CHANDRA KISHORE DAS Vs. BABULAL AGARWALA

JUDGEMENT

(1.) This revision is directed against the order of the Subordinate Judge, Puri, refusing to allow the defendant to amend his written statement. The plaintiff filed a money-suit for the recovery of Rs. 59,000 against Vijaya Stores, the petitioners before us, alleged to be due under an agreement for the supply of rice to the petitioners. One of the contentions raised by the defendant firm was that the plaintiff alone was not entitled to sue as he, along with one Brajakishore Naik, jointly executed the agreement in favour of the defendants for supply of rice. The plaintiff thereupon filed a petition under Order 1, Rule 10 and under Section 151, Civil P.C., to implead Brajakishore Naik as a pro forma defendant. The Court directed the addition of Brajakishore as defendant 2 and the plaint was accordingly amended. Summons was issued to defendant 2 and on 4 August 1945 defendant 2 filed his written statement. On 5 September 1945 defendant 1 filed a petition for amending his written statement by the addition of certain paragraphs after para. 18 of that statement. The learned Subordinate Judge, however, refused to allow the amendment to be made, and hence this revision petition.

(2.) A preliminary objection has been raised by Mr. Mohapatra, learned advocate appearing for the opposite party against the maintainability of this application for revision. His contention is that an interlocutory order in a suit is not "a case decided" so as to attract the operation of Section 115, Civil P.C. This expression has been the subject of much divergence of opinion among the several High Courts and even among Judges of the same High Court. It may, however, be taken to be settled now that the word case is wide enough to include an interlocutory order. A case is not identical with a suit or an appeal. It is of wide and comprehensive import and clearly covers a larger area than would be covered by a word like suit or appeal . It has thus been held that even an ex parte proceeding under the Religious Endowments Act constitutes a case within the meaning of this section. There is, however, a conflict of opinion as to whether an interlocutory order is a case decided within the meaning of this section. The Allahabad High Court has consistently held that an interlocutory order does not decide a case and that a case does not mean part of a case, and unless the whole suit is decided Section 115 does not operate. This view has been strongly reflected in the decisions of the Allahabad High Court reported in Budhoo Lal V/s. Mewa Ram A.I.R. 1921 ALL 1., Govind Das V/s. Mt. Indravati . and Dilkush Rai V/s. Dwarka Das . Strong reliance has been placed by Mr. Mohapatra on the latest Full Bench decision of the Allahabad High Court reported in Suraj Pali V/s. Arya Pratinidhi Sabha A.I.R.1946 ALL. 686. The Full Bench decided that the word "case" should not be given such a wide meaning as to cover every interlocutory order passed by a Court during the trial of the suit. It was pointed out that there was an anomaly in holding that when an application for amendment has been allowed no "case" can be said to have been decided so as to be made the subject of a revision while if the amendment is disallowed, a revision will lie. These were the two currents of opinion prevailing in that Court. The Full Bench set at rest this controversy by laying down that the cases which held that no revision lies from orders merely allowing or disallowing amendments, which are to some extent matters of discretion, seem to have laid down the correct law. It was accordingly held that no revision lay from an order refusing to allow the amendment of a pleading. It was, however, observed that if the amendment comes under some other order of the Court, e. g., the addition or substitution of parties, it may amount to a "case decided" and, therefore, revisable, but an order passed under Order 6, Rule 17, is not.

(3.) Mr. Mohapatra also drew our attention to a case reported in Indubala v. Lakshminarayan where it was broadly stated that the Calcutta High Court would not interfere with interlocutory orders unless an irreparable injury will be done, but it has been the consistent policy of the Calcutta High Court to interfere, in revision, with interlocutory orders of the subordinate Courts, where there might be a failure of justice if the matter is not set right.