MT SURAJ PALI Vs. ARIYA PRETINIDHI SABHA

JUDGEMENT

(1.) This is an application in revision from an order refusing to allow an amendment of the plaint. The plaintiff applied that the word "defendants" should be added in para. 2 where-from, according to her, it had been omitted by mistake. The case has been referred to a Full Bench owing to a conflict of opinion in this Court on the question whether the refusal to allow an amendment of a plaint is a case decided within the meaning of Section 115, Civil P.C., or not. That there has been an unfortunate conflict of opinion in this Court cannot be denied. Confining attention to the cases dealing with revisions from orders either allowing or refusing amendments of plaints, and not considering other cases, for instance applications for setting aside ex parte decrees or for setting aside awards or for applying to sue in forma pauperis, etc., the cases in favour of the applicant are as follows: In Kishan Lal V/s. Ram Chandra 1933 ALJ 268 the Court below had definitely debarred the plaintiff from proving a part of his claim by refusing to allow an amendment on the ground that the application had been unduly delayed. The learned Judge, on the analogy of certain previous cases, which admittedly were not directly in point, came to the conclusion that where the effect of the order was definitely to debar the plaintiff from proving a part of his claim, it was a final decision of the Court on that part of the case and was therefore a case decided within the meaning of Section 115, Civil P.C.

(2.) In Bala Prasad V/s. Radhey Shiam 1934 ALJ 126 an application for revision was directed against an order refusing to substitute the names of the two sons of a defendant who had. died before the filing of the suit but of whose death the plaintiff had been ignorant. The Bench came to the conclusion that the Court below should have allowed the amendment, and that the refusal to substitute the names of the sons in place of the defendant who was dead was the decision of a case within the meaning of Section 115, Civil P.C. Now this ruling is clearly distinguishable. Strictly speaking it was not a case purely of a mere amendment of a plaint. The suit, as originally filed, had been filed against a dead defendant and the proceeding was therefore a nullity as against his heirs. When an application was made that the heirs who should have been impleaded as defendants, and were the real defendants, should be brought on the record, a fresh proceeding was started against them and the previous suit could not be considered to have been merely continued as against them. The point for consideration before the Bench was whether the names should be added under Order 1, Rule 10, Civil P.C. Now Sub-rule 5 of that rule provides that subject to the provisions of the Limitation Act the proceeding as against any person added as defendant shall be deemed to have begun only on the service of the summons. Thus the sub-rule itself contemplates that the addition of a new party implies a fresh proceeding which is deemed to have begun only on the service of the summons on the added defendants and not to have commenced retrospectively from the institution of the suit. That case, therefore, is not really directly in point.

(3.) In a later case, in Rurahmal Ram Nath V/s. Kapil Man Misir 1934 ALJ 989, a revision was filed from an order refusing to amend the plaint in a suit which had originally been brought for the recovery of money on the basis of a promissory note and the plaintiff had sought to amend the plaint in such a manner as to base his claim alternatively on the bahi khata account. The learned Judges thought that the case came within the purview of Order 6, Rule 17, the latter portion of which makes it imperative for a Court to allow amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. The Bench approved of the opinion expressed by the learned single Judge in Kishan Lal's case (1). The question also arose in Beni Prasad V/s. Salig Ram 1935 AWR 613 before one of us. That was an application in revision against an order refusing an amendment of the plaint. There too the amendment was in the nature of a note made against defendants 1 and 2 that they were President and Secretary respectively of a certain Committee and also for the addition of a new party who had been alleged in the written statement to he the manager of that Committee. The case came within the purview of Order 1, Rule 8; but the Court below had disallowed the application on the ground that the plaintiff was seeking to alter the nature of the claim to a large extent. The case of Rurahmal Rurahmal Ram Nath v. Kapil Man Misir 1934 ALJ 989 was cited before the learned single Judge and he observed: In view of this ruling I consider that I should hold that the refusal to allow an amendment of the plaint is a case decided within the meaning of Section 115, Civil P.C.