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CASE NO.:

Appeal (civil) 104 of 2002

PETITIONER:

PREM BAKSHI & ORS.

Vs.

RESPONDENT:

DHARAM DEV & ORS.

DATE OF JUDGMENT: 09/01/2002

BENCH:

K.T. Thomas & S.N. Phukan

JUDGMENT:

Phukan, J.

This appeal by special leave is directed against the order

of the High Court of Punjab & Haryana at Chandigarh. Shortly put,

the facts are as follows: -

The suit land originally belonged to Durga Dass who

mortgaged the same to Sunder Dass and Udhey Ram. The

appellants and respondent Nos.2 to 5 are the legal heirs of Sunder

Dass and Udhey Ram. When it came to the notice of the appellants

that on the death of Durga Dass, defendant/respondent No.1,

Dharam Dev got his name mutated in the revenue record, the present

suit was filed for declaration of joint ownership of the land of the

appellants and respondent Nos.2 to 5 on the ground that neither

Durga Dass nor his legal heirs could get the suit land redeemed

within a statutory period and also for permanent injunction restraining

respondent No.1 from alienating the suit land. In the said suit an

application under Order 6 Rule 17 CPC for amendment of the plaint

was filed. It was pleaded that from a subsequent civil suit filed by the

respondent No.1 against the appellants, it came to the knowledge of

the appellants that the suit land was sold by Durga Dass to Sunder

Dass and Udhey Ram adjusting the mortgage amount and later on a

pre-emption suit filed by Amar Nath, son of Kamal Krishna and

another, which was decided in the year 1943 and it was decreed that

the plaintiffs in that suit on payment of certain amount, within the time

specified by the Court, to Sunder Dass and Udhey Ram, the suit

would stand decreed and in case of non payment, suit would stand

dismissed. The present respondent No.1 is the son of Amar Nath. It

was stated in the said application that as the amount directed by the

court was not paid, there was no decree for pre-emption and the suit

stood dismissed and accordingly, prayer was made for amendment of

the plaint. The trial court allowed the application which was set aside

by the High Court by the impugned order on the ground that the

appellants want to attack a decree passed in 1943 in the present suit

which was filed in the year 1999 and, therefore, it is barred by

limitation.

The short question for determination is whether the

impugned order was revisable by the High Court by exercising

powers under Section 115 CPC. The said section runs as follows: -

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"115. Revision (1) The High Court may call for the

record of any case which has been decided by any

Court subordinate to such High Court and in which no

appeal lies thereto, and if such subordinate Court

appears

(a) to have exercised a jurisdiction not vested in it

by law, or

(b) to have failed to exercise a jurisdiction so

vested, or

(c) to have acted in the exercise of its jurisdiction

illegally or with material irregularity,

the High Court may make such order in the case as it

thinks fit:

Provided that the High Court shall not, under this

section, vary or reverse any order made, or any order

deciding an issue, in the course of a suit or other

proceeding, except where

(a) the order, if it had been made in favour of the

party applying for revision, would have finally

disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a

failure of justice or cause irreparable injury to the

party against whom it was made.

(2) The High Court shall not, under this section, vary or

reverse any decree or order against which an appeal

lies either to the High Court or to any Court

subordinate thereto.

Explanation. In this section, the expression "any

case which has been decided" includes any order

made, or any order deciding an issue, in the course of

a suit or other proceeding."

The proviso to sub-sections (1) and (2) with explanation

was added by the amending Act of 1976. By this amendment the

power of the High Court was curtailed; the intention of the legislature

being that High Court should not interfere with each and every

interlocutory order passed by the trial court so that the trial of a suit

could proceed speedily and that only the interlocutory order coming

under clause (a) or (b) of the proviso would be entertained by the

High Court.

In Major S.S. Khanna versus Brig. F.J. Dillon [AIR 1964

SC 497 = 1964 (4) SCR 409] this court considered the expression

"any case which has been decided' in sub-section (1) of Section 115

CPC and held that the expression 'case' is a word of comprehensive

import and includes civil proceedings other than suits and is not

restricted by anything contained in the said section to the entirety of

the proceeding in a civil court and to interpret the expression 'case'

as an entire proceeding only and not a part of the proceeding would

impose an unwarranted restriction on the exercise of powers of

superintendence by the High Court. This view of the High Court has

now been legislatively adopted by the parliament by introducing the

explanation to sub-section (1) of Section 115 CPC and, therefore, an

interlocutory order would be revisable. There is no doubt that present

order being an interlocutory order is revisable under Section 115, but

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for exercising powers under this section by the High Court, the order

must satisfy one of the conditions mentioned in clause (a) and (b) of

the proviso.

The proviso to sub-section (1) of Section 115 puts a

restriction on the powers of the High Court inasmuch as the High

Court shall not, under this section vary or reverse any order made or

any order deciding a issue, in course of a suit or other proceedings

except where (I) the order made would have finally dispose of the suit

or other proceedings or, (ii) the said order would occasion a failure of

justice or cause irreparable injury to the party against whom it is

made. Under clause (a), the High Court would be justified in

interfering with an order of a subordinate court if the said order finally

disposes of the suit or other proceeding. By way of illustration we

may say that if a trial court holds by an interlocutory order that it has

no jurisdiction to proceed the case or that suit is barred by limitation,

it would amount to finally deciding the case and such order would be

revisable. The order in question by which the amendment was

allowed could not be said to have finally disposed of the case and,

therefore, it would not come under clause (a).

Now the question is whether the order in question has

caused failure of justice or irreparable injury to respondent No.1. It is

almost inconceivable how mere amendments of pleadings could

possibly cause failure of justice or irreparable injury to any party.

Perhaps the converse is possible i.e. refusal to permit the

amendment sought for could in certain situations result in miscarriage

of justice. After all amendments of the pleadings would not amount to

decisions on the issue involved. They only would serve advance

notice to the other side as to the plea, which a party might take up.

Hence we cannot envisage a situation where amendment of

pleadings, whatever be the nature of such amendment, would even

remotely cause failure of justice or irreparable injury to any party.

From the facts extracted above it would show that

appellants only wanted to bring to the notice of the court the

subsequent facts and after amendment of the plaint, respondent No.1

would get opportunity to file written statement and he would be able

to raise all his defence. Ultimately if the suit is decided against the

respondent No.1, he would have a chance to take up these points

before the appellate court. It cannot be conceived of a situation that

the proposed amendment if allowed would cause irreparable injury or

failure of justice as the remedy of the respondent No.1, as stated

above, is by way of an appeal. We are, therefore, of the view that the

order allowing the amendment would not come under clause (b).

Accordingly, we hold that the High Court erred in law in

interfering with the order of the trial court allowing the prayer for

amendment of the plaint.

In the result, we find merit in the present appeal and

accordingly it is allowed by setting aside the impugned order and

restoring the order of the trial court. Considering the facts and the

circumstances of the case, we allow the parties to bear their own

costs.

..J.

[K.T. Thomas]

J.

[S.N. Phukan]

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January 09, 2002