RURMAL RAM NATH Vs. KAPIL MAN MISIR

JUDGEMENT

(1.) These are two applications in revision against an order of the Second Additional Subordinate Judge of Gorakhpur, rejecting a petition of the plaintiff- applicant to amend his plaint in a certain suit. The suit was for recovery of Rs. 11,000, odd on the basis of a note of hand which is alleged to have been executed by defendant 1, on 10 October 1932, the consideration for the said note of hand being the balance which was found to be due from defendant 1 upon an accounting between the parties. Execution of the note of hand was apparently denied and the document was sent to the Examiner of Questioned Documents. The latter's report was against the plaintiff and accordingly on 14 July 1933, the plaintiff applied for amendment of his plaint in such a manner as to base his claim alternatively on the bahi khata account. The application was rejected by the Court below on the ground that the amendment sought for would change the basis of the suit. A similar application was, made by the plaintiff a month later and it, too, was rejected on 14 August 1933.

(2.) An objection is taken before us or behalf of the defendant-respondent that the order of the Court below does, not amount to a "case decided" within, the meaning of Section 115, Civil P.C. There are a number of reported cases, of this Court in which the question as to what constitutes a "case decided"" has been considered; but there is only one reported case - a Single Judge case - which deals directly with the refusal of a Court to allow an amendment of a plaint. I will discuss this latter ruling in its due place. In 1921 a Full Bench of five Judges in Buddu Lal V/s. Mewa Ram 1921 All. 1, considered the question whether the finding of a Court on an issue as regards jurisdiction could or could not be the subject of revision. The defendants in that case had raised a plea, that the Court had no jurisdiction tarry the suit and the Munsif tried this-issue separately from the other issues;, and found that the suit was cognizable-by his Court. Three ofthe learned Judges, Piggolt, J., Ryves, J. and Gokul Prasad, J., were of opinion that not case had been decided within the meaning of Section 115, Civil P.C. and that the defendants had their remedy by way of appeal from the decree which., might be passed in the suit if it were-decided against them; but Rafiq, J., and Walsh, J., took a contrary view - and held that the High Court had jurisdiction to entertain a revision from., the Munsif's order. In jagannnath Sahu V/s. Chedi Sahu , an arbitrator who had been appointed by the Court at the request of the parties refused to act and the-defendant nominated certain other persons and prayed that any one of them be appointed as arbitrator. The plaintiff objected and prayed that the arbitration be superseded; but the Court: appointed a certain person to act as arbitrator on payment to him of Rs. 100, which should be met by the parties in equal shares. The plaintiff refused to pay his share and the Court thereupon ordered that the amount be recovered by attachment of his property. The question before this Court was whether the lower Court's order was or was not a decision of a case within the meaning of Section 115, Civil P.C. and the Bench - consisting of my learned brother and Sen, J. - found in the affirmative. The Court observed as follows: On 29 May 1928, the controversy between the parties was whether the arbitration should be superseded or should be continued and another arbitrator appointed...as desired by the defendant. The Court settled that controversy by its order of that date which directed that the arbitration should continue and appointed B. Ganesh Prasad to act as arbitrator. The controversy thus terminated. We think that the order of the learned Subordinate Juries in that connexion was clearly an order deciding a case.

(3.) In Muhammad Abdul Wahid Khan V/s. Radha Kishen , a mutawalli had applied to the District Judge for his permission to sell a certain property. Permission was granted, and the District Judge on a subsequent date accepted the offer of a certain person who wanted to buy the property; but thereafter and behind the latter's back he accepted the offer of another person and cancelled his acceptance of the offer of the first would - be purchaser. A Bench consisting of Mukerji, and Young, JJ., held that a case had been decided by the District Judge and that a revision therefore lay against his order and they observed that the words "a case decided by a Court" mean a matter which has been disposed of effectually by the Court and not merely for the time being.