Arun Kumar Saini v. Ram Dulari — 1993 DIGILAW 427 (RAJ)

Honble AGRAWAL, C. J. — These two revisions have been filed by Arun Kumar Saini against the judgment of the District Judge, Jaipur District, Jaipur. (2). For deciding these two revisions, detailed facts are not required. It would suffice to state that Arun Kumar Saini filed suit No. 91/87 against the defen-dant-Smt. Ram Dulari and others for declaration and permanent injunction with averments inter- alia that he wanted to apply for two mining leases of marble but the defendant No. 2 Govind Sahai, who was the close friend of the father of the plaintiff, asked that since there were number of applications for mining lease, it would not be possible to allot two mines in his name, therefore, he could make one application in his name and the other in the name of Smt. Ram Dulari, wife of Govind Sahai. Govind Sahai represented to the plaintiff that in case lease was granted in the name of his wife, the same would be transferred later on in favour of the plaintiff. Smt. Ram Diary undertook to execute a power of attorney in favour of the plaintiff conferring upon him all the rights necessary for mining operations. This power of attorney was for limited period till a formal lease was not executed by the Department. All the expenses were incurred by the plaintiff for two leases; one in his favour and the other in favour of Smt. Ram Diary. Plaintiff claimed that he was the owner of both of them. (3) In the background of these facts, the plaintiff claimed declaration that the power of attorney executed by the defendant No. 1 in his favour was irrevocable and defendant No. 1 had no right to revoke the said power of attorney. The plaintiff also prayed that the dependants be restrained from interfering with his possession in the said marble mines. He claimed injunction restraining the defendants from transferring mine lease in any manner to other party. (4) The defendants Nos. 1 and 2 did not file any written statement. They moved an application dated 31.3.1989 before the trial court under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. It was alleged by the defendants Nos. (4) The defendants Nos. 1 and 2 did not file any written statement. They moved an application dated 31.3.1989 before the trial court under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. It was alleged by the defendants Nos. 1 and 2 that on coming into force of Benami Transactions (Prohibitions) Act, 1988, the present suit could not continue and since the said Act is retrospective, the plaint was liable to be rejected. (5) The plaintiff filed a reply to the said application under Order 7 Rule 11 C.P.C. on 26.5.1989. He also submitted an application under Order 6 Rule 17 C.P.C. seeking leave of the Court for amendment of the plaint. The plaintiff wanted new paras to be inserted. The reply to the application was filed by the defendants Nos. 1 and 2. (6) The learned District Judge took up the two applications together. In ¦ the last paragraph of the order dated 3.4.1991, he remarked that it was not necessary in view of what he had said while disposing of application under Order 7 Rule 11 C.P.C. to pass any order on the application under Order 6 Rule 17 C.P.C. As a result, the plaint of the plaintiff stood rejected on 3.4.1991. The application under Order 6 Rule 17 C.P.C. was also dismissed. The plaintiff has filed two revisions; one S.B.C. Rev. No. 597/91 against the order rejecting the plaint and the other S.B. C. Rev. No. 598/91 against the order refusing to dispose of the application made under Order 6 Rule 17 C.P.C. (7) In have heard learned counsel for the parties. Mr. Agrawal, learned counsel for the respondents raise a preliminary objection for the maintainability of the revision No. 597/91 which had been preferred against the rejection of the plaint under Order 7 Rule 11 C.P.C. He contended that the rejection of the plaint amounts to a decree under section 2(2) of the Code of Civil Procedure. Hence, the order passed on the same was appealable under section 96 of the Code of Civil Procedure. He contended that the revision filed by the plaintiff against the order rejecting the plaint was incompetent and liable to be dismissed. (8) Section 2(2) of the Code of Civil Procedure defines decree and lays down that it would include the rejection of a plaint. He contended that the revision filed by the plaintiff against the order rejecting the plaint was incompetent and liable to be dismissed. (8) Section 2(2) of the Code of Civil Procedure defines decree and lays down that it would include the rejection of a plaint. This amendment was brought about by the C.P.C. amendment in 1976. Before that, there was a difference of opinion amongst the various High Courts as to whether rejection amounted to a decree or not. It appears that in order to end the controversy, the Parliament made a provision clarifying the doubt. The preliminary objection taken by Mr. Agrawal has merit and the plaintiff ought to have filed an appeal instead of revision. (9) Section 115 of the Code of Civil Procedure provides that a revision will lie only when no appeal lies thereto. The expression thereto in the context of the present facts would mean High Court. As an appeal lay, the revision was incompetent and the plaintiff should have challenged the order by means of an appeal. (10) Mr. Lodha, learned counsel for the petitioner made a prayer for conversion of the revision into an appeal. This was objected to by the counsel for the respondents by asserting that he who is in default would not be entitled to the discretion of the Court permitting conversion. According to him, this was a deliberate action and that for the same, no conversion could be granted. (11) I am not prepared to hold that not filing of an appeal in the facts and circumstances of the present case was deliberate. It was incidental slip or inadvertant. In an appeal, the High Court has much wider jurisdiction than what it has in revision under section 115 of the Code of Civil Procedure. A revision lies only on the question of jurisdiction whereas first appeal lies on all points of facts and law. The mistake was inadvertance and it is in the ends of justice that the same be ignored by permitting the petitioner to convert the revision into appeal. About court fees, counsel for the parties are agreed that the two revisions be heard on merits and Mr. Lodha, learned counsel for the petitioner be given time for payment of court fees. The mistake was inadvertance and it is in the ends of justice that the same be ignored by permitting the petitioner to convert the revision into appeal. About court fees, counsel for the parties are agreed that the two revisions be heard on merits and Mr. Lodha, learned counsel for the petitioner be given time for payment of court fees. (12) The learned District Judge did not decide the application made under Order 6 Rule 17 C.P.C. thinking that as the plaint was going to be rejected by him under Order 7 Rule 11 C.P.C, it was not necessary to deal with the application under Order 6 Rule 17 C.P.C. This reasoning of the learned Distt. Judge is incorrect and wrong. If the amendment of the plaint would have been allowed, the defects which were pointed out by the plaintiff for rejection of the plaint might have been met. The learned Distt. Judge infact has given no reason as to why did he not allow the amendment application. He simply made an observation towards the end of the impugned judgment that the application needed no decision. That was without appreciating the real position. (13) The amendment under Order 6 Rule 17 C.P.C. could be allowed at any stage of the proceedings. The amendment in this case was made before the hearing of the application under Order 7 Rule 11 C.P.C. The court below should have considered whether interest of justice required the allowing of that application. (14) The plaintiff applied for amendment of the plaint to over- come the difficulties which came into existence on account of Section 4 of the Benami Transactions (Prohibition) Act, 1988. The learned counsel for the defendants urged that the amendment sought was after thought and, as such, malafide. On the facts and circumstances of the present case at this stage, it is not possible to hold it to be malafide. To bring the plaint of suit in order on account of the new Act could not be considered necessarily in all cases to be malafide. Moreover, the learned Distt. Judge has not given any reason for rejecting the amendment application. He held that as the plaint itself was going to be rejected under Order 7 Rule 11 C.P.C, there was no need to consider the amendment application. This view of the learned Distt. Judge was wrong. Moreover, the learned Distt. Judge has not given any reason for rejecting the amendment application. He held that as the plaint itself was going to be rejected under Order 7 Rule 11 C.P.C, there was no need to consider the amendment application. This view of the learned Distt. Judge was wrong. The Amendment could be rejected on the grounds that the same was inconsistent, malafide or changed the nature of the suit. These considerations had to be taken into account by the learned Distt. Judge while dealing with amendment application. As a matter of law, if a party can be compensated by cost, no prejudice should be done to him by the amendment. Merely allowing the amendment at this stage of course will not determine the rights of the parties or the controversies arising in the suit. That would be a matter coming up for consideration at a later stage. However, since I am remanding the amendment application as well as the application filed tinder Order 7 Rule 11 C.P.C back to the court below for afresh decision, it is not necessary for me to make any observation which may prejudice either of the parties. The order of the learned Distt. Judge rejecting the plaint without considering the application under Order 6 Rule 17 C.P.C would be liable to be set-aside. (15) So far as the Order 7 Rule 11 C.P.C is concerned, counsel for the defendants tried to bring his case within clauses (a) to (d) of the said provision. The order of the learned Distt. Judge rejecting the plaint without considering the application under Order 6 Rule 17 C.P.C would be liable to be set-aside. (15) So far as the Order 7 Rule 11 C.P.C is concerned, counsel for the defendants tried to bring his case within clauses (a) to (d) of the said provision. Clauses (a)to (d) of Order 7 Rule 11 C.P.C. read as under:- "R. 11 Rejection of plaint-The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law." (16) He submitted that the question of rejection of plaint could be decided on its mere perusal and even an application by the defendant was not required. As the application has been filed by the defendants for rejection of the plaint, this question does not arise. (17) For the reasons given above, both the revisions succeed and are allowed and the amendment application as well as the application made under Order 7 Rule 11 C.P.C. are sent down to the court below for fresh decision. The court below would dispose of applications after hearing both the parties and permitting them to file such objections and evidence as they may like. There shall be no order as to costs. (18) Mr. R.M. Lodha would convert the revision into appeal within two weeks and make payment of court fee on the converted memorandum of appeal within one week thereafter.