LAWS(PVC)-1937-5-72

MUHAMMAD HUSAIN KHAN Vs. BABU KISHVA NANDAN SAHAI

Decided On May 07, 1937
MUHAMMAD HUSAIN KHAN Appellant
V/S
BABU KISHVA NANDAN SAHAI Respondents

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad, dated 23rd January 1933 which reversed a decree of the Subordinate Judge of Banda, dated 17 January 1929 and allowed the plaintiff's claim for possession of a village called Kalinjar Tirhati with mesne profits thereof. One Ganesh Prasad, a resident of Banda in the Province of Agra, was the proprietor of a large and valuable estate, including the village in dispute. He died on 10th May 1914 leaving him surviving a son, Bindeshri Prasad, who was thereupon recorded in the Revenue Records as the proprietor of the estate left by his father.

(2.) In execution of a decree for money obtained by a creditor against Bindeshri Prasad the village of Kalinjar Tirhati was sold by auction on 20 November 1924; and the sale was confirmed on 25 January 1925. Bindeshri Prasad then brought the suit, which has led to the present appeal, claiming possession of the property on the ground that the sale was vitiated by fraud. He died on 25 December 1926 and in March 1927 his widow, Giri Bala, applied for the substitution of her name as the plaintiff in the suit. She was admittedly the sole heiress of her deceased husband, and this application was accordingly granted. She also asked for leave to amend the plaint on the ground that under a will made by her father-in-law, Ganesh Prasad, on 5 April 1914 her husband got the estate only for his life, and that on the latter's death his life interest came to an end, and the devise in her favour became operative, making her absolute owner of the estate including the village in question. She accordingly prayed that, even if the sale be held to be binding upon her husband, it should be declared to be inoperative as against her rights of ownership. The trial Judge made an order allowing the amendment, and on 28 May 1927 recorded reasons to justify that order. But in July 1927 when the defendants in their additional pleas again objected to the amendment, the learned Judge framed an issue as to the validity of the amendment. He was, thereafter, transferred from the district; and his successor, who decided the suit, dismissed it on various grounds, and one of these grounds was that the amendment of the plaint changed the nature of the suit and should not have been allowed. The High Court, on appeal by the plaintiff, has dissented from that conclusion, and held that the amendment was necessary for the purpose of determining the real questions in controversy between the parties.

(3.) On behalf of the defendants, who are the appellants before their Lordships, it is contended that, while Giri Bala could continue the suit on the cause of action which accrued to her husband, she was not entitled to add to it an alternative cause of action which accrued to her in her personal capacity. It is however clear that the suit has been tried on the amended plaint, and that the parties have adduced all the evidence relating to both the causes of action. Their Lordships do not think that, even if there is any sub-stance in the objection raised to the amendment of the plaint, it should now be allowed to prevail, and all the time and labour expended on the trial of the suit should be thrown away. To prevent the mischief which may be caused by the reversal of the decree in a case of this kind, S. 99, Civil PC, 1908, provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal, on account of any misjoinder of parties or causes of action, or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Now, the High Court has decided that the trial of the suit on the alternative causes of action is sanctioned by the law, and it is not suggested that the alleged misjoinder of the causes of action has affected the merits of the case or the jurisdiction of the Court. The issue is now narrowed down to the simple point whether, even if there was a misjoinder, their Lordships should, on that ground, reverse the decree granted by the High Court. The provisions contained in the Civil Procedure Code do not regulate the procedure of their Lord-ships in hearing appeals from India, but there can be no doubt that the rule embodied in S. 99 proceeds upon a sound principle, and is calculated to promote justice; and their Lordships are not prepared to adopt a course which would merely prolong litigation. Assuming that the High Court has erred in overruling the objection to the amendment and in upholding the trial on both the causes of action, they do not think that the trial should be rendered abortive, when the alleged misjoinder has affected neither the merits of the case nor the jurisdiction of the Court.