P L D 1965 Azad J & K 15 (PLP)

B. A. Farooqi for Petitioner. Sh. Abdul Haiy for Respondents. Date of hearing : 4th May 1961. The plaintiffs‑respondents brought a suit for possession of land in the Court of the Sub‑Judge, Rawalakote, against the defendant‑petitioner alleging that they were the proprietors of the land in suit which was leased out to the defendant in the year 1952 for one year on rent. The defendant had stayed over and claimed adverse possession. The defendant‑petitioner in his written statement denied the title of the plaintiff's and asserted his own title as owner and pleaded adverse possession in the alternative. The learned Sub‑Judge, found that the plaintiffs were the proprietors of the suit land and, further, that the defen dant had failed to substantiate his title by adverse possession. He accordingly by his judgment dated 30‑9‑1960 decreed the plaintiffs' suit for possession. The defendant then went up in appeal before the District Judge, Poonch, claiming in the memorandum of appeal that he was the owner of the land and that he had also established his adverse possession for over 12 years which had ripened into ownership. The appeal was filed on 25‑10‑1960. The defendant on 4‑1‑61 applied to the District Judge for permission to amend the written statement under Order VI, rule 17, C. P. C. on the ground that according to the provisions of the Land Reforms Act of 1960, a tenant cannot be ejected except under certain specified conditions; and that he should be allowed to amend para. 2 of his written statement. The learned District Judge, by his order dated 6‑1‑61 refused to allow the defendant‑petitioner to amend his written statement holding that the amendment sought to be made would change the nature of his plea and would amount to a change of front. The appeal is still undecided in the Court of the District Judge and the defendant has come up in revision against the order of the District Judge disallowing the amendment of the written statement. I thought that the order disallowing amendment of the pleadings is an inter‑locutory order which does not amount to a case decided within the meaning of section 115, C. P. C. I, therefore, called upon the learned counsel for the defendant petitioner to satisfy me that a revision was competent. The learned counsel has cited A I R 1925 Mad. 585 (2), A I R 1926 Mad. 1124, A I R 1930 Mad. 322 and A I R 1933 All.

957. It was laid down in A I R 1925 Mad. 585 (2) that the interference by the High Court would be justified in this case in view of the trouble, expense and delay that would be caused if the amendment was not carried out now. The plaintiffs had brought a suit for redemption of land which had been mortgaged by their father. Subsequently, they sought to amend the plaint by adding a claim for compensation against certain of the defendants who had alienated a portion of the mortgaged land. Amendment was disallowed and the High Court held that revision lay on the ground of trouble, expense and delay that would be caused if the amendment was not allowed. It is unfortunate that counsel for the parties have not cited any case of our own High Court though there must be a number of them on this point. I remember an unreported case and I have accordingly brought out the file from the record room. This is `Noor Hussain v. Mohkam Din' Civil Revision No. 6 of 1950, decided on 4‑10‑1950. Abdul Majid (C. J.) held in this case that interim orders were not revisable by the High Court; and that section 115, C. P. C. did not permit the revision of an inter‑locutory order though it may work hardship to the party against whom it was made. His Lordship laid down that hardship, however, grave, should not be allowed to influence the interpretation of the Statute and it must be left to the Legislature to amend the section. It was held in 1926 Mad. 1124 that where the lower Court had erred in the treatment of the matter and it had irregularly exercised its jurisdiction in refusing amendment, the error being vital to the trial of the suit, it will be corrected in revision. In this case the suit had been brought on a mortgage bond which had been taken on running accounts. Subsequently the plaintiffs sought amendment of the plaint by adding a claim in the alternative, based on the original running accounts if the mortgage bond was found not binding on the defendants. Amendment was refused. It was held by the High Court that the cause of action was not changed by the amendment sought and, therefore, irregular exercise of the discretion should be corrected in the revision. A I R 1930 Mad. 322 was a case where amendment had been allowed by the lower Court but the High Court held that an amendment which allows the plaintiff to set up a new case in contradiction to that set up in the plaint should not be allowed and the High Court will interfere in revision where such leave should not have been granted. The facts in A I R 1933 All. 957 were that the plaintiff had brought a suit for rendition of accounts alleging that the defendant was his agent, the defendant pleaded that he had cleared up the accounts with the brothers of the plaintiff who were partners with the plaintiff in the business. The plaintiff sought to add his brothers as defendants, the permission was dis allowed on the ground of multifariousness. The plaintiff then went up in revision and the High Court held that there was no multifariousness; and that the High Court was competent to interfere in the revision. On the other hand there are some decisions of the Allahabad, Oudh and Sind Courts which laid down that an order allowing or disallowing the amendment of the pleading does not amount to a case decided within the meaning of section 115, C. P. C. and that no revision is competent against such an interlocutory order. It was laid down in 1934 All. 785, a Division Bench case by Sulaiman (C. J.) and Mukherji (J) that when a Court grants an application for a certain amendment, it cannot be said that a case has been decided within the meaning of section 115, C. P. C. and that the revision is not maintainable. It was, further, laid down in this ruling that an order amending a plaint is only one of the numerous orders that a Court must pass before it finally decides a case by passing a decree; therefore, no revision lies over such an order. It cannot be said in respect of every order that may be passed that it concludes a definite stage in the case; otherwise an application refusing to adjourn the hearing of the suit may be made the subject‑matter of a revision. Then there is a Full Bench case reported as A I R 1936 All. 686, Sulaiman (C. J.) delivering the judgment of the F. B. with which Bennett and Bajpai (JJ) agreed, laid down that no revision lies from an order refusing to allow an amendment of a pleading. Cases where the amendment comes under some other order of the Court, e.g., the additions or substitu tions of the parties or the striking off of a pleading may amount to a case decided, but an order passed purely under Order VI, rule 17 does not. This F. B. case has also been subsequently followed in A I R 1948 All. 221, which is also a D. B. case. It was held in A I R 1941 Oudh 87 by, Thomas (C. J.) and Ghulam Hassan (J) that an application for leave to amend was not a case and, therefore, no revision could lie against an order refusing to grant leave to amend. It was laid down by the D. B. that no revision lies from the order under Order VI, rule 17 allowing or disallowing amendment of a pleading. There is another Single Bench case of the Oudh High Court reported as A I R 1941, 623, in which Agarwal (J) laid down that an order allowing amendment of a plaint being an interlocutory order is not open to a revision. There is a D. B. case of the Sind Court reported as A I R 1946 Sind 36 in which Davis (C. J.) and Thadani (J) held that it is impossible to lay down any exhaustive and complete definition of the word `case'. The word `case' is certainly not an exact equivalent of the word `suit'. It is something wider. It may not at the same time, be so wide as to include every order that is passed by a Court during the trial of a suit or proceedings pending before it. It is not correct to lay down as a general rule that no application for revision will lie against any inter locutory order. Each kind of interlocutory order must be looked at from the point of view as to whether it is a `case decided' within the meaning of section 115, C. P. C. or not. An order refusing the application to amend a written statement cannot be a `case decided' within the meaning of section 115, C. P. C. The correct approach to my mind while deciding whether a revision lies or not from an order allowing or disallowing amendment of a pleading, is to see whether the order amounts to a `case decided' within the meaning of section 115, C. P. C. In p9ne of the cases cited by the learned counsel for the petitioner it was considered whether the order made under Order VI, rule 17 amounted to a case decided or not. I agree with Abdul Majid (C. J.) in saying that hardship however grave should not be allowed to influence the interpretation of the statute. I do not agree that there would have been any considerable trouble, expense or delay if the order of the learned District Judge disallowing amendment of the pleadings were not revised by this Court. Whatever delay has been caused is due to the defendant carrying his case from the lower appellate Court to this Court. If no revision had been filed perhaps the appeal would have been decided by the lower appellate Court and the case would have been before this Court in second appeal by this time. I hold that an order under Order VI, rule 17, C. P. C. allowing or disallowing the amendment of a pleading is not a `case decided' within the A meaning of section 115, C. P. C. and as such is not revisable by the High Court. If the appeal before the District Judge is decided against the defendant‑petitioner, he can agitate before the High Court in second appeal, the legal question whether amendment was rightly or wrongly refused. I, therefore, refrain from expressing any opinion on the merits of the case disallowing the amendment of the pleading. The revision petition is dismissed. The costs of this revision petition shall be costs in the case. K. B. A. Petition dismissed.