nand Kishore. The defendant pleaded, inter alia, that as he was acting as an agent for Nand Kishore he was not personally liable. Two preliminary issues were framed as to the liability or otherwise of the defendant as gumashta of Nand Kishore. Evidence was produced by the parties on these issues, that led by the plaintiff being to the effect that under a trade usage relating to opium in the former Keonthal State a gumashta was in fact a co-principal with or partner of the party for whom he acted as such.
No objection was taken on behalf of the defendant against the production of this evidence. Two applications for amendment of the plaint and other reliefs were thereafter filed by the plaintiff, one on 22-12-1950 and the other on 13-7-1951. As a result of these applications the trial Court allowed the addition of Nand Kishore as a defendant, and it also ordered that the aforesaid preliminary issues and the other issues be disposed of together. The Court further directed the plaintiff to file an amended plaint in the light of this order, which was passed on 8-8-1951.
3. The fact of the defendant having come up in revision to this Court against a portion of the aforesaid order dated 8-8-1951 and the result of that revision have already been stated. The amended plaint was filed on 9-8-1951 impleading Nand Kishore and making certain fresh allegations against the present defendant petitioner Atma Ram. It is the amendment in respect of these fresh allegations which is the subject matter of the present revision. By this amendment two allegations, which did not find place in the original plaint, were introduced to make the defendant petitioner liable personally:(1) that under a trade usage relating to opium, prevalent in the former Keonthal State a gumashta is personally liable as co-principal with the party for whom he acts as such, and(2) that the petitioner used to enter into transactions relating to opium on his own account and responsibility as Nand Kishore was resident abroad.
The second allegation appears to have been framed under Section 230(1), Contract Act. A formal application under O. 6, R. 17, Civil P. C., was also filed by the plaintiff on 12-9-1951 for allowing the said amendments. The amendment was opposed by the petitioner but allowed by the trial Court by an order dated 28-11-1952. It is against this order that the present revision has been filed.
4. It was argued by the learned counsel for the defendant petitioner that the amendment should not have been allowed because the plaintiff sought thereby to set up an entirely new case against the petitioner at a time when a suit instituted on the fresh allegations would have been time barred, because in seeking the amendment in question the plaintiff was acting in bad faith since he preferred the application for amendment with considerable delay and gross negligence in respect of facts which were already within his knowledge, and because the effect of the amendment would be to displace the defence of the petitioner that he was notliable as agent for Nand Kishore. The argument of the learned Counsel for the plaintiff respondent on the merits of the trial Court's order, on the other hand, was that the amendment did not alter the nature of the suit or set up a new case but it elucidated the real case of the plaintiff. And in support of this contention he referred to the fact that the trade usage in question was deposed to by the plaintiff's witnesses after the framing of the aforesaid preliminary issues, and that without any demur on the part of the defendant petitioner. A large number of rulings were cited by the learned counsel for the parties in support of their respective contentions.
5. It is not necessary however to decide as to which of the aforesaid views is the correct one, for the preliminary objection taken by the learned counsel for the plaintiff respondent that the order of the trial Court is not open to revision is, in my opinion, well founded. On this point I need refer to only one ruling since it has been relied upon by both the learned counsel. It is the ruling reported as -- 'N. S. Venkatagiri v. H. R. E. Board Madras', AIR 1949 PC 156 (A). It was laid down by their Lordships in that case as follows:
'Section 115 applies only to cases in which noappeal lies, and where the Legislature hasprovided no right of appeal, the manifestintention is that the order of the trial Court,right or wrong, shall be final. The sectionempowers the High Court to satisfy itselfupon three matters: (a) That the order of thesubordinate Court is within its jurisdiction;(b) that the case is one in which the Courtought to exercise jurisdiction; and (c) that inexercising jurisdiction the Court has notacted illegally, that is, in breach of someprovision of law, or with material irregularity, that is, by committing some error of| procedure in the course of the trial which ismaterial in that it may have affected theultimate decision. If the High Court is satisfied upon those three matters, it has nopower to interfere because it differs, howeverprofoundly, from, the conclusions of the subordinate Court upon questions of fact or law.There can be no justification whatsoever forthe view that Section 115(c) was intended toauthorise the High Court to interfere andcorrect gross and palpable errors of subordinate Courts. It would indeed be difficult toformulate any standard by which the degreeof error of subordinate Courts could bemeasured.'
Now, it cannot be said that in passing the order in question the trial Court exercised a jurisdiction not vested in it by law, or that it failed to exercise a jurisdiction so vested. Nor, indeed, was that the argument of the learned counsel for the defendant petitioner. It only remains to see therefore whether, in the language of their Lordships, in exercising the jurisdiction the trial Court had not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the answer to these questions be in the negative, this Court will have no power to interfere in revision however profoundly it may differ from the conclusions of the trial Court.
6. So far as acting illegally is concerned, strangely enough that phrase appearing in Clause (c) of Section 115, Civil P. C., does not find place in the corresponding paragraph 35 (1) (a) of the Himachal Pradesn (Courts) Order, 1948. There does not really appear to be any justification for the omission for by speaking of only material irregularity the scope of interference in revision has been considerably curtailed, although from the addition of the provisions of Clause (b) to that paragraph the intention of the framers of the Order appears to have been, as was but proper in this newly formed State, to confer wider revisional powers on this Court than are contained in Section 115 of the Code. It may be added that the provisions of Clause (b) are no substitute for, and have not the effect of doing away with, the omitted phrase, since by reason of a Court having acted illegally further consideration of an important question of law or custom would not become necessary. The reason, as would appear from -- 'Beg Ram v. Charan Das', AIR 1951 Him P 16 (B) is that to act illegally is one thing and to decide illegally quite another.
It appears to me that the omission of the aforesaid phrase in cl. (a) was merely accidental. However, it is now for the Legislature of this State to apply the omission. So far as this Court is concerned, it must apply the provisions of paragraph 35 as they stand. This Court is therefore precluded from taking the circumstance of the trial Court having, or not having, acted illegally into consideration in deciding the present revision. All that it can consider is whether that Court acted with material irregularity in exercise of its jurisdiction in the light of the interpretation put upon that phrase by their Lordship's of the Privy Council.
In order to determine this fact the order which is the subject matter of this revision may now be considered. Before I do so, however, it may be pointed out that even if it were open under paragraph 35 of the Order to see whether the Court below had acted illegally, the order in question would not be open to revision since, as shown below, in passing the order that Court has not merely acted, but decided, illegally. It has not merely acted in breach of some provision of law, in the wordings of their Lordships, but arrived at a wrong conclusion on a point of law. The difference between acting and deciding illegally, as already stated, has been pointed out in -- 'AIR 1951 Him P 16 (B)'.
7. The trial Court considered the large number of rulings cited before it by the learned counsel for the parties, and thereafter it observed as follows:
'I have gone through all these ruling's. The following fundamental principles are laid down in all the above rulings, that the Courts are to decide the rights of the parties and not to punish them for the mistakes committed by the parties in the conduct of their cases, that the amendment of the pleadings is the discretion of the Court; of course it is to be exercised judicially and not in an arbitrary manner, or to cause injustice to the other party. Of course, if amendment sets up a new case, it should not be allowed, nor an amendment of the plaint introducing a new claim which would have been barred by limitation at the time when leave was sought,should be allowed, or where the effect of the amendment is to take away from the defendant a legal right, which accrues by lapse of time, and that no amendment should be allowed when there is no good faith, or it changes the subject matter of the suit.
In the case before me Nand Kishore was allowed to be added as defendant, vide my predecessor's order dated 8-8-1951, and plaintiff was asked to file an amended plaint, and defendant No. 1 objects that the amended plaint has changed the entire nature of the suit, that in the previous suit the defendant was shown as gumashta of Nand Kishore, while in the amended plaint, the defendant No. 1 is being held equally liable. I do not agree with this interpretation. The plaintiff's case is that gumashta is also personally liable, and it is why the plaintiff produced evidence to that effect, and that the defendant No. 1 did not object to the production of such evidence. In this connection the wordings of the order dated 8-8-51 are very helpful when my learned predecessor, in the body of the said order, remarked as under: 'When the issues were struck, I was under the impression, and that impression was shared by the learned counsel for the defendant, that gumashta means an agent. The issues were struck on that assumption. The plaintiff has led evidence that according to the usage prevalent in opium trade a gumashta is a partner of the licensee and that he is not merely an agent. This evidence was a surprise. But it has been led without any demur on behalf of the defendant.' Under that circumstance it cannot be said that the plaintiff has changed the nature of the suit, if he has put in the case more explicitly in the amended plaint than it was in the old one.'
It also repelled the contentions that as a result of the amendment the defence of the defendant would be displaced, and that the filing of the application for amendment had been delayed, and it gave reasons for doing so. In the circumstances, it cannot be said, as contended by the learned counsel for the defendant in this Court, that the trial Court committed an error of procedure in passing the order. The obvious reason for this view is that the trial Court has not transgressed any rule of procedure, but it has interpreted the provisions of Order 6, Rule 17, Civil P. C., in a certain way. In other words, it has arrived at certain conclusions of law in interpreting that provision of the Code. That, being so, however profoundly might this Court differ, if at all, from those conclusions, that will not empower this Court to interfere with those conclusions in exercise of its revisional jurisdiction. The preliminary objection raised by the learned counsel for the plaintiff respondent is therefore allowed and this revision petition is rejected with Rs. 25/- as costs to the plaintiff respondent.