MUKHTAR AHMAD Vs. SIRAJUL HAQ

JUDGEMENT

(1.) ARUN Tandon, J. 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 Sirjul 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. 77-Ka. 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, reported in 2004 (1) JCLR 93 (All); 2004 (1) AWC 502; Brij Bhushan v. District Judge, Saharanpur and Ors. , which in turn is based on the judgment of the Hon'ble Supreme Court in the case of Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers and Ors. ; reported in 2003 (2) JCLR 756 (SC); 2003 (3) AWC 2198 (SC ). It is against this order of District Judge the present writ petition has been filed.

(3.) IN view of the aforesaid, the issue required to be considered by the Revisional Court, while exercising jurisdiction under Section 115 of the Civil Procedure Code, is as to whether issue decided by the subordinate Court amounts to case decided in the facts of the case.