BHASKARAN NAIR Vs. P CHANDRAMATHIYAMMA

JUDGEMENT

(1.) The question for consideration in this Writ Petition filed under Article 227 of the Constitution of India is as to whether an order allowing or refusing to allow amendment of pleadings, if not appealable or revisable, is amenable to correction under Articles 226 and 227 of the Constitution of India.

(2.) It is now well-settled that an order granting or refusing to grant amendment of pleadings is not revisable under Section 115 of the Code of Civil Procedure, particularly after its amendment in the year 2002. Instances are numerous of such orders being challenged before this Court by means of Writ Petitions filed under Article 226 and/or Article 227 of the Constitution of India. It has, indeed, been judicially noticed by the Supreme Court of India that after the amendment of Section 115 of the Code of Civil Procedure, all the High Courts in India are flooded with petitions under Article 227 of the Constitution of India challenging all sorts of interlocutory orders. Vide Rajeshwari v. Puran Indoria . By the various judicial pronouncements it is now, by and large, settled that there are certain species of amendments which ought to be allowed and certain others which ought not to be allowed. Most of the requests for amendment of the pleadings are sought before the trial courts either before the commencement of trial or during or after the trial. Refusal to allow a party to amend his pleadings, in a case where such amendment ought to be granted, may result in injustice. Similarly, allowing a party to amend his pleadings, in a case where it ought not to be allowed, may also work injustice. In cases where such injustice is done at the trial stage, it may be a poor solace to the aggrieved party to be told that the order constituting the injustice done to him is not revisable under Section 115 C.P.C. and cannot also be corrected in a petition under Article 227 of the Constitution of India as well and that his remedy is to challenge the order in an appeal to be preferred against an adverse decree which might be passed by the trial court against him in due course. Even in such cases if the appellate court were to hold, after a long lapse of time, that the amendment of the pleadings sought by the party should have been granted, the only alternative available to such appellate court is to remand the case to the trial court for a fresh disposal which may or may not involve a de novo trial.

(3.) The sweep and amplitude of the supervisory and visitorial jurisdiction of the High Court under Article 227 of the Constitution of India were examined at length by the Supreme Court in Surya Dev Rai v. Ram Chander Rai . Some of the pithy observations by the apex court in the above decision can be summarised as follows: