KIRORI LAL Vs. AHMED HUSSAIN

JUDGEMENT

(1.) This second appeal is directed against the order of the District Judge, Gurgaon, dated April 23, 1984, whereby the order of the trial Court rejecting the plaint was set aside, amendment of the plaint was allowed and the case was remanded to the trial Court for fresh decision.

(2.) Ahmad Hussain filed the suit on June 1, 1981, for possession of the suit land by way of pre emption representing himself to be a minor through his mother Mst. Manbi. During the pendency of the suit, on May 26, 1982, the plaintiff moved an application for allowing the amendment of the plaint on the allegations that though he was a minor at the time of the filing of the suit, yet by then, he had attained majority and, therefore, he be allowed to proceed with the suit as such independently. That application was contested on behalf of the vendee- defendant on the ground that the plaintiff was not a minor at the time of the filing of the suit; rather he was a major then and that the suit was wrongly filed by him as a minor through his mother. In view of these pleadings, the trial Court Shri B. K. Aggarwal, Subordinate Judy First Class), framed the issue as to whether the plaintiff was a minor at the time of the institution of the suit. Vide its detailed order dated March 22, 1983, it came to the conclusion that the plaintiff was not a minor at the time of the institution of the suit, as alleged by him. In view of this finding, the application for amendment of the plaint was dismissed. Civil Revision Petition No. 1089 of 1983 (Ahmad Hussain v. Asar Khan) was filed in this court on behalf of the plaintiff against the said order of the trial Court dated March 22, 1983. The said revision petition was dismissed at the stage of the motion heating vide order dated July 29, 1983, as it was stated by the counsel for the petitioner that the same he dismissed in view of the dismissal of Civil Revision Petition No 1256 of 1982, vide this Court order dated May 31, 1983. Subsequently, the trial Court vide order dated September 28, 1983, rejected the plaint with the observations that the plaintiff was not a minor at the time of the institution of the suit and accordingly he was not competent to file the same. It may also be stated that against the order of this Court dated July 29, 1983, dismissing the revision petition (Civil Revision Petition No. 1089 of 1983) at the elation hearing, the plaintiff went to the Supreme Court in Special Leave Petition which was dismissed as withdrawn on February 3, 1984. Dissatisfied with the order dated September 28, 1983, rejecting the plaint, the plaintiff filed an appeal in the Court of the District Judge, Gurgaon. In that appeal, the order of the trial Court dated March 22, 1983, rejecting the application for amendment of the plaint was also challenged. However, the learned District Judge allowed the appeal, set aside the order of the trial Court as well as the Order dated March 22, 1983, dismissing the application for amendment of the plaint and after allowing the amendment of the plaint, remanded the case to the trial Court for fresh decision. Dissatisfied with the same, the defendant has filed this second appeal in this Court.

(3.) The learned counsel for the appellant vehemently contended that once the order of the trial Court dated March 22, 1983, was affirmed by this Court in Civil Revision Petition No. 1089 of 1983, the lower appellate Court had no jurisdiction to set aside the said order in appeal against the order of the trial Court rejecting the plaint. In support of the contention, the learned counsel relied upon Gian Singh v. Nathu Singh, 1977 PunLJ 205 On the other hand, the learned counsel for the plaintiff-respondent contended that even if it be assumed that the said order could not be set aside in appeal, even then, the lower appellate Court was competent to allow the amendment of the plaint, in appeal, and, therefore, no fault could be found with the same. According to the learned counsel even if the plaintiff was found to be a major at the time of the filing of the suit, the plaint could not be rejected as such under Order 7 rule 11, Code of Civil Procedure, (hereinafter called the Code), and the only course open to the Court was to allow necessary amendment even after holding that the plaintiff was a major at that time, but inadvertently, without any mala fide intention, he was shown to be a minor. In support of the contention, the learned counsel relied upon Ramavtar v. Balbirs, 1975 RLR 491