Hari Ram vs Niranjan Lal and others

P.C. Pandit, J.—This order will dispose of Civil Rivisions Nos. 417 of 1969 and 680 of 1968. The point involved in both these petitions is identical, namely, whether a revision is competent against the order dismissing an application for the amendment of the written statement under Order 6, rule 17, Code of Civil Procedure. I will refer to the facts of the former Civil revision.

During the pendency of a suit, when the case was at the evidence stage, Hari Ram, defendant, made an application under Order 6, rule 17, Code of Civil Procedure, for the amendment of his written statement That application was opposed by Niranjan Lal and his brother Banwari Lal, who were the plaintiffs in the suit. The trial Judge dismissed that application and against his order Hari Ram, defendant, filed a revision petition in this Court u/s 115 of the Code of Civil Procedure. When this case come up for hearing before me on 22nd October, 1969, I was inclined to allow the proposed amendment but a preliminary objection was raised by the learned counsel for the respondents that no revision petition was competent against the order of the trial Judge refusing an application for amendment. In support of his submission learned counsel referred to four unte-ported decisions of Mehar Singh C.J. Viz. Balkishan Dass v. Om Parkash and others. C.R. No. 1091 of 1966. Civil Revision No. 1091, of 1966 decided on 23rd October, 1968; Baldev Singh and others. v. Kapoori, Lal and others. C.R. No. 308 of 1969. Civil Revision No. 308 of 1969 decided on 28th August, 1969; Ajit Singh v. Uttam Singh and others. C.R. No. 677 of 1968, Civil Revision No. 677 of 1968 decided on 1st September, 1969 and Krishan Lal v. Shrimati Tara Wanti C.R. No. 842 of 1968. Civil Revision No. 842 of 1968, decided on 1st September, 1969. All of them were based on the Supreme Court ruling in Radhey Shyam and others. v. Ram Autar and others. C.A. No. 506 of 1965, Civil Appeal No. 506 of 1965, decided on 7th February, 1967.

Counsel for the petitioner, on the other hand, referred to two unreported decisions one by Harbans Singh Acting C.J., in Khachera and others. v. Khimman C.R. No. 398 of 1969, Civil Revision No. 398 of 1969, decided on 7th August, 1969, and the other by R.S. Sarkaria, J., now reported as M/s. The Punjab Rajasthan Timber Trading Company v. The Wearwell Cycle Company (India) Ltd. 1970 Cur. L.J. 322, Both the learned Judges entertained revision petition in similar circumstances and allowed application for amendment learned counsel also submitted before me that the Supreme Court decision in Radhey Sham''s case 5 did not lay down that any order whether accepting or refusing an application far amendment of the pleadings under Order 6, Rule 17, Code of Civil Procedure, was not revisable by the High Court u/s 115 of the Code of Civil Procedure.

Since there was obvious conflict between the decision of this Court, I referred the said revision petition to a larger Bench. That is how the matter has been placed before us.

It may be stated that the other Civil Revision No. 680 of 1968 was ordered by Harbans Singh C.J, to be heard along with Civil Revision No. 417 of 1969.

The main point to be determined is whether the Supreme Court in Ridley Sham''s case5 has held that no revision u/s 115, Code of Civil Procedure, lies against an order passed by the Court below either accepting or refusing amendment of the pleadings under Order 6, Rule 17, Code of Civil Procedure, If the said authority has ruled that no such revision petition was competent, as observed by Mehar Singh C.J., in the above mentioned cases decided by him, then the conflict between the two sets of authorities is automatically re-solved.

The Supreme Court decision was considered by a Full Bench of five Judges of the Allahabad High Court in Rama Shanker Ti''wari v. Mahadeo and pthers. 1958 All. L.J. 109. In that authority, while referring to the said ruling it was observed:

Whether an order passed under Order VI, Rule 17 of the Code of Civil Procedure, either allowing an amendment or refusing to allow an amendment, is a "case decided" within the meaning of Section 115 of the Code ? learned counsel for the opposite parties contended that the matter is concluded by a decision of the Supreme Court in Radhey Shyam v. Ram Autar 5. Civil Appeal No. 506 of 1965 decided on February 7, 1967. This case arose out of ? suit for partition filed in the Court of the Civil Judge Moradabad After the preliminary decree had been passed, the plaintiffs filed an application under Sections 151, 152 and 153 of the CPC for an amendment of the plaint as well as of the preliminary decree with respect to the description of the property which was the subject-matter of the partition suit. This application was rejected by the Civil Judge. Against his order, a revision was filed in this Court. A Single Judge of this Court allowed the revision, set aside the order of the Civil Judge and allowed the application for amendment. Against the order of the learned Single Judge, an appeal was taken to the Supreme Court by special leave. Two points were raised before the Supreme Court, namely, (i) that this Court had no jurisdiction u/s 115, Code of Civil Procedure, to entertain the vision and to interfere With the order of the trial court as co revision was competent against the order of the trial Court; and (ii) that this Court had erroneously treated the revision as an appeal and allowed the amendment rejected by the trial Court. These objections were disposed of by the Supreme Court thus:

These grounds have certainly considerable force and we think that the ends of justice will be met by allowing the appeal and setting aside the last order of the High Court as also that of the above, it is appropriate that the question which is raised in this appeal should be dealt with and decided in the appeal pending in the High Court of Allahabad against the decree of the trial Court.

Though the Supreme Court observed that the grounds raised had considerable force, it did not say any where that the order of the Civil Judge did not amount to a "case decided". It is to be noticed that the order of this Court as well as that of the Civil Judge was set aside to meet the ends of justice. The judgment of Supreme Court cannot be read allowing or disallowing an amendment of pleadings under Order VI, Rule 17, Code of Civil Procedure, did not amount to a "case decided" It accordingly does not help the opposite parties and the question remains open for decision by this Court.

We have gone through the unreported judgment of the Supreme Court in Radhey Shyam''s case5, and respectfully agree with the Full Bench decision of the Allahabad High Court when they observe that that authority does not lay down that an order allowing or disallowing an amendment of the pleadings under Order 6, Rule 17, Code of Civil Procedure, was not revisable by the High Court u/s 115, Code of Civil Procedure.

We, therefore, hold that the preliminary objection raised by the counsel for the respondents has no merit and overrule it.

The cases will now go back to the learned Single Judges for decision on merits. There will, however, be no order as to costs.

S.S. Sandhawalia, J.

I agree.