MUKHTAR AHMAD Vs. SIRAJUL HAQ

JUDGEMENT

(1.) HEARD counsel for the parties.

(2.) PETITIONER initiated original suit proceedings No. 302 of 1987 seeking declaration of his title and share over House No. 23/188 as well as for delivery of possession. Respondent No. 1 Sri Sirajul Haq initiated independent original suit proceedings, being Original Suit No. 179 of 1978 claiming title over the entire property with possession thereto. In the suit filed by the petitioner -plaintiff. Sri Sirajul Haq filed his written statement. The petitioner, however, filed an application for amendment of the plaint allegation under Order VI, Rule 6 of the Civil Procedure Code. The application was numbered as Paper No. 77Ka. Sri Sirajul Haq, who was defendant in the said suit, filed his objections. The trial court by means of the order dated 21.8.2004 has rejected the application filed by the petitioner. Feeling aggrieved by the said order of the First Additional Civil Judge (Senior Division), petitioner preferred Civil Revision No. 239 of 2004 under Section 115 of the Civil Procedure Code. The revision so filed by the petitioner has been dismissed by the District Judge only on the ground that the Revision is directed against an order rejecting the amendment application and Revision against such an order is not maintainable in view of the Judgment of the Hon'ble High Court of Judicature at Allahabad, in Brij Bhushan v. District Judge. Saharanpur and Ors. 2004 (1) AWC 502; which in turn is based on the Judgment of the Hon'ble Supreme Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur v. Swaraj Developers and Ors. 2003 (3) AWC 2198 (SC). It is against this order of District Judge the present writ petition has been filed.

(3.) FROM the aforesaid provision, it cannot be disputed that a revision would be maintainable against an order, deciding an issue in an original suit or other proceedings, if the same is passed by a subordinate court, as provided under Sub -section (1) of Section 115 of the Civil Procedure Code.