PREMSUKHDAS Vs. SHANKERDAS

JUDGEMENT

(1.) JACKSON , A.J.C. 1. The plaintiff Shankerdas in his plaint claimed the property in dispute by virtue of ownership, as successor to one Thakurdas in the mahantship of the Balaji temple. In para. 14 of his written reply he pleaded that he was entitled, even if not the owner, to the management of the property. Subsequently he applied for permission to amend his plaint by adding a claim as manager. His application was allowed, but this Court in revision reversed the lower Court's order. In this Court it was pleaded on behalf of the plaintiff that the application, though called one for the amendment of the plaint, was not an application for amendment but only contained an explanation of his position as owner. This Court held that on that explanation by the plaintiff no amendment was necessary. This Court's order has clearly been misunderstood by the lower Court as holding that no amendment of the plaint was necessary as the claim, to be manager had been pleaded in the written reply. Issues have accordingly been framed on the view that the plaintiff's right to be manager can be considered without amendment of the plaint. An application was made for the issues to be confined to the plaintiff's original case based on ownership but that has been rejected and the defendants now apply for revision of the order rejecting it.

(2.) THE question arises whether Order 7, Rule 8, applies to the present case. That order runs as follows: Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.

(3.) IT has been contended on behalf of the plaintiff that under Section 115, Civil P.C. there can be no revision of the order. It has, however, been held in Venkubai v. Lakshman Venkoba [1888] 12 Bom. 617 that in any case where the Court, having a mistaken and wrong apprehension of the questions at issue, proceeds to determine an issue which does not really arise in the case and bases its decision of the case on its determination of that issue, it acts with material irregularity in the exercise of its jurisdiction. The same view has been taken in Sivaprasad Ram v. Tricomdas Coverji Bhoja [1915] 42 Cal. 926 and I am of opinion that revision of the order is possible. In the latter of the two oases mentioned, it was an interlocutory order that was revised. Any issue relating to the claim to possession as manager must be struck out. The application for revision is allowed with costs. I fix Bs 30 as pleader's fee.