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Smart Summary

Factual and Procedural Background

This opinion arises from an application under Section 115 of the Civil Procedure Code (C.P. Code) challenging an order by the learned Judge of the City Civil Court, 7th Bench, dated September 17, 1953, which refused a prayer for amendment of the written statement in an ejectment suit. The ejectment suit (No. 1040 of 1962) was brought by the Opposite Party against the Petitioner for eviction, based on the claim that the Opposite Party had purchased the superior interest in the premises and that the defendant had attorned to him as landlord. The defendant's original written statement denied the plaintiff's title, asserting a prior agreement for sale with Sarajubala. A previous amendment fortified this plea by stating possession pursuant to that agreement. The present petition sought further amendment to introduce facts about Sarajubala's status as a residuary legatee under a Will, which allegedly prevented the plaintiff from acquiring title. The learned Judge refused this amendment, holding it inconsistent with the original statement. This refusal was challenged before the High Court under Section 115 of the C.P. Code and Article 227 of the Constitution.

Legal Issues Presented

  1. Whether an order refusing amendment of pleadings under Order 6, Rule 17 of the C.P. Code constitutes a “case decided” within the meaning of Section 115 of the Code, thereby making it revisable by the High Court.
  2. Whether the learned Judge erred in refusing to exercise jurisdiction by not considering if the amendment sought was necessary for determining the real questions in controversy between the parties.
  3. Whether the refusal to allow the proposed amendment was justified on grounds of prejudice or delay.
  4. The scope of the High Court's supervisory jurisdiction under Article 227 of the Constitution in relation to interlocutory orders such as amendment of pleadings.

Arguments of the Parties

Opposite Party's Arguments

  • Reliance on decisions of Allahabad, Lahore, and Sind High Courts holding that orders under Order 6, Rule 17 are not revisable under Section 115 as they do not dispose of the suit or the parties’ rights.
  • Assertion that the amendment sought was inconsistent with the original written statement.
  • Claimed prejudice due to delay in seeking the amendment and prior harassment caused by an earlier amendment.

Petitioner's Arguments

  • The refusal to allow amendment was without jurisdiction as the learned Judge failed to consider whether the amendment was necessary for determining the real controversy.
  • The amendment sought introduced material facts relevant to the plaintiff’s title and the alleged attornment, which could affect the outcome of the suit.
  • There was no dispute that the petitioner had no prior knowledge of Sarajubala’s status as residuary legatee, making the amendment necessary and not inconsistent with the original plea.
  • Delay and harassment are considerations for costs but do not justify refusal where the amendment is necessary for justice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dassumal v. Kundanmal, AIR 1946 Sind 36 Order 6, Rule 17 orders not revisable under Section 115 as no 'case decided'. Not accepted as a rigid rule; interlocutory orders can be revisable.
Buddhu Lal v. Mewa Ram, AIR 1921 All 1 (FB) ‘Case decided’ means decision of the claim in a suit, not part of it. Principle acknowledged but not rigidly applied.
Ramrichpal Singh v. Dayanand Sarup, AIR 1955 All 309 (FB) Some interlocutory orders held revisable under Section 115. Supports revisability of interlocutory orders.
Lokenath v. Abani Nath, AIR 1934 Cal 102 Revision admitted for interlocutory orders including amendments. Calcutta High Court view preferred by this Court.
Indu-bala v. Lakshmi Narayan, AIR 1935 Cal 102 Revision allowed for interlocutory amendments. Supports revisability of amendment refusals.
Abdul Rahim v. Abdul Jabbar, AIR 1950 Cal 379 Revision jurisdiction over interlocutory orders. Supports broader interpretation of ‘case decided’.
Radha Mohan v. Abbas Ali, AIR 1931 All 294 (FB) ‘Case’ broader than ‘suit’ or appeal; includes independent proceedings. Supports wide interpretation of ‘case’ under Section 115.
Abdul Rahman v. D.K Cassim and Sons, AIR 1933 PC 58 ‘Final order’ defined as one disposing rights though not a decree. Interlocutory orders may be ‘decisions’ under Section 115.
Kariya v. Tirukkaivelu, AIR 1925 Mad 585 Order allowing or refusing amendment is ‘case decided’. Supports revisability of amendment orders.
Narayan v. Sheshrao, AIR 1948 Nag 258 (FB) Amendment orders fall within ‘case decided’ for revision. Supports revisability of amendment orders.
Shantilal Chunilai v. Shantilal Fulchand, AIR 1963 Guj 195 Interlocutory amendment orders are revisable. Supports revisability under Section 115.
Suraj Pali v. Arya Pratinidhi Sabha, AIR 1936 All 686 (FB) Order of amendment under O.6, r.17 not a ‘case decided’; but other amendments may be. Qualified view; later Full Bench expanded revisability.
Gupta & Co. v. Kirpa Ram Bros., AIR 1934 All 620 (FB) ‘Case’ means independent proceeding distinct from trial orders. Amendment under Rule 17 is an independent proceeding.
Sarajubala v. Mohini, AIR 1925 Cal 204 Revision can set aside unnecessary additional issues in interlocutory orders. Supports revisability of interlocutory orders affecting trial.
Promotha Nath v. Rakhal Das, 11 Cal LJ 420 Improper refusal to add necessary party is revisable. Analogous to amendment refusal under O.6, r.17.
Phulkuffiari v. State, AIR 1957 All 495 Revisability of orders refusing necessary parties. Supports revisability of amendment refusals.
Bir v. Raghubar, AIR 1947 Pat 469 High Court should interfere in revision to avoid irreparable injury or multiplicity of proceedings. Supports intervention in interlocutory orders.
Waryam v. Amarnath, AIR 1954 SC 215 High Court’s supervisory jurisdiction under Article 227 includes interlocutory orders. Supports High Court’s power to interfere beyond Section 115.
Barrow v. State of U.P, AIR 1958 All 154 High Court can exercise supervisory jurisdiction suo motu. Supports wide supervisory power under Article 227.
Faqirchand v. Gopichand, AIR 1962 Pun 117 Supervisory jurisdiction to keep courts within bounds of authority. Supports intervention in interlocutory orders.

Court's Reasoning and Analysis

The Court began by addressing the preliminary objection that revision under Section 115 does not lie against orders refusing amendments of pleadings, as such orders do not constitute a ‘case decided’. The Court examined the meaning of ‘case decided’ and noted that the term ‘case’ is not defined in the Code but is understood more broadly than ‘suit’ or ‘appeal’. It includes independent proceedings, not necessarily the final disposal of the suit. The Court reviewed conflicting High Court precedents and judicial controversy on whether interlocutory orders, including amendment refusals, are revisable.

Relying on the Calcutta High Court’s approach and several other High Court decisions, the Court held that an application for amendment under Order 6, Rule 17 is a separate and independent proceeding and thus falls within the scope of ‘case decided’ under Section 115. The Court emphasized that the learned Judge’s refusal to consider whether the amendment was necessary for determining the real questions in controversy constituted a failure to exercise jurisdiction, rendering the order invalid.

The Court further reasoned that refusal to allow a necessary amendment under Order 6, Rule 17 is analogous to refusal to add a necessary party under Order 1, Rule 10(2), which is revisable. The Court noted that considerations such as delay or harassment may justify costs but do not justify refusal of amendment where the condition of necessity for determining the real controversy is met.

Finally, the Court observed that even if Section 115 did not cover such interlocutory orders, the High Court’s supervisory jurisdiction under Article 227 of the Constitution empowers it to interfere where there is a defect or refusal to exercise jurisdiction.

Holding and Implications

The Court allowed the petition for revision, overruled the preliminary objection, and set aside the order refusing amendment of the written statement. The Court directed that the amendment sought be allowed by the trial Court on payment of consolidated costs of Rs. 340/- by the petitioner to the Opposite Party within one month, failing which the Rule would stand discharged.

The Court also directed that the amendment must clearly state the petitioner’s lack of prior knowledge regarding Sarajubala’s status as residuary legatee, with relevant dates.

The direct effect of this decision is to permit the defendant to amend the written statement to introduce material facts necessary for determining the real controversy in the suit. The Court’s ruling affirms the revisability of interlocutory orders refusing amendments under Section 115 of the C.P. Code and underscores the High Court’s supervisory jurisdiction under Article 227. No new precedent beyond the application of existing principles was established, but the decision clarifies the scope of revision against interlocutory amendment orders.

    Sukumar Chatterjee v. Kiran Chandra Mitter Opposite Party.

    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.

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    Comments

    Sukumar Chatterjee v. Kiran Chandra Mitter Opposite Party.
    (Feb 26, 1964)