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2002 DIGILAW 1550 (RAJ)

Prahalad Singh v. Padma Jain

2002-09-06

B.S.CHAUHAN

body2002
JUDGMENT 1. - This revision petition has been filed against the impugned order dated 4.5.2001 by which the application under Order 6 Rule 17 of the Code of Civil Procedure (for short 'the Code') of the non-petitioner has been allowed. 2. Learned counsel for the non-petitioner has raised the preliminary objection regarding the maintainability of the revision petition contending that it is merely an interlocutory order and order passed on such an application does not decide the issue. Therefore, the revision petition is not maintainable. In support of his submission, he has placed reliance upon the judgment of the Hon'ble Supreme Court in Prem Bakshi and ors. v. Dharam Dev and ors., (2002) 2 SCC 2 wherein the Hon'ble Supreme Court has held that amendment of the pleadings would not amount to decision on the Issue involved. They only would serve advance notice to the either side as to the plea, which a party might take up. 3. Shri Hedau has placed reliance upon the judgment of the Hon'ble Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 ; Santosh and anr. v. Archana Guha and ors., (1994) 2 SCC 420 ; V.C. Shukla v. State through CBI, AIR 1980 SC 962 ; Rajendra Kumar Sitaram Pandey v. Uttam, (1999) 3 3CC 134 ; K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 and Amar Nath v. State of Harayana, (1977) 4 SCC 137 wherein the Hon'ble Supreme Court has categorically held that certain orders may be interlocutory in form but are conclusive In substance. Such orders may also include the issue of jurisdiction of the court. Interim order may be an order which may be merged Into final order and lost its sanctity. In Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and ors., (2001) 7 SCC 401 , the Hon'ble Supreme court has held as under : "Whether an order is interlocutory or not, Minot be decided by merely looking at the order of merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decision in this : if the contention of the petitioner who moves the superior court in revisions, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate ? The safe test laid down by this Court through a series of decision in this : if the contention of the petitioner who moves the superior court in revisions, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate ? It they would, then the order is not interlocutory in spite of the fact that It was passed during any interlocutory stage." 4. It was submitted by Shri Hedau that once the order on the application under Order 6 Rule 17 of the Code attains finality once is allowed and is not reversed by the revisional court for the reason that it will have no bearing at the time of final hearing or nothing would turn on such an application at the time of final decision of the suit. 5. Be that as it may, as the issue is still to be resolved, as by amendment whether merely a description has been changed Is still doubtful and Shri Hedau is not in a position to make statement as by allowing this amendment merely description of the property Is effected or the location had been effected. 6. In case merely a description is changed, It will not materially effect the result of the proceedings for the reasons that Section 95 of the Evidence Act will come to rescue of a party. However, if the location itself is changed, the party should be at liberty to agitate the issue at the time of final hearing or approach the appellate or revisional court against the final order. 7. At this stage, Shri Hedau, learned counsel for the petitioner, prays and permitted to withdraw this revision petition with the liberty to agitate this plea before the appropriate forum at appropriate stage raising the appropriate proceedings. 8. The revision petition Is, therefore, dismissed as withdrawn.Revision Dismissed at Withdrawn. *******