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2017 DIGILAW 1023 (JK)

Aisha v. Ama Wagay

2017-11-23

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. This Civil Revision is directed against the order dated 29.04.2017, of the learned Sub-judge, Shopian, whereby he has rejected the application for amendment filed by the petitioner under Order 6 Rule 17 CPC. The facts as these emerge from the study of the file under consideration are that the petitioner was married to one Abdul Aziz Rather as a Khana Nisheen daughter and she lived continuously with her father after her marriage. Her father-respondent No. 1, executed a family agreement vide which land measuring 05 Kanals and 19 Marias, situated at village Pinjura, Shopian, was transferred to her. In addition to this, the respondent No. 1, executed a deed of gift by which land to the tune of 03 Kanals and 03 Marias vested in her. 2. Her brothers (respondents 2 to 5) started interfering into the peaceful possession of the land held by her. This constrained her to file a Civil Suit titled "Mst. Aisha v. Ama Wagay & Ors." before the Court of learned Sub Judge, Shopian on 09.05.2005, bearing File No. 68/N. The trial Court passed an interim order, directing the respondents not to interfere with the suit land to the extent of her possession. The respondents resisted her claim on the ground that the subject matter of the suit has been already transferred in favour of respondent Nos. 2 to 5 by virtue of a family settlement dated 16.04.2008 and a gift deed dated 09.06.2005. 3. It is further pleaded that the petitioner filed two separate suits before the trial Court on 03.04.2010, challenging the family settlement and the gift deed executed in favour of the respondent Nos. 2 to 5. These were rejected under Order 7 Rule 11 by an order dated 12.05.2012. In addition to these suits, the petitioner challenged the mutations that were attested in favour of the respondents. The appeals filed against the mutations are pending adjudication. It has been stated further that by an order dated 03.09.2013, the trial Court dismissed the Suit No. 68/N, dated 09.05.2005, for want of evidence. The said order dated 03.09.2013, was assailed in an appeal filed before the Appellate Court. The Appellate Court allowed the appeal by an order dated 28.04.2016. After this order of the Appellate Court, the suit of the petitioner was restored to it original number with which the proceedings commenced. The said order dated 03.09.2013, was assailed in an appeal filed before the Appellate Court. The Appellate Court allowed the appeal by an order dated 28.04.2016. After this order of the Appellate Court, the suit of the petitioner was restored to it original number with which the proceedings commenced. The petitioner moved an application under Order 6 Rule 17 CPC, seeking amendment of the plaint challenging the gift deed dated 09.06.2005 and the family settlement dated 16.04.2008. The trial Court dismissed the said application on 29.04.2017. Hence the revision. 4. By his order the trial Court, directed, inter alia, the plaintiff came to know about the execution of the gift deed dated 09.06.2005 and family settlement dated 16.04.2008 in the year 2009 and challenged these in two separate suits filed before the learned District Judge, Shopian. Both these suits were dismissed by the learned District Judge, and, thereafter, instead of seeking a remedy against the dismissal she devised ways and means to challenge the family settlement and the gift deed by incorporating an amendment in the pleadings. 5. Order 6 Rule 17 CPC deals with the amendment of the pleadings. It provides that the Court may at any stage of proceedings allow the amendment of pleading as may be necessary for the purpose of determining the real question of controversy between the parties and the proviso attached to Order 6 Rule 17 CPC provides that no application for amendment shall be allowed after the commencement of the trial unless the Court comes to the conclusion that inspite of due diligence the party could not raise the matter before the commencement of trial. 6. After taking a cue from some judicial pronouncements the trial Court held that to sum up the plaintiff is seeking amendment of the suit to challenge the family settlement dated 16.04.2008 and gift deed dated 09.06.2005 after availing the opportunity of challenging these through separate suits filed before learned District Judge, Shopian. She did not succeed there and now she wants to incorporate an amendment in the present suit. She did not succeed there and now she wants to incorporate an amendment in the present suit. The orders of the dismissal of suits under Order 7 Rule 11 by the learned District Judge were appealable and being so the remedy available to the plaintiff was to file appeals against the orders of the dismissal of suits and not to seek the amendment of the pleadings and that a valuable right under the Law of limitation has accrued to the respondents/defendants which cannot be defeated by way of an amendment. Even after the orders of the dismissal of suits by the learned District Judge on 12.05.2012, the plaintiff did not approach the Court upto 03.09.2013, i.e. the date of dismissal of her suit for lack of evidence. It was after a great deal of time that is on 02.07.2016 that she filed the instant application which shows lack of due diligence. 7. The trial Court accordingly came to the conclusion that in view of the facts and circumstances of the case and in light of the case laws, there is no merit in the application for amendment and, accordingly, the same is rejected. 8. Heard and considered. 9. The Civil Laws (Amendment) Act, 2009 (Act No. VI of 2009, dated 20.03.2009 is a compendious amendment incorporated in the Code of Civil Procedure. It amended Section 115 of the Code of Civil Procedure which empowered the High Court to call for the record of any case decided by any Court Subordinate to the High Court, and vary or reverse such an order, where the Subordinate Court is found to have exercised a jurisdiction not vested in it under law, or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity, or the order to have caused failure of justice. The amendment added a rider to this power by incorporating a proviso to Section 115 of the CPC, which provides 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 the order, if had been made in favour of the party applying for revision would have finally disposed of the suit for other proceeding. 10. 10. From a bare look of the amendment incorporated in Section 15 CPC detailed herein before what gets revealed is that it lays down certain checks and balances and restricts to a large extent the supervisory powers of the High Court to be exercised under this Section. The Civil Laws (Amendment) Act, 2009, excluded clause 'b' of the proviso added to Section 115 CPC and substituted it by the above proviso. Elaborating the position of law on the maintainability of a revision under the Amended Act in the case of "Prem Bakhsi & Others v. Dharam Dev & Others" reported in AIR 2002 SC 559 , in light of the above proviso, the Supreme Court observed as under: "5. The proviso to sub-section (1) of Section 115 puts a restriction on the powers of the High Court in as much as the High Court shall not, under this Section vary or reverse any order made or any order deciding am issue, in course of a suit or other proceedings except where, (i) the order made would have finally disposed of the suit or other proceedings or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a Subordinate Court if the said order finally disposes of the suit or other proceedings. By way of illustration we may say that if a trial Court holds by an interlocutory order that it has no jurisdiction to proceed in the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a)." 11. In yet another case titled as "Shiv Shakti Co-op. Housing Society v. Sawaraj Developers and Others" reported in AIR 2003 SC 2434 , the Supreme Court ordained as under: "Section 115 is essentially a source of power for the High Court to supervise the Subordinate Courts. It does not in any way confer a right on a litigant aggrieved by any order of the Subordinate Court to approach the High Court for relief. It does not in any way confer a right on a litigant aggrieved by any order of the Subordinate Court to approach the High Court for relief. The scope for making a revision under Section 115 is not linked with a substantive right. The Court making a comparison of Section 115 CPC as it stood before the amendment and after the amendment held:- A comparison of two provisions of Section 115 as they stood before amendment and after the amendment of 1999 shows that while proviso (a) of the unamended provision has been retained in its totality. In the amended provisions clause (b) of the proviso has been omitted. It is to be noted that prior to the amendments to the Code by the old Amendment Act, the power of revision was wider. By the amendment, certain positive restrictions were put on the High Court's power to deal with the revisions under Section 115. Prior to the said amendment, it was not strictly necessary that the impugned order would have the result of finally deciding the Las or the proceedings in the lower courts. In fact, the power could be exercised in any case where jurisdiction error was committed by the original court or where substantial injustice had resulted........" 12. The Supreme Court repeated and reiterated this principle in the case of "Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044 , para 4 of which assumes significance in the context of the decision of this petition and is reproduced below word for word and letter for letter: "4. Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the trial court. The reason is that the order of the High Court passed either way would not have the effect of finality disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of Section 115 of the CPC. The amendment is based on the Malimath/committee's recommendations. The reason is that the order of the High Court passed either way would not have the effect of finality disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of Section 115 of the CPC. The amendment is based on the Malimath/committee's recommendations. The Committee was of the opinion that the expressions employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to sand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the Revisional power will all types of interlocutory orders and this was substantially contributing towards delay in the disposal of the cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile Cl.(b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respects of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso in satisfied". 13. Applying the principle of law as propounded in the judicial precedents detailed above to the facts of the instant case, the trial court by an order based on reason, logic and the law, rejected the application for amendment filed by the petitioner, primarily, on the ground that she did not knock at the doors of the Court for a long period of seven years approximately despite knowledge, by which time the relief claimed had extinguished by the efflux of time provided under the law of limitation. This order of refusal did not have the trapping of the culmination of the proceedings or the disposal of the lis. In Surya Dev Rai's case, an application for the grant of temporary injunction was rejected by the trial court as a corollary to which an appeal was preferred against the trial court order. The appeal also met the same fate. The order in the Appeal was assailed in a revision and the Supreme Court held that the revision against the order of the Appellate Court was not maintainable in view of the amendment incorporated in section 115 CPC. The appeal also met the same fate. The order in the Appeal was assailed in a revision and the Supreme Court held that the revision against the order of the Appellate Court was not maintainable in view of the amendment incorporated in section 115 CPC. The law laid down in "Shiv Shakti Co-op. Housing Society's" case (Supra) was in effect followed in "Surya Dev Rai's" case (Supra). In "Yeshwant Sakhalkar" case, the High Court did not set aside the order of the Appellate Court that allowed the appeal against the order of the Trial Court, refusing temporary injunction, in exercise of its revisional powers under Section 115 CPC but the High Court exercised its jurisdiction under Article 227 Constitution of India. In "Gayatri Devi's" case (Supra) a civil revision was filed before the Delhi High Court against an order of the Appellate Court that had rejected an appeal against the Trial Court order, dismissing the application for grant of temporary injunction. The High Court allowed the civil revision and the Supreme Court set aside the order of the High Court on the following analogy: "14. In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of Section 115 of the CPC. The Revision Petition was entertained at a stage of an interlocutory proceedings. As laid down by the Court in Shiv Shakti Co-op. Housing Society v. Swaraj Developers, an order interim in nature of which does not finally decide the Lis, cannot be challenged by way of a revision under section 115 of the CPC. 17. In the result, we are of the view that the High Court grossly erred in entertaining the revision petition and granting relief which was unjustified both in law and on facts. The impugned judgment of the High Court is quashed and set aside." 14. For the reasons and the case law cited above, it is abundantly clear that in any case where the order in favour of the party applying for revision gives finality to the suit or other proceedings, the revision is maintainable under Section 115 CPC. Per contra, if the answer to this question is "no" and the impugned order is interim in nature and does not finally decide the Lis, the revision is not maintainable. The Legislative intent is luminous and clear on that count. Per contra, if the answer to this question is "no" and the impugned order is interim in nature and does not finally decide the Lis, the revision is not maintainable. The Legislative intent is luminous and clear on that count. The order impugned in the revision filed before this Court is an order of refusal to allow the amendment in the pleadings. The order is interim in nature and it does not decide and determine the suit finally. Had the revision been filed against an order that would have in effect finally disposed of the suit, the position would have been different? 15. In view of what has been said and done above, the civil revision is dismissed along with all connected MP(s). The record of the Trial Court shall be sent back forthwith along with a copy of this order.