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2010 DIGILAW 494 (JK)

Om Parkash v. Mohan Lal Sharma

2010-09-18

Hasnain Massodi

body2010
1. Challenge is to the order of Ld. Munsiff Akhnoor dated 22.2.2010 in Civil suit titled Om Parkash v. Mohan Lal Sharma (23/Civil) whereby Ld. Munsiff has disallowed petitioner/plaintiff’s application for amendment of the plaint. 2. Perusal of record reveals that petitioner/ plaintiff’s father brought a suit for grant of declaratory decree declaring the sale deed executed on 18.2.1993, as outcome of fraud, without consideration and thus null and void. A permanent prohibitory injunction restraining respondent/ defendant from interfering in the suit property was also sought. The petitioner/plaintiff, after death of his father, stepped into his shoes and prosecuted the suit. The case set up before the Trial Court was that the respondent taking advantage of old age and illiteracy of the plaintiff, had made the plaintiff to put his hand unto the document that turned out to be sale deed of the property measuring 7 kanal and 10 marlas comprising survey No. 397 situated at Mawa Krora Tehsil Akhnoor. It was pleaded that the plaintiff in the suit at the time of execution of the documents, was made to believe that the documents were being executed in connection with extension of a loan facility to the plaintiff for setting up a fish pond, to which the plaintiff was entitled as a member of schedule caste. Be that as it may, the petitioner at the fag-end of the proceeding when the parties had concluded their evidence and the case was fixed for final arguments, filed an application for amendment of the plaint. The petitioner pleaded that though the suit property was in possession of the plaintiff (petitioner’s father) at the time of institution of the suit, yet during pendency of the suit its possession was forcibly taken by the respondent and that on the date of filing of the application under Order 6 Rule 17 Civil Procedure Code the respondent was in possession of the suit property. The petitioner sought to plead that he was forcibly dispossessed of the property during pendency of the suit and also proposed to incorporate relief for possession of the suit property. The petitioner sought to plead that he was forcibly dispossessed of the property during pendency of the suit and also proposed to incorporate relief for possession of the suit property. The application was resisted by the respondents on the ground that the respondent was in possession of the suit property ever since sale deed was executed by the father of the petitioner in his favour and that the respondent to the knowledge of the plaintiff, had demolished the house situated thereon and constructed a new building and that the respondent had been residing with his family in the said house. The respondent insisted that he had set up a claim of possession over the said property in his written statement filed on 6.11.1995 and that the application for amendment was brought 15 years after the written statement was filed. The Trial Court found the application belated and held that in the event it was allowed the respondent would be exposed to immense hardship. The application was accordingly dismissed. 3. The order dated 22.2.2010 declining prayer for amendment of the plaint is questioned on the ground that the Trial Court has not appreciated the case set up before it in right perspective. The Trial court is alleged to have decided the application on technicalities and unmindful of settled legal principles. The delay in filing application for amendment of pleadings, it is urged cannot be a ground for declining the prayer as in terms of Order 6 Rule 17, either of the parties to civil proceedings may alter or amend pleadings at any stage. It is pleaded that the Trial Court while rejecting the application for amendment, has exercised jurisdiction with material irregularity resulting in failure of justice. 4. Heard and considered. 5. The State Legislature by Amending Act of 2009 has incorporated/brought major drastic changes in different provisions of CPC including section 115: Proviso to section 115(1), recast by the Amending Act, reads: "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 the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings." 6. The Legislature while recasting the Proviso has amended clause (a) and deleted clause (b) of the Proviso. The Legislature while recasting the Proviso has amended clause (a) and deleted clause (b) of the Proviso. The proviso to section 115(1) before amendment read as under: "Provided that the High Court shall not, under this section vary or reverse any order made, or an 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 7. In wake of amendment to section 115(1) (proviso) the High Court shall not vary or reverse any order while exercising its revisional powers unless the order falls within Proviso to section 115(1) and if the order impugned does not so fall within purview of Proviso, the order shall not be varied or reversed even when the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In terms of amended Proviso to section 115(1) the High Court in exercise of its revisional powers can vary or reverse an order only where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. 8. Proviso to section 115(1) has amended by Amending Act of 2009 in effect curtails and restricts the revisional jurisdiction of the High Court. Prior to the amendment even an order not finally disposing of the suit and other proceedings, was revisable if the order, if allowed to stand, would occasion the failure of justice and cause irreparable injury to the party against whom it was made. Clause (b) having been deleted, it follows that even if the order impugned in the revision petition may occasion the failure of justice or cause irreparable injury to the party against whom it is made, it cannot be interfered with unless of course it finally disposes of the suit or the proceedings. Clause (b) having been deleted, it follows that even if the order impugned in the revision petition may occasion the failure of justice or cause irreparable injury to the party against whom it is made, it cannot be interfered with unless of course it finally disposes of the suit or the proceedings. The order disallowing the application for amendment of the pleading, cannot be said to be an order, that if made in favour of the party applying in revision i.e., petitioner, would have finally disposed of the suit or other proceedings. An order declining prayer for pleadings is thus no more revisable in terms of amended proviso to section 115(a) Civil Procedure Code. 9. So viewed, the revision petition is not maintainable inasmuch as the order impugned in the revision petition, if made in favour of the petitioner, would not finally dispose of the suit. The revision petition is accordingly dismissed.