P L D 1955 Lahore 26 (PLP)

S. A. RAHMAN, C. J.‑The facts leading up to this revis ion petition are as follows. One, Ilahia, died leaving certain agricultural property and was succeeded by Mst. Jawahri, widow of his pre‑deceased son, Sahib Din. This lady also died on the 14th of February, 1952, and the revenue authorities then sanctioned the mutation of the lands left by Ilahia, 1/4th in favour of respondent Fazal Ilahi, brother of Mst. Jawahri, and 3/4ths in favour of Gulab and Sultan Ali petitioners. The mutation was sanctioned on the 22nd of May, 1952. Gulab and Sultan Ali, then brought the suit, out of which the present peti tion has arisen, for possession of the 1/4th share of the land that had been allotted by the revenue authorities to. Fazal Ilahi. They claimed to be heirs of Ilahia under custom, and alleged, that Mst. Jawahri had occupied the land merely in lieu of maintenance, in her capacity as widow of Ilahia's predeceased son arid that she had no ownership rights in the property. It was pointed out in the plaint that the revenue authorities evidently acted on the wrong assumption that the last male owner was Sahib Din, rather than Ilahia. In his written statement filed on the 8th of January, 1954, Fazal Ilahi took up the position that Mst. Jawahri had inherited the land in question as an heir of Sahib Din, who was the last male holder and not merely in lieu of her right of maintenance. In the alternative it was pleaded chat if it was held established that Sahib Din, had died in the lifetime of his father, Ilahia, even then Mst. Jawahri, must be deemed to have succeeded by virtue of her right of representation of her deceased husband, under custom. It was, therefore, asserted that Mst. Jawahri was the rightful owner of 1/4th share of the property which had now been mutated in favour of the defendant by the revenue authorities correctly. On the 8th of January, 1954, itself, issues were framed by the learned trial judge, reading as follows :‑ (1) Was Ilahia the last full‑owner of the disputed land ? O. P. (2) Who were the persons entitled to the disputed land on the death of Mst. Jawahri and in what shares ? On parties. (3) Relief. A date was given for the recording of evidence. Before that date arrived, however, on the 8th of February, 1954, Fazal Ilahi put in a petition in the Trial Court praying for permission to amend his written statement. He alleged that at the time when he put in his previous written statement, he was no; aware of the correct dates of deaths of Ilahia, and Sahib Din. or of the deaths of Sardara and Mardan, sons of Sahib Din He was, therefore, misled into putting in a wrong written statement to the effect that Mst. Jawabri inherited the land as the widow of her husband Sahib Din. He explained that he had now obtained copies of the relevant death entries and had discovered that though Sahib Din had died in the lifetime of his father, Ilahia, yet Ilahia's grandsons, Sardara and Mardan, were alive at the death of Ilahia and were his real heirs. It was sought to be made out that Mst. Jawahri, succeeded to the pro perty as the mother of her children, Sardara and Mardan, who were the last male‑holders. In the alternative, it was sought to be pleaded that Mst. Jawahri took possession of the pro perty without any semblance of right, on the death of Ilahia, and acquired a title by prescription over it. The learned trial judge allowed Fazal Ilahi to put in another written .state ment embodying these pleas in supersession of his previous written statement. The plaintiffs have come up in revision against that order. Mr. Sirajud Din Ahmad, on behalf of the respondent has raised a preliminary objection that the revision was not com petent: He contended that the learned Civil judge had merely exercised his discretion in allowing the amendment of the written pleas, and as there was no question of excess or want of jurisdiction, the revisionary jurisdiction of this Court was not attracted. Mr. Said Akbar on behalf of the petitioners has contested the position adopted by Mr. Sirajud Din Ahmad. He concedes that the matter was one within the discretion of the lower Court, but he asserts that in the exercise of ‑that discretion, a material irregularity had been committed by the learned trial judge calling for correction by this Court in revision. The order challenged in revision is, no doubt an interlocu tory order. It amounts, however, in my opinion, to a "case decided" within the meaning of that expression as expounded in Full Bench judgment of this Court reported as Bibi Gurdevi v. Mohammad Bakhsh. (A I R 1943 Lah. 65.). It was pointed out in that .authority that the word "case" occurring in section 115, C. P. C., does not always mean the whole suit. Its meaning is wide enough to include a decision on any substantial 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 a purely formal and incidental order would be a "case decided" within' the meaning of section 115, A C. P. C., but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result ‑in such gross injustice or irreparable injury as cannot be re medied otherwise than by the ‑exercise of the extraordinary jurisdiction of the High Court at that stage. With this statement of the law I respectfully agree. The order in question in this case falls within the rule enunciated in the F. B. judgment. The question that falls for determination is whether the learned trial judge in allowing this amendment was guilty of a material irregularity or illegality in the exercise of his jurisdiction or not. In my opinion, the question should be answered in the affirmative. Mr. Sirajud Din Ahmad has invited my attention to an authority of the Privy Council reported as N. S. henkatagiri Ayyangar v. The Hindu Religious Endowments Board, Madras (AIR1949P.C.156=PLD1949PC26.), and argued that no case had been made out for interference in revision. According to this authority, section 115, C. P. C.,, empoweres the High Court to satisfy itself upon three matters : (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction ; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial, which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. Their Lordships pointed out that there can be no justification whatsoever for the .view that section 115 (c), Civil Procedure Code, was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. In my humble judg ment, however, the present case falls within the ambit of the test laid down by Their Lordshifs of the Privy Council in the cited case. It has been conceded ever, by Mr. Siraj‑ud‑Din Ahmad, that the plea allowed to be raised in the amended written statement to the effect that Mst. Jawahri had entered into possession of the land in question without any semblance of right and had acquired an adverse title by prescription over it, was completely inconsistent with the position adopted by the defendant in the first instance and would indeed dis place the whole case for the plaintiffs to their prejudice. Mr. Sirajad Din Ahmad was fair enough to admit that this part of the amendment could not have been allowed. In my opinion the learned Civil judge acted with material irregularity in allowing this part of the amendment. There is authority in support of this view. Reference in this connection may be made to Ibramsa Rowther v. Muhammad Esuf Rowther (A I R 1930 Mad. 322‑-S. B.), Inaganti 1Jenkatrama Rao v. Verikatalingama Nayanin Bahadur Varu (A I R 1922 Mad. 49), and Shri Narain v. Kishan Lal (A I R 1952 Rajasthan 15.). "I consider, therefore, that the revision petition is competent. As for the propriety or otherwise of the amendment in respect of the plea of adverse possession by Mst. Jawahsi, there can be no two opinions. An amendment which would displace the plaintiffs' suit or would introduce a new and wholly inconsistent case must not be allowed despite the fact that the powers of the Trial Court to allow amendment at any stage are fairly wide. This proposition was affirmed in two Division Bench judgments of this Court in Fazal Nur v. Bibi Rani (A I R 1930 Lah. 278 (2).) and Ghulam Muhammad v. Mehta Chandras (A I R 1927 Lah. 771). These decisions were given in appeals but the principle laid down therein that one distinct cause of action cannot be substituted for another by an amendment of the written pleas is of general application. The rule is that any amendment must be such as is either raised in the pleadings or is consistent with the case as originally laid. Their Lordships of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (A I R 1922 P. C. 249) expressed themselves as follows :‑ "All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but none the less no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit." The learned Civil Judge, therefore, clearly misdirected him self in allowing Fazal Ilahi to raise the plea of adverse posses sion by Mst. Jawahri. ' Mr. Said Akbar has also taken exception to the alterna tive plea allowed to be raised by Fazal Ilahi to the effect that the sons of Sahib Din, named Sardara and Mardan, were alive when their grandfather Ilahia died and that they were the last male‑holders of the property. It seems to me, however, that this particular amendment was not quite inconsistent with the previous position adopted by Fazal Ilahi. His main contention was that Ilahia was not the last male‑holder of the property. The issues framed in the case were also such as would cover this new plea. The defendant may very well have been confused by successive deaths in the family so that he was not able to appreciate at the time of the first written statement as to which of the descendants of Ilahia was the last male‑owner, though he was clear in denying that title to Ilahia. In respect of the particular amendment, I am not disposed to agree with Mr. Said Akbar that it implies such a change of front on the part of Fazal Ilahi as to disentitle him to raise it. The result of the above discussion is that the revision is partly allowed so as to delete the new plea raised in the amended written statement concerning the alleged adverse possession of the land in question by Mst. Jawahri, but the alternative plea with regard to the allegation that Sardara and M4rdan were the last male‑holders of the property would be allowed to stand. In view of the divided success of the parties, I leave them to. bear their own costs in this Court. A. H. Revision partly allowed.