Sucha Singh vs Lakhmir Singh

Pritpal Singh, J.

An order of the trial Court allowing the plaintiffs to amend the plaint has been assailed by the defendants in this revision petition.

One Bhagwana, predecessorininterest of the plaintiffs, had created two mortgages in favour of Santu and Chhajju, predecessorsininterest, of the defendants, one on May 25, 1923 and the other on June 30, 1927. The plaintiffs filed a suit for redemption of the mortgages against the defendants. During the pendency of this suit the plaintiffs came to know that Bhagwana had himself redeemed these two mortgages on September 18, 1946 and on the same day he had again mortgaged the land in dispute in favour of the same mortgagees for Rs. 2,000/. The plaintiffs thereupon applied for amendment of the plaint in order to bring these facts on record and to get the relief of redemption of mortgage created by Bhagwana on September 18, 1946.

The trial Court, holding that the parties are the same and the suit land is also the same, allowed the plaintiffs to amend the plaint.

It is contended by the petitioners'' counsel that the relief of redemption regarding the fresh mortgage created by Bhagwana on September 18, 1946 could not be substituted in place of the relief of redemption of the earlier two mortgages. It is true that normally in place of one transaction another is not allowed to be substituted in the same suit. However, there is also no legal bar for such substitution in appropriate cases. The trial Court indeed had the jurisdiction to allow the proposed amendment. Even if the amendment was wrongly allowed it cannot be interfered with by this Court in exercise of its revisional jurisdiction. The Supreme Court held in Major S.S. Khanna v. Brig, F.J. Dillon, AIR 1964 Supreme Court 497, that the power given by section 115 of the Code of Civil Procedure is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction. It does not comprehend the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari inasmuch as it arises only in a case of jurisdiction and not in a case of error. It was observed in this judgment that it has been ruled by the Judicial Committee and also by the Supreme Court that the section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision cannot be corrected for it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly. This view was reiterated by this Court in State of Haryana and another v. M/s. O.P. Singhal & Co., Hissar, 1984 R.R.R. 146 : AIR 1984 (P&H) 358, and it was held that even an erroneous decision on question of law cannot be interfered with in revisional jurisdiction.

Contention of the learned petitioners'' counsel is that the trial Court had exercised its jurisdiction illegally and with material irregularly in allowing the plaintiffs to substitute the later mortgage in place of the earlier two mortgages. In support of this contention I was referred to Partap and others v. Ram Sewak and others, 96 Indian Cases (1926) 304. In that case in the second appeal before the High Court such substitution of mortgage was allowed in a case for redemption. The High Court in Letters Patent Appeal set aside the amendment on the ground that the defendants had no opportunity to meet the new case and that the plaintiff should not have been allowed to set up a new case for which there was no adequate investigation in the Courts below. This judgment is wholly irrelevant to the circumstances of the present case. It does not lay down that substitution can never be allowed.

Even if an order is passed by the lower court in exercise of its jurisdiction illegally or with material irregularity, by virtue of the proviso to Section 115 of the Code of Civil Procedure, the High Court will not vary or reverse the same except where it would occasion a failure of justice or cause irreparable injury to the other party. In the present case no such failure of justice or irreparable injury has been caused to the petitioners. The previous two mortgages created by Bhagwana were redeemed by him without the knowledge of the plaintiffs and he had on the same day created another mortgage on the same land in favour of the same mortgagees. The plaintiffs, being unaware of the redemption of the earlier mortgages, had sought redemption of the same in the suit filed by them. The moment they came to know of the redemption and the creation of a new mortgage on the same land, they applied for amendment praying substitution of the new existing mortgage in place of the earlier redeemed mortgages. By allowing this amendment, even if this order is considered erroneous, no failure of justice has been occasioned nor any irreparable injury has been caused to the defendants.

Before parting with the judgment, I must make it clear that the defendants will not be debarred from taking objection regarding limitation visa vis the plaintiff''s right of redemption of the mortgage dated September 18, 1946.

Taking this view, the present revision is dismissed. No order as to costs.