MOHD MAQBUL (MASTER) Vs. KADIR MANJGOROO

JUDGEMENT

(1.) THIS is an application in revision directed against an order of the Second Additional Munsiff, Srinagar by which he refused to allow an amendment of the plaint in a suit for pre -emption under O. 6, R. 17, Civil P. C. The revision originally came up before my learned brother Kilam J. who, being of the opinion that the decision in this case involved an important point of law, referred it to Honble Chief Justice for being placed before a Division .

(2.) IN para 1 of the plaint it had been stated that defendant 2, the vendor, had sold two properties to defendant 1, the vendee: i half of the house described in the paragraph and ii l/4th of the land measuring 195 sq.ft. and 8Â 1/2 sq.. inches by a sale deed dated 19tn Katik 2003. In para 2 it was specified that the plaintiff possessed a right of prior purchase in respect of the land sold by defendant 2 to defendant 1. A reference to the sale deed of 19th Katik 2003 would show that the second property described in the plaint, namely, the land, really measured 354 sq. ft. and 8 Â 1/2 inches and not 195 sq. ft. and 8 -J - sq. inches as given in the plaint. In the last paragraph of the plaint the plaintiff prayed for a decree for possession in respect of the whole property sold. In his application for amendment of the plaint the plaintiff applicant averred that the measurement of the land had been wrongly inserted in the plaint and there was also an error in the relief sought and that he would like to rectify both these mistakes and amend the plaint accordingly. Counsel for the applicant stated before the lower Court that the plaintiff wanted to put in the correct measurement of the land, namely, 354 Sq. ft. and 8 sq. inches in the plaint. The trial Court, however, rejected the application on the ground that the amendment if allowed, would alter the nature of the suit.

(3.) THE main question involved in this revision application is if it is competent. The decision of this question depends upon the interpretation which may be placed on the words case decided as used in S. 115, Civil P. C. Obviously, there is a conflict of opinion between the different High Courts and even between the different branches of the same High Court in India. The view taken by some High Courts, including the earlier view of the Lahore High Court as expressed by the late Sir Shadi Lal C. J. in - Lal Chand Mangal Sain v. Behari Lal Mehar Chand, AIR 1924 Lah 425 FB A was that the word case when used with reference to a suit must be taken to mean the whole suit and interlocutory orders passed during the pendency of the suit will not be revisable until the final decision of the Suit. This narrower view, however, did not find favour with a number of Indian High Courts and was dissented from by the Full Bench of the Lahore High Court consisting of seven Judges as reported in - Gurdevi Bibi v. Mohamrnad Bakhsh AIR 1943 Lah 65 B. It was held therein that the word case as used in S. 115, Civil P. C. was wide enough to include decision of any matter in controversy affecting the rights of the parties to a suit. It was, however, stressed that this wide interpretation of the exercise of the revisional powers under S. 115, Civil P. C. was subject to two -fold restrictions. In the first place there were the various restrictions expressly mentioned in the section itself. In the second place there were the other implied restrictions which were to be deduced from the very nature of the extraordinary under S. 115, C. P. C. In this view the High Court will not be justified in interfering in revision unless i the decision relates to a substantial question of controversy between the parties which is of such a nature that it will result in a grave wrong and Ëœdefeat of the law and unless ii such Ëœgrave wrong or defeat of law cannot be prevented or remedied except by interference in revision - either because there is no other remedy or the remedy is top remote or cumbersome to be of any practical utility in the particular circumstances of the case." In Mt. Suraj Pali v. Ariya Pretinidhi Sabha, AIR 1936 All 686 FB C, while it was admitted by Sir Shah Mohammad Sulaiman C. J. that the word case was wider than the word suit and therefore a branch of the suit could fall within it, it was observed that the word case could not be given such a wide meaning as to cover every interlocutory order passed by a court during the trial of a suit. In view of the restrictions placed on the exercise of the revisional jurisdiction by the High Court in the clauses sub -joined to section 115, Civil P. C., no exception can be taken to this proposition. AIR 1936 All 686 FB C, however, laid down that an order refusing to allow an amendment 1 of the plaint was not revisable and overruled an earlier Single Bench ruling of the same High Court reported in - Rurmal Ram Nath v. Kapil Man, AIR 1935 All 353 D in which it had been held that refusal to allow an amendment of the plaint was a case decided within the meaning of S. 115, Civil P. C. A perusal of the judgment reported in AIR 1936 All 686 FB C would show that this decision of the Full Bench was mainly influenced by the consideration that it would be anomalous to hold that an order refusing to allow an amendment of the plaint was a case decided while an order allowing such an amendment would not be revisable. The point, however, has arisen in other High Courts where the view taken in the AIR 1936 All 686 FB C case has not been followed. In - Narayan Sonaji v. Seshrao Vithoba, AIR 1948 Nag 258 FB E it was held that an order amending or refusing to amend plaint or other pleading was open to revision. It may be stated here that an order refusing to allow amendment of plaint is not appealable in itself though the point can be taken up in appeal when it is preferred from the final decree in the case. From, the observations in AIR 1943 Lah 65 FB B. referred to above, it may be arguable that unless an irreparable wrong is done to a party by an interlocutory order which is not appealable in itself, a revision from that order may not be entertained by the High Court if an appeal can be preferred from the final decree As quoted above, the rule laid down in AIR 1943 Lah 65 FB B was that the High Court will not be justified in interfering in revision unless the grave wrong done to the party by the interlocutory order against which it felt aggrieved cannot be prevented or remedied except by interference in revision. This might mean that if an appeal lay from the final decree in the case an interlocutory order, though it may do a grave wrong to a party,, would not be revisable. As a matter of fact, however, the rule enunciated in the above case is not so narrow. After the observation referred to above, as already indicated, it contains the following words: