& Ors Vs. Dharam Dev & Ors  Insc 10 (9 January 2002)
Thomas & S.N. Phukan Phukan, J.
appeal by special leave is directed against the order of the High Court of
Punjab & Haryana at Chandigarh. Shortly put, the facts are as follows:
- The suit land originally belonged to Durga Dass who mortgaged the same to
Sunder Dass and Udhey Ram. The appellants and respondent Nos.2 to 5 are the
legal heirs of Sunder Dass and Udhey Ram. When it came to the notice of the
appellants that on the death of Durga Dass, defendant/respondent No.1, Dharam
Dev got his name mutated in the revenue record, the present suit was filed for
declaration of joint ownership of the land of the appellants and respondent
Nos.2 to 5 on the ground that neither Durga Dass nor his legal heirs could get
the suit land redeemed within a statutory period and also for permanent
injunction restraining respondent No.1 from alienating the suit land. In the
said suit an application under Order 6 Rule 17 CPC for amendment of the plaint
was filed. It was pleaded that from a subsequent civil suit filed by the
respondent No.1 against the appellants, it came to the knowledge of the
appellants that the suit land was sold by Durga Dass to Sunder Dass and Udhey
Ram adjusting the mortgage amount and later on a pre-emption suit filed by Amar
Nath, son of Kamal Krishna and another, which was decided in the year 1943 and
it was decreed that the plaintiffs in that suit on payment of certain amount,
within the time specified by the Court, to Sunder Dass and Udhey Ram, the suit
would stand decreed and in case of non payment, suit would stand dismissed. The
present respondent No.1 is the son of Amar Nath. It was stated in the said
application that as the amount directed by the court was not paid, there was no
decree for pre-emption and the suit stood dismissed and accordingly, prayer was
made for amendment of the plaint. The trial court allowed the application which
was set aside by the High Court by the impugned order on the ground that the
appellants want to attack a decree passed in 1943 in the present suit which was
filed in the year 1999 and, therefore, it is barred by limitation.
short question for determination is whether the impugned order was revisable by
the High Court by exercising powers under Section 115 CPC. The said section
runs as follows: -
Revision (1) The High Court may call for the record of any case which has been
decided by any Court subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears
have exercised a jurisdiction not vested in it by law, or
have failed to exercise a jurisdiction so vested, or
have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court may make such order in the case as it thinks fit:
that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other
proceeding, except where
order, if it had been made in favour of the party applying for revision, would
have finally disposed of the suit or other proceeding, or
order, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it was made.
The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
Explanation. In this section, the expression
"any case which has been decided" includes any order made, or any
order deciding an issue, in the course of a suit or other proceeding." The
proviso to sub-sections (1) and (2) with explanation was added by the amending
Act of 1976. By this amendment the power of the High Court was curtailed; the
intention of the legislature being that High Court should not interfere with
each and every interlocutory order passed by the trial court so that the trial
of a suit could proceed speedily and that only the interlocutory order coming
under clause (a) or (b) of the proviso would be entertained by the High Court.
Major S.S. Khanna versus Brig. F.J. Dillon [AIR 1964 SC 497 = 1964 (4) SCR 409]
this court considered the expression "any case which has been decided' in
sub-section (1) of Section 115 CPC and held that the expression 'case' is a
word of comprehensive import and includes civil proceedings other than suits
and is not restricted by anything contained in the said section to the entirety
of the proceeding in a civil court and to interpret the expression 'case' as an
entire proceeding only and not a part of the proceeding would impose an
unwarranted restriction on the exercise of powers of superintendence by the
High Court. This view of the High Court has now been legislatively adopted by the
parliament by introducing the explanation to sub-section (1) of Section 115 CPC
and, therefore, an interlocutory order would be revisable. There is no doubt
that present order being an interlocutory order is revisable under Section 115,
but for exercising powers under this section by the High Court, the order must
satisfy one of the conditions mentioned in clause (a) and (b) of the proviso.
proviso to sub-section (1) of Section 115 puts a restriction on the powers of
the High Court inasmuch as the High Court shall not, under this section vary or
reverse any order made or any order deciding a issue, in course of a suit or
other proceedings except where (I) the order made would have finally dispose of
the suit or other proceedings or, (ii) the said order would occasion a failure
of justice or cause irreparable injury to the party against whom it is made.
Under clause (a), the High Court would be justified in interfering with an
order of a subordinate court if the said order finally disposes of the suit or
other proceeding. By way of illustration we may say that if a trial court holds
by an interlocutory order that it has no jurisdiction to proceed the case or
that suit is barred by limitation, it would amount to finally deciding the case
and such order would be revisable. The order in question by which the amendment
was allowed could not be said to have finally disposed of the case and,
therefore, it would not come under clause (a).
the question is whether the order in question has caused failure of justice or
irreparable injury to respondent No.1. It is almost inconceivable how mere
amendments of pleadings could possibly cause failure of justice or irreparable
injury to any party.
the converse is possible i.e. refusal to permit the amendment sought for could
in certain situations result in miscarriage of justice. After all amendments of
the pleadings would not amount to decisions on the issue involved. They only
would serve advance notice to the other side as to the plea, which a party
might take up.
we cannot envisage a situation where amendment of pleadings, whatever be the
nature of such amendment, would even remotely cause failure of justice or
irreparable injury to any party.
the facts extracted above it would show that appellants only wanted to bring to
the notice of the court the subsequent facts and after amendment of the plaint,
respondent No.1 would get opportunity to file written statement and he would be
able to raise all his defence. Ultimately if the suit is decided against the
respondent No.1, he would have a chance to take up these points before the
appellate court. It cannot be conceived of a situation that the proposed
amendment if allowed would cause irreparable injury or failure of justice as
the remedy of the respondent No.1, as stated above, is by way of an appeal. We
are, therefore, of the view that the order allowing the amendment would not
come under clause (b).
we hold that the High Court erred in law in interfering with the order of the
trial court allowing the prayer for amendment of the plaint.
result, we find merit in the present appeal and accordingly it is allowed by
setting aside the impugned order and restoring the order of the trial court.
Considering the facts and the circumstances of the case, we allow the parties
to bear their own costs.