The Judgment of the Court was delivered by
D. Basu, J.:— In this application under Section 115 of the C.P Code against an order, refusing a prayer for amendment of the written statement, passed by the learned Judge of the City Civil Court, 7th Bench, on September, 17, 1953, a preliminary objection has been raised that revision under Section 115 does not lie from an order granting or refusing amandment of pleadings because by such order there is no ‘case decided’ within the meaning of the section.
2. In support of this objection, reliance has been placed by the learned Advocate for the Opposite Party on certain decisions of the Allahabad, Lahore and Sind High Courts (such as Dassumal v. Kundanmal, AIR 1946 Sind 36), where it has been held that an order made under Order 6, Rule 17 of the C.P Code) is not revisable under S. 115. The broad principle on which these decisions rest is that a ‘case decided’ in Section 115 means the decision of the claim in a suit, so that an amendment of a pleading, which does not dispose of the claim in the suit or the rights of the parties to the cause, cannot be brought under Section 115. In short the word ‘case’ did not include a part of a casa (Buddhu Lal v. Mewa Ram, AIR 1921 All 1 (FB)). But as we shall see, this principle has not been adhered to rigidly even in the Allahabad High Court and some interlocutory orders have been held to be revisable under Sec. 115 even though they may not completely dispose of the suit (Ramrichpal Singh v. Dayanand Sarup, (S) AIR 1955 All 309 (FB)).
3. There has, of course, been a judicial controversy on the above question which may be said to be as old as the Code itself and the different High Courts in India liave, so to say, been divided into two camps and it is only a decision of the Supreme Court which can now settle this controversy. We find, however, that so far as the Calcutta Higfo Court is concerned, revision has been admitted and allowed from interlocutory orders, including orders relating to amendment of pleadings (e g., Lokenath v. Abani Nath, 37 Cal WN 1093 : (AIR 1934 Cal 102); Indu-bala v. Lakshmi Narayan, 60 Cal LJ 91 : (AIR 1935 Cal 102); Abdul Rahim v. Abdul Jabbar, 54 Cal WN 445 : (AIR 1950 Cal 379)) and we prefer to adhere to that view, for reasons which may be stated briefly as follows:
(a) The word ‘case’ not being defined in the Code, it should be interpreted literally, with reference to anything in the context which may be relevant. In Sec. 115, the relevant words are—
“The High Court may call for the record of any case which has been decided……”
There is a consensus of opinion amongst the High Courts that the word ‘case’ in this context is wider than the term ‘suit’ or appeal and that an application for leave to sue as pauper, an application to set aside an ‘ex parte’ decree or to restore a suit dismissed for default and the like, which are in the nature of ‘independent proceedings’, is a ‘case’ within the meaning of Section 115 (cf. Radha Mohan v. Abbas Ali, ILR 53 All 612 : (AIR 1931 All 294) (F.B).
(b) Once it is conceded that the records of a proceeding which is not necessarily a suit may be called for and the decision therein may be revised by the High Court, the emphasis shifts to the word ‘decided’.
4. It is true that a suit is not completely decided unless there is a ‘decree’ within the meaning of Section 2(2) of the CPC, or a ‘final order’ which has been explained by the Privy Council as ‘an order which finally disposes of the rights of the parties’, though it is not a ‘decree’ (Abdul Rahman v. D.K Cassim, and Sons, AIR 1933 PC 58). Now, as the definition of ‘order’ in sec. 2(14) shows, the word ‘decision’ is wide than the word ‘decree’ and all decisions of the Court which are not ‘decrees’ are ‘orders’, which include both final and interlocutory orders. It follows that an interlocutory order may claim to be a ‘decision’ within the meaning of the expression ‘case decided’ in S. 115 of the Code.
(c) Though no decision has gone to the extent of holding that all interlocutory orders in a suit or other proceeding are revisable under Sec. 115, an order allowing or amending has been brought within the ambit of the expression ‘case decided’ by the Madras High Court in Kariya v. Tirukkaivelu, AIR 1925 Mad. 585 (2); by the Nagpur High Court in Narayan v. Sheshrao, AIR 1948 Nag. 258 (F.B); by the Gujarat High Court in Shantilal Chunilai v. Shantilal Fulchand., AIR 1963 Guj. 195.
5. On the other hand, even in those High Courts which may be said to belong to the opposite camp, except in some old cases (e.g LR 43 All 564 : (AIR 1921 All 1) (FB)), no decision has gone to the extent of holding that no interlocutory order can be brought under sec. 115, in any cicumstances in AIR 1946 Sind 36, which is relied upon on behalf of the Opposite Party before us, it was observed-
“…..It is not prudent to say generally that no application in revision will lie against an interlocutory order”.
6. Even the Full Bench of the Allahabad High Court in Suraj Pali…(Plaintiff); v. Arya Pratinidhi Sabha…(Defendant).*, AIR 1936 All. 686 (F.B), which took the view that an order of amendment of a pleading under O. 6, r. 17 was not a ‘case decided’ was constrained to concede that amendments under other provisions of the Code, e.g, by way of substitution or addition of parties, striking off pleadings, constituted a ‘case decided’ within the meaning of sec. 115. A larger scope for admitting other interlocutory orders into the fold of sec. 115 has been opened by the later Full Benclt of the Allahabad High Court in (S) AIR 1955 All 309 (FB).
7. With respect, we are unable to see the distinction, on principle, between orders under rr. 16 and 17 of O. 6. Under r. 16, the Court has the power to ‘strikei out or amend’ ‘any matter in any pleading which may be unnecessary… which may tend to prejudice…. the fair trial of the suit’. Under R. 17 on the other hand, the Court has the power “to allow either party to….. amend his pleadings in such manner…. as may be necessary for the purpose of determining the real questions in controversy between the parties”. It is evident that the object of both the Rules is the same, namely, to secure the proper administration of justice and a fair trial of the suit, by weeding out all that is unnecessary or by admitting all that is necessary for that purpose (vide 60 Cal LJ 91 at P. 100 : (AIR 1935 Cal 102 at p. 107)). There is a ‘decision’, in either case as to what is ‘necessary’ and what is ‘unnecessary’ and the Court can make its order under either provision only after applying its mind to that question.
8. The test upon which the Allahabad High Court considers that some interlocutory orders may be revisable, though not all, is that of an ‘independent proceeding’ as has been explained by the Full Bench in Gupta & Co. v. Kirpa Ram Bros., AIR 1934 All 620 (FB), thus
“The word ‘case’ is not an exact equivalent on the word ‘suit’……….Jit the same, time, it does not include, every order that is passed by a Court during trial of a suit or proceeding pending before it. It cannot be a case unless it is a proceeding which can be regarded as something separate and in a sense independent from the suit under hearing, and the termination of that proceeding should be somewhat different from mere orders passad in the ordinary trial of the suit itself.”
In our opinion, a proceeding for amendment of a pleading under Rule 17 of Order 6 is a ‘separate and independent’ proceeding, in the same way as a proceeding for striking off a pleading or part there of under Rule 16 of the same Order. Neither proceeding is a trial of the issues involved in the suit itself but both constitute an aid for determining what the real issues between the parties are, and both proceedings terminate in an order which is separate from the termination of the suit itself.
9. In Sarajubala v. Mohini, 28 Cal WN 991 : (AIR 1925 Cal 204), this Court, in revision, set aside an order of a Subordinate Court framing additional issues which were found to be unnecessary for the/decision of the dispute between the parties. An order debarring a necessary plea or admitting an unnecessary one does not, on principle, stand on a different footing.
10. Nor is it easy to understand the distinction, from the standpoint of Sec. 115, between an order of improper refusal of a necessary party, under Order 1, Rule 10(2), and the refusal to allow a necessary amendment of a plaint or a written statement, under Order 6, Rule 17. The principle underlying Order 1, Rule 10(2) is that all those parties must be on the record whose presence before the Court may be necessary in order to enable the Court ‘effectually and completely to adjudicate upon and settle all the questions involved in the suit’. There is a consensus of opinion that an order of improper refusal to add a necessary party or of Improper addition of an unnecessary party, is revisable (Promotha Nath v. Rakhal Das, 11 Cal LJ 420; Khettramon v. Shyamachurit Kundu, ILR 21 Cal 539; Secy. of State v. Murugesa Mudaliar, AIR 1929 Mad 443; Kali v. Tulsi, ILR 4 Pat 723 : (AIR 1926 Pat 207); Phulkuffiari v. State, (S) AIR 1957 All 495 at page 504). If so, there is no apparent reason why the refusal to allow an amendment of the pleading under Order 6, Rule 17, which is necessary for the purpose of determining the real question in controversy between the parties should not be open to revision.
(d) Of course, the party who is aggrieved by an inter-locutcry order may assail it in his appeal from the decree eventually passed in the suit. But, as observed by the Division Bench in 60 Cal LJ 91 at pp. 100-101 : (AIR 1935 Cal 102 at pp. 107-108), the High Court should interfere with interlocutory orders in revision where such interference is necessary in order to avoid irreparable injury, failure of justice or multiplicity of proceedings (sea also Bir v. Raghubar*, AIR 1947 Pat 469). Thus, revision will lie against an order refusing an amendment of pleading where such amendment is necessary to determine the real controversy between the parties and where suctr amendment not being allowed and the relevant evidence not being on the record, the Appellate Court would be constrained to send back the case on remand.
(e) There is a respectable body of cases were it has been held that, even if it be assumed that the language of S. 115 of the C.P Code would not comprehend an Interlocutory order, such as an amendment of pleading, the High Court has ample power to interfere, in proper cases, in exercise of its supervisory jurisdiction under Section 107 of the Government of India Act, 1915 (cf. 37 Cal WN 1093 : (AIR 1934 Cal 102); 54 Cal WN 445 : (AIR 1950 Cal 379)). Tliis provision of the Act of 1915 has been rehabilitated in Article 227 of ‘our’ Constitution and, under that Article, it is the constitutional burden of the High Court to interfere where there has been a defect of jurisdiction or refusal to exercise jurisdiction (vide Waryam v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215); Civil Appeal No. 602 of 1961, D/- 16-1-1962 (SC), S. Wl. S. Sheik Jalal-ud-Din v. S.K Sheik Jalal-ud-Din; Dahya Lal v. Rasull Mahomed Abdul Rahim, Civil Appeal No. 516 of 1960 (SC)). There is no reference in Article 227 to final or Interlocutory orders, and the High Court can exercise this power, even ‘suo motu’ (vide Barrow v. State of U.P, AIR 1958 All 154 at p. 158; Faqirchand v. Gopichand, AIR 1962 Pun 117 at p. 120)), to keep the subordinate courts and tribunals “within the bounds of their authority, to see that they do what their duty required and that they do it in a legal manner”.
11. In the case before us, there has been a refusal to exercise his jurisdiction under Order 6, R. 17, C.P Code on the part of the learned Judge of the City Civil Court in that he did not consider whether the amendment sought by the defendant in his pleading was “necessary for the purpose of determining the real questions in controversy between the parties”. Looked at from the other standpoint, a Court has no jurisdiction to refuser a prayer for amendment without considering this question upon which his jurisdiction under Order 6, Rule 17 is founded. When this question is not determined, the resultant order becomes without jurisdiction because it cannot be upheld as an order under O. 6, R. 17 of the Code.
12. The impugned order is, accordingly, liable to be set aside whether under S. 115 or under Article 227 of the Constitution. The preliminary objection is, therefore, overruled.
13. Coming now to the merits of the application for amendment in this case, Ejectment Suit No. 1040 of 1962 was brought by the Opposite Party against the Petitioner for eviction on the allegation that he had purchased the superior interest in the premises from Sarajubala and another, and that after his purchase, defendant has attorned to him as the landlord of the premises. In the original written statement, the defendant contended that there was an agreement for sale between Sarajubala and himself and that plaintiff has purchased from Sarajubala with notice of the prior agreement with the defendant. This was, in substance, a plea that plaintiff had acquired no title to the superior interest by his purchase. Later, by an amendment, the case in the original written statement was fort Red by stating that the defendant was in possession in pursuance of the prior agreement for sale with Sarajiala. But, if the fact of attornment to the plaintiff-Opposite Party was established, this plea might not be of any avail to the defendant.
14. The present petition for further amendment of the written statement is to introduce a statement that subsequent to the filing of the written statement or the previous amendment, the defendant has come to know that Sarajubala, who claimed her title to the superior interest under a Will left by the owner of the property Dr. Amarendra Nath Mukherjee, was only a ‘residuary legatee’ under the Will and that the administration of that Will not having been completed by the date of the alleged sale to the plaintiff, plaintiff could acquire no title to the property. I The learned Judge rejected this prayer on the ground that it raised a plea inconsistent with the original written statement. Here the learned Judge was obviously wrong inasmuch as the defendant was still adhering to his original case that the plaintiff had acquired no title to the superior interest and was not, accordingly, entitled to evict, a fact which, if established, would demolish the effects of Sirs alleged attornment to the plaintiff and also explain his stand in the original statement that he himself had made an agreement for purchasing the superior interest from Sarajubala, which might otherwise preclude him from contending that Sarajubala had no sale able interest to convey to the plaintiff. It is to be noted that it is not urged by/any counter-affidavit by the Opposite Party that the statement in paras 10 to 13 of the application before us that the Petitioner had no prior knowledge of the fact that Sarajubala was a residuary legatee, is false. In paras. 10 to 13 of the application it is stated that during the pendency of the suit for eviction, defendant has brought a suit for specific performance against the Opposite Partyong with Sarajubala and that it is the defence of the Opposite Party, in that suit which led the petitioner to make searches into the records of the Probate proceedings relating to the Will of the deceased owner Dr. Amarendra Mukherjee.
15. In this state of affairs, when the proposed amendment is sought before the parties have gone into trial, and “the facts sought to be introduced are material in determining the legal effects of the plaintiff's purchase from Saraju-Sjala as well as the alleged fact of attornment by the defendant to the plaintiff, the proposed amendment was ‘necessary for the purpose of determining the real questions between the parties’, within the meaning of O. 6, ft. 17, and this aspect of the matter, as stated by us earlier, was not considered by the learned Judge at all no person can be estopped either by attornment, pleading or other conduct where the conduct constituting the estoppel was founded on a mistake of facts. Whether Sarajubala was really a residuary legatee or not is a fact which can be established at the trial only if the proposed amendment were allowed. If the trial Court proceeds with the bearing of the suit and decrees eviction without allowing the defendant to introduce this amendment, the defendant is sure to urge his complaint before the Court of appeal and is likely to obtain a remand for a determination of the question whether the estoppel relied upon by the plaintiff was, in fact, founded on a mistake of facts.
16. As stated before, the learned Judge not having adverted to the material consideration under Order 6, Rule 17, his order in question involves a refusal to exercise his jurisdiction. He has relied upon the auestion of prejudice to the plaintiff, but the learned Advocate for the Opposite Party could not refer to any other element of prejudice except that the defendant was guilty of delay in making the present petition for amendment and also that the plaintiff has already been harassed by a previous amendment. But, as has been repeatedly pointed out by the superior Courts, these are considerations for which the defendant may be asked to atone by payment of costs, but his prayer for amendment cannot be refused where the express condition for the exercise of the jurisdiction under Order 6, Rule 17 is present.
17. In the result, this Rule is made absolute on condition that the petitioner do pay to the Opposite Party in the Court below, a consolidated cost of Rs. 340/- within one month from this date. In default of this payment, this Rule will stand discharged. If this cost is paid, the Court below shall allow the petition for-amendment.
18. It is further directed that the statement in paragraph 13 of the application before us, namely, that the petitioner had no prior knowledga of the fact that Sarajubala was a residuary legatee should be clearly inserted in the proposed amendment of the written statement, giving the data of the knowledge of the defendant of this fact.
19. Let the records be sent down early.
Banerjee, J.:— I agree with the order made by my Lord.
EH/AGT/R.G.D
20. Petition allowed.