GH MOHD ARM Vs. GH HASSAN ARM

JUDGEMENT

(1.) IN a suit for rendition of accounts and dissolution of partnership pending in the court of City Munsiff, Srinagar, the defendant was appointed Receiver of the alleged joint business but vide order dated 29 -11 -1977 he was removed from Receivership on grounds stated in the order. An appeal was preferred by the defendant in the court of Sub Judge (CJM) Srinagar against this order on the ground that the defendant was not given an opportunity to produce evidence and that the trial court removed him from the receivership merely on the evidence adduced by the plaintiff. During arguments before the 1st. Appellate Court, the learned counsel for the plaintiff appears to have conceded that the defendant had not been given an opportunity for adducing his evidence with regard to the receivership matter. But before an order could have been passed by the 1st Appellate Court in this regard an application was submitted by the defendant for permission to amend his written statement. The plaintiff filed objections to this application and after hearing both the parties the application for amendment of the written statement was allowed by the 1st Appellate court and the matter was remanded to the trial court". It was against this order that the present revision has been filed. A ground taken in this revision by the plaintiff is that the 1st Appellate Court was not within its jurisdiction to permit the defendant to file an amended written statement as according to the plaintiff no proceedings were pending in the 1st Appellate court at the time when the impugned order was passed.

(2.) DURING arguments submitted by the learned counsel for the parties, the order of the 1st Appellate court directing the remand of the case for giving proper opportunity to the defendant to lead evidence was not, however, assailed. The part of the impugned order permitting the amended written statement to be filed only was made subject of attack. According to the learned counsel for the plaintiff, the court under order 6 Rule 17 C.P.C. was no doubt, empowered to allow at any stage of the proceedings either party to amend or alter its pleadings in such a manner and on such terms as may be just, but he contended that no proceedings were pending in the first appellate court when the order for permission to amend the plaint was passed and therefore, the court could not have in law considered the matter and give the relief as it has. According to him the matter concerning the appointment or removal of the receiver only was pending in the first appellate court while the suit itself was still before the trial court. He contended that the impugned order could have been passed only in case the suit itself had been pending in appeal in the first appellate court. He submitted that (he appellate court had powers under section 107 CPC to permit the amendment of the written statement had the whole suit been pending before it in appeal or otherwise. On the other hand, Mr. ST Hussain appearing for the defendant has contended that the matter of appointment or otherwise of a receiver was a part of the whole and was as such a part of the proceedings and under O. 7 R 17 CPC read with section 107 CPC, the 1st Appellate court was within its powers to make the order as its has.

(3.) UNDER Sub section 2 of Section 107 CPC the appellate court possess the same powers and performs same duties as are conferred by the Code of Civil Procedure on courts of original jurisdiction in respect of suits instituted therein subject to, of course, certain limitations. The appellate court could determine a case finally, remand it, frame fresh issues and refer them for trial and also take additional evidence as the case may be. The plaintiffs argument was that the appellate court could exercise the same powers as that of original court under section 107 CPC only if a suit or an appeal against a decree in a suit was pending before it. His contention was that in the instant case neither the suit was pending in the 1st appellate court nor an appeal against the decree was so pending and therefore, the 1st appellate court had acted illegally while permitting the defendant to amend his written statement. The argument, however, seems to be fallacious as the 1st appellate court while passing the impugned order was exercising its authority with regard to a matter which had arisen out of the suit itself. The appointment or removal of receiver was part of the suit and therefore, a proceeding between the parties. The fact that the receiver was appointed or removed on the basis of a separate application does not render that application into anything extraneous to the suit itself. The matter is a part of the whole. All the controversial matters between the parties with regard to a suit right upto the last appeal continue to be proceedings and any part thereof also forms a part of such proceedings. It was as early as 1929 that in a judgment reported in AIR 1929 Bombay: 262 it was laid down by the Bombay court as follows: "The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings connected by an intrinsic unity." The appeals and all other proceedings, therefore, pending between the parties in a civil matter form part of the proceedings.