SUDHARSH KUMAR AHUJA Vs. R P JOSHI

JUDGEMENT

(1.) This revision petition is directed against the order of the trial court dt. July 24, 1984, whereby the application for permission to amend the plaint under O.6 R.17, read with O.1 R.10 and O.27 R.5-A, Civil P. C. (hereinafter called the Code), was not allowed, and the plaint was rejected vide impugned order as the plaintiff had not impleaded the State Government as a party to the suit filed against a public officer, as contemplated under O.27 R.5-A of the Code.

(2.) A preliminary objection has been raised on behalf of the defendants-respondents that since the plaint was also rejected, it amounted to a decree and, thus, the impugned order was appealable and no revision was maintainable against the same in view of sub-sec.(2) to S.115 of the Code, which provides that the High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any other Court subordinate thereto. The learned counsel for the petitioner submitted that if the order rejecting the application for amendment of the plaint is set aside, then automatically, the order rejecting the plaint falls, and as such, the revision petition against the impugned order was competent According to the learned counsel, if the trial court had not passed a composite order and would have passed a separate order declining the application for amendment of the plaint, then, obviously, the revision against the said order was maintainable. Simply because the trial court has passed a composite order rejecting the application for amendment of the plaint and at the same time rejecting the plaint under O.7 R.11 of the Code, the plaintiff was not debarred from challenging the order declining his prayer for amendment of the plaint, in revision. In support of the contention, the learned counsel relied upon Kuntaraswamiah v. Krishna Reddi, AIR 1947 Mad 84; Damodar Prasad v. Ram Charan, AIR 1957 Pat 143; Jai Lal v. Prithvi Nath, AIR 1954 J. and K. 54 and Mathura Prasad v. Parmanand, AIR 1960 Madh. Pra. 161. On the other hand, the learned counsel for the respondents contended that where a plaint is rejected under Cl.(d) of R.11 of O.7 of the Code, i.e., where the suit appears from the statement in the plaint to be barred by any law, then the order is appealable as a decree and no revision against such an order is maintainable. It was further contended by the learned counsel that even if a separate order would have been passed by the trial court dismissing the application for amendment of the plaint, even then, no revision was maintainable against such an order if meanwhile the plaint was rejected under O.7 R.11(d) of the Code. In that situation, according to the learned counsel, the only remedy available to the plaintiff was to file an appeal against the order rejecting plaint and in that appeal he could also challenge the order rejecting his application for amendment of the plaint. In support of the contention, the learned counsel relied upon the Full Bench judgment of the Kerala High Court in Souri Varghese v. P. C. Assankutty, AIR 1972 Ker 56; the Full Bench judgment of the Madras High Court in Satyanarayanacharyulu v. Ramalingam, AIR 1952 Mad 86; Wajid Ali v. Jiga Bibi, AIR 1968 Ori 163; Kamalamma v. Mariyanna, AIR 1960 Mys 140 and Jagat Singh v. Joginder Paul, ILR (1973) I Punj and Har 400.

(3.) I have heard the learned counsel for the parties and have also gone through the case law cited at the bar.