Mohd Maqbul vs Kadir Munjgaroo and Others

Shahmiri, J.—This is an application in revision directed against an order of the Second Additional Munsiff, Srinagar by which he refused to

allow an amendment of the plaint in a suit for preemption under Order 6, Rule 17, CPC The revision originally came up before my learned brother

Kilam J. who, being of the opinion that the decision in this case involved an important point of law, referred it to Hon'ble Chief Justice for being

placed before a Division Bench.

In para (1) of the plaint it had been stated that Defendant 2, the vendor, had sold two properties to Defendant 1, the vendee: (i) half of the

house described in the paragraph and (ii) l/4th of the land measuring 195 sq. ft. and 8 1/2 sq. inches by a sale deed dated 19th Katik 2003. In

para (2) it was specified that the Plaintiff possessed a right of prior purchase in respect of the land sold by Defendant 2 to Defendant 1. A

reference to the sale deed of 19th Katik 2003 would show that the second property described in the plaint, namely, the land, really measured 354

sq. ft. and 8 sq. inches and not 195 sq. ft. and 8 1/2 sq. inches as given in the plaint. In the last paragraph of the plaint the Plaintiff prayed for a

decree for possession in respect of the whole property sold. In his application for amendment of the plaint the Plaintiff applicant averred that the

measurement of the land had been wrongly inserted in the plaint and there was also an error in the relief sought and that he would like to rectify

both these mistakes and amend the plaint accordingly. Counsel for the applicant stated before the lower Court that the Plaintiff wanted to put in the

correct measurement of the land, namely, 354 Sq. ft. and 8 sq. inches in the plaint. The trial Court, however, rejected the application on the ground

that the amendment if allowed, would alter the nature of the suit.

The main question involved in this revision application is if it is competent. The decision of this question depends upon the interpretation which

may be placed on the words 'case decided' as used in Section 115, CPC Obviously, there is a conflict of opinion between the different High

Courts and even between the different branches of the same High Court in India. The view taken by some High Courts, including the earlier view

of the Lahore High Court as expressed by the late Sir Shadi Lal C.J. in-' Lal Chand Mangal Sain v. Behari Lal Mehar Chand', AIR 1924 Lah 425

was that the word 'case' when used with reference to a suit must be taken to mean the 'whole suit' and interlocutory orders passed during the

pendency of the suit will not be revisable until the final decision of the suit. This narrower view, however, did not find favour with a number of

Indian High Courts and was dissented from by the Full Bench of the Lahore High Court consisting of seven Judges as reported in-'Gurdevi Bibi v.

Mohammad Bakhsh', AIR 1943 Lah 65 (B). It was held therein that the word 'case' as used in Section 115, CPC was wide enough to include

decision of any matter in controversy affecting the rights of the parties to a suit. It was, however, stressed that this wide interpretation of the

exercise of the revisional powers u/s 115, CPC was subject to two-fold restrictions. In the first place there were the various restrictions expressly

mentioned in the section itself. In the second place there were the other implied restrictions which were to be deduced from the very nature of the

extraordinary jurisdiction u/s 115, CPC In this view

the High Court will not be justified in interfering in revision unless (i) the decision relates to a substantial question of controversy between the parties

which is of such a nature that it will result in a 'grave wrong' and 'defeat of the law' and unless (ii) such 'grave wrong' or 'defeat of law' cannot be

prevented or remedied except by interference in revision-either because there is no other remedy or the remedy is too remote or cumbersome to

be of any practical utility in the particular circumstances of the case.

In ' Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, (C), while it was admitted by Sir Shah Mohammad Sulaiman C.J. that the word 'case' was wider

than the word 'suit' and therefore a branch of the suit could fall within it, it was observed that the word 'case' could not be given such a wide

meaning as to cover every interlocutory order passed by a court during the trial of a suit. In view of the restrictions placed on the exercise of the

revisional jurisdiction by the High Court in the clauses sub-joined to Section 115, Civil Procedure Code, no exception can be taken to this

proposition. Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, (C), however, laid down that an order refusing to allow an amendment of the plaint was not

revisable and overruled an earlier Single Bench ruling of the same High Court reported in-' Rurmal Ram Nath Vs. Kapil Man Misir and Others in

which it had been held that refusal to allow an amendment of the plaint was a case decided within the meaning of Section 115, CPC A perusal of

the judgment reported in Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, would show that this decision of the Full Bench was mainly influenced by the

consideration that it would be anomalous to hold that an order refusing to allow an amendment of the plaint was a case decided while an order

allowing such an amendment would not be revisable.

The point, however, has arisen in other High Courts where the view taken in the Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, (C) case has not been

followed. In- AIR 1948 258 (Nagpur) (E) it was held that an order amending or refusing to amend plaint or other pleading was open to revision. It

may be stated here that an order refusing to allow amendment of plaint is not appealable in itself though the point can be taken up in appeal when it

is preferred from the final decree in the case. From the observations in AIR 1943 Lah 65 referred to above, it may be arguable that unless an

irreparable wrong is done to a party by an interlocutory order which is not appealable in itself, a revision from that order may not be entertained by

the High Court if an appeal can be preferred from the final decree. As quoted above, the rule laid down in AIR 1943 Lah 65 was that the High

Court will not be justified in interfering in revision unless the grave wrong done to the party by the interlocutory order against which it felt aggrieved

cannot be prevented or remedied except by interference in revision. This might mean that if an appeal lay from the final decree in the case an

interlocutory order, though it may do a grave wrong to a party, would not be revisable. As a matter of fact, however, the rule enunciated in the

above case is not so narrow. After the observation referred to above, as already indicated, it contains the following words:

either because there is no other remedy or the remedy is 'too remote or cumbersome to be of any practical utility in the particular circumstances of

the case'.

While some doubt may be felt as regards the exact meaning of these words AIR 1948 258 (Nagpur) (E), to which reference has been made,

makes it quite clear that an interlocutory order does not cease to be revisable merely because an appeal can ultimately be filed from the final

decree in the case. The following quotation from this ruling may be aptly quoted here :

It is thus clear that the jurisdiction to entertain a revision does not depend on the order sought to be revised being interlocutory or final. Nor does it

depend upon the particular matter disposed of by that order. The High Court has jurisdiction to entertain revision against orders deciding a

particular matter provided the three conditions mentioned in the first part of Section 115 are satisfied. It may be noted that according to one of

those conditions the order sought to be revised must not by itself be appealable to the High Court. It is immaterial that an appeal would lie to the

High Court from the decree which may ultimately be passed in the suit, in this connection the following observations of the Madras High Court in-

'Moideen Saheb v. D. M. Abdul Gaffoor', AIR 1942 Mad 247 (F) are worth noting:

The fact that a finding on a question of jurisdiction could be challenged in an appeal from the decree passed in the suit does not preclude the High

Court from interfering in re-vision on a question of jurisdiction when it arises at a preliminary stage in a suit'.

It is true that under Order 6, Rule 17, CPC the trial Court has the discretion to allow or refuse to amend a plaint but this discretion has got to be

exercised according to judicial principles and the High Court may exercise its revisional jurisdiction in a case in which it is satisfied that the

subordinate Court has not judicially exercised its discretion. According to Order 8, Rule 17, CPC all such amendments 'shall be made' as may be

necessary for the purpose of determining the real question in controversy between the parties. In the particular case before us it is quite obvious

that the applicant wanted to make certain amendments in the plaint for no other purpose than to bring out the real question in issue between the

parties. He wanted to rectify a simple arithmetical mistake in the plaint, namely the wrong measurement given of the land sought to be preempted.

Further he wanted to restrict the relief to this land alone. The plaint, no doubt, had been clumsily drawn up. From para (2) of the plaint it would

appear that the applicant's allegation was that he had a right of prior purchase only in respect of the land but in the end he had claimed relief in

respect of both the properties described in para (1). In these circumstances it. was obvious that the trial Court was entirely wrong in rejecting the

application for amendment of the plaint. The learned Counsel for the opposite party does not deny that in an appeal from the final decree the

applicant would be able to have this wrong righted. Thus to compel the applicant to wait till the whole suit is finally decided would be to

unnecessarily prolong the litigation and thus to cause a failure of justice. The finding of the trial Court that the applicant wanted to alter the nature of

his suit is palpably wrong and there is no doubt that the subordinate Court has exercised its discretion arbitrarily. According to the principles

enunciated in the Full Bench case of Nagpur High Court, referred to above, the order is revisable in terms of Section 115, CPC as it is in force in

other parts of India.- S.V. Nallaperumal Pillai Vs. R. Ponnaya Mudaliar and Others, (G) and-'Po Nyein Maung v. Maung Tha Saing', AIR 1939

Rang 92 support the view expressed in this Full Bench ruling. In our Section 115, CPC there is an additional Clause (d), namely,

(d) to have caused failure of justice.

This additional clause, it has been held by the Hon'ble Board of Judicial Advisers in-'Raja Pandit v. Samad Gujri' 3 J&k LR 169 , gives wider

powers of revision to this High Court. After careful consideration of the authorities cited above and the relevant provision of law as in force in the

State I feel no doubt whatsoever that this is a fit case in which the High Court can exercise its extraordinary jurisdiction.

I would, therefore, accept this revision application and leave the parties to bear their own costs so far as this application is concerned.

Wazir, C.J.

I agree.