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Case Number
Advocates
  • Mohan Lal Sud
  • Harish Chander
Judges
  • Chowdhry, J.C
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mohan Lal Sud
  • Harish Chander
Judges
  • Chowdhry, J.C
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Smart Summary

Summary of the Opinion (as provided)

Factual and Procedural Background

The plaintiffs' father, Tulsi, executed a registered deed dated 8-12-1997 creating occupancy rights in favour of ten persons over land measuring 27 bighas and 3 biswas for Rs. 2,160/-. The plaintiffs filed suit on 21-9-2002 for a declaration that the alienation would not be binding on them after their father's death on the ground that the property was ancestral and the alienation had been made without consideration or legal necessity. The alienor (their father) and all the alienees were impleaded as defendants. One alienee, Kapuro, died during the pendency of the suit and was substituted by his three sons.

The trial Court decreed the suit on 23-11-1949, subject to the condition that the plaintiffs could recover possession on payment of Rs. 1,390/- to the alienees. Four of the alienees appealed before the District Judge on 3-1-1950. On 10-2-1951, an application was made in the lower appellate Court (the District Judge) by the defendants-appellants to amend their written statement to plead that the property was self-acquired (non-ancestral). The District Judge allowed the amendment on 15-3-1951 and, on the same date, allowed the appeal and remanded the case to the trial Court for permitting the amendment and for deciding the issue(s) that might arise after the amendment. The judgment and decree of the trial Court were not set aside by the District Judge when he allowed the appeal and remanded the case.

Legal Issues Presented

  1. Whether the High Court could exercise revisional jurisdiction under Section 115 of the CPC (and Para. 35 of the Bilaspur (Courts) Order, 1949) against the lower appellate Court's order allowing amendment of the written statement and remanding the case.
  2. Whether the lower appellate Court correctly allowed amendment of the defendants' written statement (despite apparent implications of Order VIII Rule 5 of the CPC) on the ground that the written statement had been drafted by a petition-writer without legal assistance.
  3. Whether the remand made by the lower appellate Court purportedly under Section 151 of the CPC was constitutionally/procedurally permissible, or whether the proper procedure was to remit the issue under Order XLI Rule 25 of the CPC or to set aside the trial decree before such a remand.

Arguments of the Parties

Plaintiffs / Petitioners' Arguments

  • The plaintiffs relied on authorities (including the Lahore Full Bench decision in Bibi Gurdevi v. Mahomed Baksh and R.B. Shrinarain v. Kishanlal) to argue a broad interpretation of the word "case" in Section 115, such that an interlocutory order deciding a substantial question affecting rights (like whether property is ancestral) may be subject to revision if it causes or is likely to cause gross injustice or irreparable injury.
  • They contended that the defendants' written statements were silent on the plaint allegation that the property was ancestral and, under Order VIII Rule 5 CPC, those defendants must be deemed to have admitted that allegation; hence amendment should not have been permitted.
  • They argued the defendants who sought amendment did not attempt during trial to prove that the property was self-acquired, and that allowing the amendment would be an afterthought and a means of fishing for additional pleas rather than truly determining the real question in controversy within Order VI Rule 17 CPC (as illustrated by Gambhirmal v. Gyanchand).

Defendants / Respondents' Arguments

  • The defendants-respondents raised a preliminary objection that no revision lay because the order of the lower appellate Court allowing the amendment did not amount to a "case decided" within Section 115 CPC or the corresponding provision in Para. 35 of the Bilaspur (Courts) Order. They cited several authorities in support of a narrow approach.
  • They asserted the amendment should have been allowed because the omission was attributable to a petition-writer and the defendants lacked legal assistance; therefore strict application of Order VIII Rule 5 CPC would work injustice.
  • They further argued that mere delay or laches is not a sufficient ground to disallow amendment; reliance was placed on authority (Dharmalinga Chetti v. A.M. Krishnaswami Chetty) that delay may be condoned in deserving cases.
  • They relied on additional precedents (e.g., Sambasiva Ayyar v. Natesa Ayyar; G.M.C Kerzie & Co. v. Tatanlal Suryajmall) asserting delay alone should not defeat amendment where the amendment is necessary to determine real controversies.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mt. Surajpali v. Ariya Pratinidhi Sabha, AIR (23) 1936 All 636 (FB) Cited by defendants to support the contention that an interlocutory order allowing amendment is not necessarily a "case decided" under S.115 CPC (narrow view). The Court recorded that this authority was cited by respondents but preferred the broader Lahore Full Bench approach instead; therefore this authority was not followed to deny revisional jurisdiction.
Purshotam Lalji v. Haranarayan Dass, AIR (23) 1941 Oudh 87 Cited by respondents in support of a narrow interpretation of "case" under S.115 CPC. The Court noted it was cited for that purpose but did not follow the narrow approach in the present matter.
Ram Pyari v. Gobind Prasad, AIR (28) 1941 Oudh 623 Cited by respondents to support preliminary objection about the limited scope of S.115. The Court considered this authority among others but preferred the wider interpretation given by the Lahore Full Bench.
Bibi Gurdevi v. Mahomed Baksh, AIR (30) 1943 Lah 65 (Lahore Full Bench) Laid down that "case" in S.115 is of wide import, including interlocutory orders deciding substantial questions affecting rights; revision may lie in cases of gross injustice or irreparable injury. The Court expressly preferred and followed this wider interpretation and applied it to find the amendment order was a decision on a substantial question, thus amenable to revision.
R.B. Shrinarain v. Kishanlal, AIR (39) 1952 Rajas 15 Cited by petitioners as following the Lahore Full Bench approach on the meaning of "case" under S.115. The Court cited this decision as part of the authorities supporting a wide view of revisional jurisdiction and relied upon that line of authority.
Gambhirmal v. Gyanchand, AIR (37) 1950 Raj 20 Cited for the proposition that amendment must be for the purpose of determining the real question in controversy (Order VI Rule 17 CPC) and not to permit afterthoughts. The Court relied on this authority to support the conclusion that the amendment sought in the present case was an afterthought and not directed to resolving the real controversy.
Dharmalinga Chetti v. A.M. Krishnaswami Chetty, AIR (36) 1949 Mad 467 Cited by respondents for the principle that mere delay or laches is not always a ground for disallowing amendment; delay may be condoned in deserving cases. The Court noted the principle but held that the present case did not constitute a deserving case where delay should be condoned; the authority did not persuade the Court to allow the amendment.
Sambasiva Ayyar v. Natesa Ayyar, AIR (25) 1938 Mad 288 Cited by respondents regarding amendment and delay principles. The Court observed the precedent but concluded it was inapplicable because the omission here could not be attributed to mere carelessness nor would amendment leave substantial rights unaffected.
G.M.C Kerzie & Co. v. Tatanlal Suryajmall, AIR (22) 1935 Pat 463 Cited for the proposition that delay alone is not adequate to refuse amendment if amendment is otherwise necessary to determine the real questions in controversy. The Court found the conditions of that case not present here and therefore did not allow the amendment on that basis.

Court's Reasoning and Analysis

The Court proceeded through a structured analysis, addressing both jurisdictional and substantive issues strictly on the basis of the material in the record:

  1. Jurisdiction under Section 115 / Para. 35: The Court considered rival authorities concerning the scope of "case decided" under Section 115 CPC. It preferred the Lahore Full Bench's broader interpretation (Bibi Gurdevi) that a "case" may include an interlocutory order deciding a substantial question affecting rights and that such orders are amenable to revision where they produce or threaten gross injustice or irreparable injury. The Court held the amendment order in the present case fell within that ambit because it decided a substantial question — whether the property was ancestral or non-ancestral.
  2. Nature of the amendment sought and application of Order VIII Rule 5 CPC: The Court examined the pleading history. Paragraph 3 of the plaint alleged the property was ancestral. One set of defendants (nos. 2,3,4,8,10) filed a written statement silent on that allegation (which, on its face, amounts to admission under O.8 R.5). Defendant No. 9 (Kapuro) effectively admitted the plaintiffs' case. The defendants-appellants later applied in the appellate Court to amend their written statement to plead that the property was self-acquired.
  3. Evaluation of alleged reasons for amendment: The defendants' explanation — that a petition-writer had inadvertently or collusively omitted the plea or that they lacked legal assistance — was examined and found unconvincing. The Court observed that the defendants who sought amendment had made no attempt during the trial to prove the property was self-acquired. Their conduct during trial suggested tacit admission rather than an inadvertent omission. The Court therefore concluded the District Judge's rationale (that the defendants were in the hands of a petition-writer and lacked legal help) was untenable in this case.
  4. Purpose of amendment and Order VI Rule 17 CPC: The Court concluded the amendment was sought as an afterthought or an attempt to introduce a fresh plea by way of fishing expedition, not "for the purpose of determining the real question in controversy" within the intendment of O.6 R.17 CPC. The Court relied on Gambhirmal v. Gyanchand to emphasize this point.
  5. Procedural impropriety of the remand order: The Court analysed the remand purportedly made under Section 151 CPC and held the remand order was erroneous. The correct course, if remand were justified, would have been to remit the relevant issue under Order XLI Rule 25 CPC and postpone deciding the entirety of the appeal until the trial Court returned its finding. Instead, the District Judge remitted the whole case for fresh decision on the entire case after disposing of a single issue without setting aside the trial Court's decree. The Court explained this would create an impossible situation in which the trial Court might issue a decree inconsistent with the existing decree which had not been set aside — an outcome reflecting irregular exercise of appellate jurisdiction.
  6. Conclusion on reviewability and relief: Because the lower appellate Court had acted without applying the correct principles of procedure (and had thereby created an impossible situation), the High Court considered that revisional jurisdiction was properly invoked and that the impugned orders should be set aside as irregular.

Holding and Implications

Holding: REVISION ALLOWED. The High Court set aside:

  • the District Judge's order dated 15-3-1951 allowing the application for amendment of the written statement;
  • the judgment and decree of the District Judge dated 15-3-1951 allowing the defendants' appeal and remanding the case to the trial Court.

Direct effect on the parties:

  • The impugned amendment order and the appellate judgment and remand were set aside.
  • The case was sent back to the District Judge for proper disposal of the appeal according to law (i.e., to proceed without the erroneous amendment-order/remand that had been set aside).

Broader implications:

The opinion does not elaborate on establishing any new general precedent beyond applying and preferring existing authority (notably the Lahore Full Bench) for a broader interpretation of "case" under Section 115 CPC. The Court confined itself to correcting the irregular exercise of appellate jurisdiction in the facts of this case and directed appropriate further proceedings; it did not state broader novel legal principles beyond those expressly discussed.

Disposition

Final order recorded in the opinion: "Revision allowed." The case is remitted to the District Judge for disposal of the appeal in accordance with law after setting aside the impugned orders of 15-3-1951.

Show full summary ...

    Sukh Ram v. Narainoo

    1. This is plaintiffs' application in revision and it arises in the following circumstances. The plaintiffs' father Tulsi created occupancy rights in land measuring 27 bighas and 3 biswas in favour of 10 persons by a registered deed dated 8-12-1997, for Rs. 2,160/-. Thereupon the present suit was filed by the plaintiffs on 21-9-2002, for a declaration that the alienation will not be binding on them after the death of their father because the property alienated was ancestral property and the alienation had been made without consideration or legal necessity. The alienor, the father of the plaintiffs, and all the alienees were impleaded as defendants. One of the alienees, Kapuro, died during the pendency of the suit in the trial Court and was substituted by his three sons.

    2. The trial Court decreed the suit on 23-11-1949 but laid down the condition that the plaintiffs would be entitled to recover possession of the property in suit on payment of Rs. 1,390/- to the alienees. Thereupon four of the alienee defendants filed an appeal before the District Judge on 3-1-1950. On 10-2-51, which had been fixed as the date for arguments by an order dated 5-1-1951, an application was put in before the lower appellant Court on behalf of the defendants-appellants for the amendment of their written statement by being allowed to plead that the property in suit was not ancestral qua the plaintiffs but rather the self-acquired property of their father Tulsi. The application was contested by, the plaintiffs but the learned District Judge allowed it on 15-3-1951 on the ground that, although strictly speaking the defendants might be deemed under O. 8, R. 5 of the CPC, to have admitted the plaint allegation as regards the ancestral nature of the property in suit, the amendment sought by them should be allowed because the written statement filed in the trial Court had been drafted by a petition-writer without the help of a lawyer. The learned District Judge was, therefore, of the opinion that a strict application of the provisions under O. 8, R. 5, would in the present case result in injustice to the defendants. On the same date, after allowing the aforesaid application of the defendants-appellants, he delivered judgment in the appeal and allowing the appeal remanded the case to the trial Court for permitting the amendment of the written statement and then deciding the issue that might arise in consequence of the amendment and give final decision in the case. The judgment and decree of the trial Court were not set aside by the learned District Judge while allowing the appeal and remanding the case as aforesaid.

    3. It may be stated here at this stage that the remand order, purporting to have been passed by the lower appellate Court under Section 151 of the CPC, was erroneous. Even if it be supposed that the remand was justified, the proper course for the lower appellate Court to adopt was to remit the relevant issue after amendment of the written statement under O. 41, R. 25 of the CPC, and postpone the decision of the entire appeal until receipt of finding from the trial Court on that issue. As it is, without setting aside the decree passed by the trial Court the learned District Judge has required that Court to come to a fresh decision on the entire case after disposing of the single issue on the question of the nature of the property. If the decision on that issue were to be in favour of the defendants, the trial Court would be faced with the difficulty of having to pass a decree dismissing the plaintiffs' suit which would be in conflict with the decree already passed by that Court in favour of the plaintiffs, and which had not been set aside by the lower appellate Court and the Court itself would have no jurisdiction to set aside merely by reason of its having come to a contrary finding on the issue remitted to it. The judgment in appeal passed by the lower appellate Court, therefore have to be set aside in any case, whatever, the result of the present revision. And I should have no difficulty in doing so since although the petitioners have not prayed for that relief in so many words, that relief is implicit in the last paragraph of the grounds of revision pleading that the order of remand under Section 151 of the CPC, was arbitrary and uncalled for. Where a Court passes an order, as the lower appellant Court has passed the aforesaid order of remand, without applying its mind at all to the correct previsions of the procedural law, and where the passing of that order has the result of creating an impossible situation, the Court will be deemed to have acted irregularly in the exercise of its jurisdiction, and there would in the circumstance be ample justification for this Court to set aside the order in question in exercise of its revisional jurisdiction.

    4. A preliminary objection was taken by the learned counsel for the defendants-respondents that no revision lay as the order of the lower appellate Court allowing the amendment did not amount to a case decided within the provision of Section 115 of the CPC, or the corresponding provision in paragraph 35 of the Bilaspur (Courts) Order, 1949. In support of this contention he cited the following rulings: ‘Mt. Surajpali v. Ariya Pratinidhi Sabha’ AIR (23) 1936 All 636 (FB); ‘Purshotam Lalji v. Haranarayan Dass’, AIR (23) 1941 Oudh 87 and Ram Pyari v. Gobind Prasad’, AIR (28) 1941 Oudh 623. On the other hand, the learned counsel for the plaintiffs-petitioners cited the Full Bench case of the Lahore High Court reported os ‘Bibi Gurdevi v. Mahomed Baksh’, AIR (30) 1943 Lah 65 and ‘R.B Shrinarain v. Kishanlal’, AIR (39) 1952 Rajas 15, which followed the Lahore luting but not the Allahabad ruling cited by the learned counsel for the respondents. The Lahore ruling laid down as follows:

    “The word ‘case’ in S. 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any subsantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a ‘case decided’ within the meaning of S. 115, but it will be open to revision only if the other conditions expressly laid down in S. 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.”

    5. With all respect, I prefer to follow the Lahore ruling putting as if does a wider interpretation on the word ‘case’ in the aforesaid provisions and thus enabling a High Court to remedy gross injustice or irreparable injury which it might not be possible otherwise to do. All that has to be seen is whether the order impugned amounted to a decision on any substantial question in controversy between the parties, and whether in passing such an order the lower Court has laid the order open to the question on one of the grounds mentioned under Section 115 of the CPC, or, so far as, this Court is concerned, under Para. 35 of the Bilaspur (Courts) Order.

    6. Now so far as the present case is concerned, there could be no doubt that the order of amendment passed by the lower appellate Court is an order which amounts to a decision on a substantial question intimately affecting the rights of the parties, for the question whether the property in suit was ancestral or non-ancestral would go to the very root of the matter. As to whether there does, or does not, exist any ground mentioned in Para. 35 of the Order for setting aside the lower appellate Court's order, that is a question which I shall consider presently.

    7. It was specifically alleged in Para. 3 of the plant that the property in suit was ancestral qua the plaintiffs. The number of the alienee defendants in this case was 11. One-third of the property had been alienated in favour of the defendants 2 to 8, all brothers, one-third in favour of defendant 9, Kapuro, and one-third in favour of defendants 10 and 11, Nihala and Bhagat. There were two written-statements filed in this case, one by defendants 2, 3, 4, 8 and 10, and the other by defendant No. 9. The former written statement, while replying to the other allegations contained in paragraph 3 of the plaint with regard to the alienation having been made otherwise than for consideration and legal necessity, was quite silent with regard to the plaint allegation that the property alienated was ancestral qua the plaintiffs. In the circumstance, on the face of it, the defendants who filed that written statement would be deemed, in view of the provisions of O. 8, R. 5, to have admitted the afore said plaint allegation about the ancestral nature of the property. Kapuro in his written statement, on the other hand, in effect admitted the whole case of the plaintiffs, for apart from pleading that the alienation was for consideration he did not justify it by pleading that it was for legal necessity, and, moreover, he admitted the plaint allegation that the property was ancestral and the plaintiffs had the right to have the alienation set aside.

    8. In the aforesaid application dated 10-2-1851, which was filed by the defendants-appellants in the lower appellate Court for amendment of, the written statement, it was alleged that the petition-writer who had drafted the written statement of the appellants had either inadvertently or collusively omitted to insert in the appellants' written statement the plea that the property in suit was non-ancestral qua the plaintiffs, or rather the self-acquired property of the alienor. It was further alleged that Kapuro had colluded with the plaintiffs and their father, and that it was the duty of the trial Court to have the point clarified by examining the parties before framing the issues. It was also alleged that the petition-writer who scribed the two written-statements was one and the same person. This latter allegation, however, appears to be incorrect. On the aforesaid allegations the said amendment was prayed for.

    9. Now, it is somewhat strange that Kapuro should have admitted the plaintiffs' case almost in toto, and this in spite of the fact that individually he had the largest share in the property. It is further not possible for me to ascribe it necessarily to a collusion between Kapuro and the plaintiffs or the plaintiffs' father, for it may be that Kapuro filed the said written statement realising the correctness of the plaintiffs' case. Be that as it may, the fact remains that at no stage during the trial of the case before the Subordinate Judge did the defendants who prayed for the amendment of the written statement, and who were amongst the contesting defendants in the trial Court, make any attempt whatsoever to prove that the property in suit was non-ancestral qua the plaintiffs but the self-acquired property of the plaintiffs' father Tulsi. This conduct of the aforesaid defendants in my opinion falsified their contention that the petition-writer drafted their written-statement against their instructions either inadvertently or collusively. On the contrary, that conduct lends support to the view that their silence in the written-statement with regard to the mature of the property in suit was due to a tacit admission on their part that the plaint allegation as to the property being ancestral qua the plaintiffs was correct. It is clear therefore that the ground on which the learned District Judge purports to have allowed the amendment application, namely, that the defendants-appellants were in the hands of a petition-writer and had not the advantage of legal help and should not, therefore be allowed to suffer, is totally untenable.

    10. There is no doubt that it has been laid down that pleadings in India, especially in backward tracts like the present, should not be construed strictly. But the benefit of that proposition cannot be extended to the defendants in the present case in view of the circumstances mentioned above. Their application for amendment appears to have been filed because, having been unsuccessful on the pleas raised by them, they wanted to try their luck on an additional plea by way merely of an after-thought. That being so, it cannot certainly be said that the amendment in question was sought, or should have been allowed “for the purpose of determining the real question in controversy between the parties” within the intendment of O. 6, R. 17 of the CPC. ‘Gambhirmal v. Gyanchand’, AIR (37) 1950 Raj 20. The law and facts, as just stated, were not at all taken into consideration by the learned District Judge in passing the order of amendment. Furthermore, he passed that order in the teeth of the provisions of O. 8, R. 5 of the CPC which he himself admitted as being strictly speaking applicable in the present case. That being so, he should be deemed to have acted irregularly in the exercise of his jurisdiction in passing the said order, and this Court should set aside that order in exercise of its revisional jurisdiction.

    11. The learned counsel for the defendants-respondents was at pains to show that mere delay or laches should be no ground for disallowing the amendment. That is no doubt true as laid down in the ruling cited by him, i.e, ‘Dharmalinga Chetti… v. A.M Krishnaswami Chetty….’, AIR (36) 1949 Mad 467. At the same time as laid down in the same ruling, it is only in a deserving case that delay would be condoned. For reasons recorded this cannot be predicated of the defendants application for amendment in the present case. He also cited ‘Sambasiva Ayyar v. Natesa Ayyar’, AIR (25) 1938 Mad 288, but the ruling has no application since the omission sought to be rectified by amendment cannot be attributed to mere carelessness in the present case, nor can it be said that if amendment is allowed in the present case the substantial rights of the parties would not be affected. In such a case amendment cannot be allowed simply by awarding costs against the party praying for the same. Another ruling cited by him was G.M.C Kerzie & Co. v. Tatanlal Suryajmall’, AIR (22) 1935 Pat 463, where it was held that delay would not be adequate reason for disallowing amendment if the amendment is otherwise called for in order to determine the real questions in controversy between the parties. It has already been seen that to allow the amendment in the present case would not serve that purpose, but would rather be tantamount to helping a party which was fishing for new pleas. The revision is allowed with costs, the order of the learned District Judge dated 15-3-1951 allowing the application for amendment, and the judgment and decree of the learned learned District Judge of the same date allowing the defendants' appeal & remanding the case to the Court below, are both set aside, & the case is sent back to him for disposal of the appeal before him according to the law.

    V.B.B

    12. Revision allowed.

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    Comments

    Sukh Ram v. Narainoo
    (Jan 11, 1952)