TORAN SINGH KUNWAR SINGH Vs. THE STATE OF MADHYA BHARAT
LAWS(MPH)-1955-10-11
HIGH COURT OF MADHYA PRADESH
Decided on October 08,1955

Toran Singh Kunwar Singh Appellant
VERSUS
The State of Madhya Bharat Respondents

JUDGEMENT

Dixit, J. - (1.) THE applicant has instituted a suit in the Court of Civil Judge First Class against the State of Madhya Bharat claiming a declaration that an order made by the Government on 22 -8 -1952 removing him from the Judicial Service of the State was illegal, void and inoperative and that he was still a member of Madhya Bharat Judicial Service. The suit was instituted after complying with the provisions of Section 80, Code of Civil Procedure On 16 -5 -1845 the Plaintiff made an application for amendment of the plaint seeking the relief of the pay -ment to him of Rs. 8000/ - on account of arrears of salary and damages for the mental worry caused to him. The amendment was sought to be made, after a notice of the additional claim had been given to the Government under Section 80, Code of Civil Procedure. The learned Civil Judge refused leave for the amendment. Hence this revision petition.
(2.) THE order of the trial Court refusing leave on the ground that the Plaintiff did not give any notice to the Government under Section 80, Code of Civil Procedure," in respect of the relief of the payment of arrears of salary and damages before the institution of the suit is clearly wrong and cannot be upheld. The new relief asked for by the Plaintiff' does not introduce a new cause of action and, therefore, a further notice under Section 80, Code of Civil Procedure, is not necessary. Even if it is taken that the amendment desired by the Plaintiff introduces a new cause of action not specified in the original notice and that a further notice is necessary, here the Plaintiff has given a notice to the Government of the further relief he claims. The trial Judge was, therefore, wrong in rejecting the Plaintiff -applicant's prayer for the amendment, of the plaint. The decision reported in - -'Ganpati v. State Madh -B LJ, 1954 HCR 1748 (A), does not lay down the proposition that in cases to which Section 80, Code of Civil Procedure, applies, an amendment of the plaint can not be made so as to add a new cause of action or a new relief not specified in the original notice even after giving a further notice under Section 80 Code of Civil Procedure. Mr. Mungre, learned Government Advocate for the State relying on - 'Keshardeo v. Radha Kissen : AIR 1953 SC 23 (B), argued that the order of the trial Court refusing leave for the amendment, of the plaint should not be disturbed in revision as it could not be said that in making that order the trial Judge acted in excess of his jurisdiction or assumed, jurisdiction which he did not possess, or failed to exercise jurisdiction vested in him. This contention is based on an insufficient appreciation of the observations of the Supreme Court in the case cited, with regard to revisional powers of the High Court under Section 115, Code of Civil Procedure. The Supreme Court has nowhere said that the High Court can interfere only in those cases where there is non -exercise or illegal assumption of jurisdiction. In 'Keshardeo's case (B), it has been made very clear that the High Court can also interfere in those cases where a subordinate Court in exercising its jurisdiction has acted illegally or with material irregularity. Now while it is always easy to find out whether a subordinate Court has assumed jurisdiction it does not possess, or whether it has refused or failed to exercise jurisdiction where it exists, the question whether in the exercise of the jurisdiction it has acted illegally or with material irregularity is one which presents some difficulty. In 'Venkatgiri Ayyangar v. Hindu Religious Endowments Board, Madras : AIR 1949 PC 156 (C), the Privy Council explained 'acted illegally' as meaning 'acted in breach of some provision of law' and 'acted with material irregularity' as having acted "by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision". This case and the later case of - 'Joy Chand v. Kamalaksha Chaudhury : AIR 1949 PC 239 (D), were referred to by the Supreme Court in ' : AIR 1953 SC 23 (B)'. In that case Mahajan J., (as he then was) who delivered the judgment of the Court also approved the observations of Bose J., in - 'Narayan v. Sheshrao : AIR 1948 Nag 253 (FB) (E), that the words 'illegally' and 'material irregularity' do not cover either errors of fact or of law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. The guiding principle deducible from : AIR 1953 SC 23 (B) and the cases referred to therein is that Clause (c) of Section 115, Code of Civil Procedure, permits interference in those cases where, the Court though possessed of jurisdiction, commits an error or irregularity of procedure or violates or disregards any rule of law or procedure in the manner of arriving at a decision. In such a case the High Court interferes not because the decision itself is in, law or in fact wrong or perverse, but because it is vitiated by the manner in which it is reached.
(3.) NOW with regard to amendment of pleadings the settled rule is that a party is allowed to make such amendments as may be necessary for determining the real questions in controversy or to avoid multiplicity of suits provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that, no vested interest or accrued legal right is affected, and that the application is not made mala fide and the amendment can be allowed without injustice to the other side. If a subordinate Judge decides the question of amendment in utter disregard of these well -established principles, then he clearly acts with illegality within the meaning of Clause (c) of Section 115. In the instant case the lower Court ignored all these principles and determined the question of amendment holding in effect that in cases to which Section 80, Code of Civil Procedure, applies there can be no amendment of plaint for the reason that notice of the suit under that section is required to be given before the institution of the suit. The present case is really a case where by a wrong construction of Section 80, Code of Civil Procedure, the lower; Court failed to exercise a jurisdiction vested by law in regard to amendment. I am, therefore, clear in my mind that the order of the trial Court refusing leave to amend the plaint, in this case is revisable under Section 115, Code of Civil Procedure.;


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