RAMA SHANKER TIWARI Vs. MAHADEO AND OTHERS

JUDGEMENT

(1.) THE question whether the decision of a Full Bench of this Court in Mst. Suraj Pali v. Ariya Pratinidhi Sabha, 1936 AWR 776 (FB) holding that no revision lies from an order refusing to allow an amendment of a pleading Under Order VI, Rule 17, Code of Civil Procedure, requires re -consideration in view of the recent decision of the Supreme Court in Major S.S. Khanna v. Brig. F.J. Dillon : AIR 1964 SC 497 arose in two civil revisions before a Single Judge of this Court. In the suit, out of which Civil Revision No. 1736 of 1964 arises, the Defendant had filed an application for amendment, seeking to add a plea in his written statement that the Munsif, before whom the suit was pending had no jurisdiction to entertain the suit. This application was rejected by the Munsif and a revision was filed against the order of rejection. At the hearing of the revision, an objection was taken that the revision was incompetent as the order of the Munsif did not amount to a "case decided" within the meaning of Section 115 of the Code of Civil Procedure. The Applicant in the revision contended that the decision in Mst. Suraj Pali's (supra) case was no longer good law in view of the wide meaning given to the words "case decided" by the Supreme Court in Khanna's (2 supra) case. In the suit, out of which Civil Revision No. 1739 of 1964 arises, an application was made by the Plaintiff for amendment of the plaint by the addition of certain new facts which had arisen after the filing of the plaint. The application was opposed by the Defendants on the ground that the amendments, if allowed, would ' change the nature of the suit. This amendment application was allowed by the Munsif and a revision was riled by the Defendants before this Court. The opposite -parties raised a preliminary objection that the revision was incompetent as the order of the Munsif did not amount to a "case decided" whereas the Applicants contended that, in view of the decision of the Supreme Court in Khanna's (supra) case, the order did amount to a "case decided". In both the cases, the learned Single Judge passed the following order:

(2.) THE question has to be decided on the true meaning of Section 115, Code of Civil Procedure which provides:

(3.) TO hold that an order Under Order VI, Rule 17, Code of Civil Procedure is not a "case decided" would result, in many cases, in denying relief to parties where it is most needed and in the perpetuation of gross injustice. The party aggrieved will have to wait till the suit is decided on merits after taking evidence and then raise the question in appeal. If its contention is correct, then the appellate court will set aside the order of the trial court on the amendment application and remand the case for a fresh trial. This will result in unnecessary delay and expense to both the parties. Even though an order allowing or refusing an amendment is a "case decked" this Court will not interfere unless the conditions laid down in Clauses (a), (b) and (c) of Section 115, Code of Civil Procedure are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied except by interference at that stage. Most of the other High Courts have also taken the view that an order Under Order VI, Rule 17, Code of Civil Procedure is a "case decided" - -see Sukumar Chatterjee v. Kiran Chandra Mitter : AIR 1964 Cal 439, Narayan Sonajii Sagne v. Sheshrao Vithoba : AIR 1948 Nag 258 (FB), Shah Shantilal Qhunilal v. Shah Shantilal Fulchand : AIR 1963 Guj 195, Damodara Sastry v. Nilgri Sanjiviah, AIR 1955 Mys. 141 and Pathikonda Gopala Rao v. Nagiri Pedda Kitamma, AIR 1956 AP 138.