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Prem Bakshi And Others v. Dharam Dev And Others
Factual and Procedural Background
The dispute concerns agricultural land that originally belonged to Durga Dass. He had mortgaged the property to Sunder Dass and Udhey Ram. The appellants and Respondents 2–5 are legal heirs of these mortgagees. After Durga Dass died, Respondent 1 (Dharam Dev) had his name mutated in the revenue records. The appellants then filed a suit in 1999 seeking (i) a declaration that they and Respondents 2–5 were joint owners because the statutory period for redemption had lapsed, and (ii) a permanent injunction restraining Respondent 1 from alienating the land.
During the suit the appellants moved an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) to amend the plaint. They asserted that they had discovered, from another civil suit filed by Respondent 1, that Durga Dass had actually sold the land to Sunder Dass and Udhey Ram in satisfaction of the mortgage, and that a 1943 pre-emption suit had ultimately failed because the decretal amount was never paid. The trial court allowed the amendment, but the High Court of Punjab and Haryana set aside that order in revision, holding that the amendment amounted to an attack on a 1943 decree and was time-barred. The appellants obtained special-leave to appeal from the Supreme Court.
Legal Issues Presented
- Whether the High Court, in exercise of its revisional jurisdiction under Section 115 CPC, could validly set aside the trial court’s interlocutory order allowing amendment of the plaint.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497; (1964) 4 SCR 409 | The term “any case which has been decided” in Section 115 CPC includes interlocutory orders; the word “case” is of broad import. | Relied upon to confirm that an interlocutory order such as one permitting amendment is, in principle, amenable to revision; nevertheless, interference is restricted by the proviso added in 1976. |
Court's Reasoning and Analysis
The Court first recited Section 115 CPC, emphasising the 1976 amendment that added a proviso restricting revisional interference with interlocutory orders. Even though an interlocutory order is a “case decided” (as clarified in Major S.S. Khanna), the High Court may interfere only if the order:
- (a) would have finally disposed of the suit had it been made in favour of the revision-petitioner, or
- (b) would occasion a failure of justice or cause irreparable injury if allowed to stand.
Applying clause (a), the Supreme Court observed that permitting amendment of pleadings does not finally dispose of the suit; the litigation continues. Accordingly, clause (a) was inapplicable.
Turning to clause (b), the Court reasoned that amendment of pleadings merely gives advance notice of a party’s case and does not decide any substantive issue. It is “almost inconceivable” that such an amendment could cause failure of justice or irreparable injury; refusal to allow an amendment is more likely to create injustice than its allowance. Moreover, Respondent 1 would still have an opportunity to file a written statement, present defences, and appeal if necessary. Therefore, clause (b) was also not satisfied.
Because neither limb of the proviso was met, the High Court lacked jurisdiction to interfere under Section 115 CPC. Its order was consequently erroneous in law.
Holding and Implications
Holding: The appeal is allowed; the High Court’s order is set aside and the trial court’s order permitting amendment of the plaint is restored. Each party shall bear its own costs.
Implications: The decision re-affirms the narrow scope of the High Court’s revisional powers under Section 115 CPC after the 1976 amendment. Specifically, interlocutory orders granting amendments to pleadings will rarely qualify under the proviso’s clauses (a) or (b). The ruling directly affects only the parties by reinstating the amendment, and it does not lay down a new legal test but reinforces existing statutory limitations on revision.
S.N Phukan, J.— This appeal by special leave is directed against the order of the High Court of Punjab and 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 Respondents 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, Respondent 1-defendant Dharam Dev got his name mutated in the revenue records, the present suit was filed for declaration of joint ownership of the land of the appellants and Respondents 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 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 Respondent 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, the suit would stand dismissed. The present Respondent 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 wanted 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.
2. 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:
“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.”
3. 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 the 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.
4. In Major S.S Khanna v. 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 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 the present order being an interlocutory order is revisable under Section 115, but for exercising powers under this section by the High Court, the order must satisfy one of the conditions mentioned in clauses (a) and (b) of the proviso.
5. 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 disposed 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 with 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).
6. Now the question is whether the order in question has caused failure of justice or irreparable injury to Respondent 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.
7. From the facts extracted above it would show that the appellants only wanted to bring to the notice of the court the subsequent facts and after amendment of the plaint, Respondent 1 would get an opportunity to file written statement and he would be able to raise all his defence. Ultimately if the suit is decided against Respondent 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 Respondent 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).
8. 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.
9. 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.
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