Decided on November 19,1960

DAL SINGH Appellant
JAI SINGH Respondents


- (1.)THIS is a revision under sec. 230 Rajasthan Tenancy Act, 1955, preferred by the defendants in a suit for possession over agricultural land, whose prayer for the permission of the amendment of their written statement granted by the trial court (Assistant Collector Udaipur) has been turned down in appeal by the learned Commissioner Udaipur on 1. 3. 60.
(2.)IT has been urged by Shri Gorwara on behalf of the applicant-defentdants that the suit had been going on for about 13 years and that in the meanwhile as a result of legislative changes they had acquired Khatedari as well as prescriptive rights over the disputed land and therefore wanted to amend their defence to one based on these grounds from that, that the sale in favour of the plaintiffs-opposite party was not valid, which fact had also been decided since against them in a separate civil suit by the competent civil courts right upto the High Court. The contention is that the learned Commissioner has committed an illegality by dis-allowing the amendment as such. This has been rejected on behalf of the plaintiff-opposite party by Shri Bapna with the contention that the matter being not "a case decided in which no appeal lies" to the Board this revision is incompetent.
The foremost question to be determined therefore is whether the revision does lie or not. Similar matter came up for examination before the Rajasthan High Court ` in Patram Das Vs. Mangal Chand (ILR 1953 3 Raj. 880 DB - 1954 RLW 182) wherein distinguishing AIR 1950 Raj. 20 and following Purohit Swamp Narayan Vs. Gopinath (ILR 1953 3 Raj. 483 = 1953 RLW 629 and relying on AIR 1914 Mad. 17, 1941 Oudh 87, 1914 Sind 70 and 1922 Cal. 255 it was held that an order allowing or refusing amendment of plaint could be challenged in appeal from the decree under sec. 105 C. P. C. on the ground that it would affect the decision on merits, and therefore a revision against such an order could not be entertained. In ILR 1953, 3 Raj. 483 = 1953 RLW 629 it was held by the Full Bench of five Judges that "where it is open to a party to raise a ground of appeal under sec. 105 C. P. C. from the final decree or order with respect to any order which has been passed during the pendency of the case it should be held that an appeal in that case lies to the High Court within the meaning of the term 'in which no appeal lies thereto' appearing in sec. 115 C. P. C. ".

Sec. 230 of the Rajasthan Tenancy Act, 1955 with reference to the Board of Revenue is the same as is sec. 115 of the Code of Civil Procedure 1908 with reference to the High Court so far as the powers of revision go. By virtue of sec. 208 of the Rajasthan Tenancy Act, the provisions of the Code of Civil Procedure 1908 apply to all suits and proceedings under this Act subject to the modifications prescribed by list II of the Fourth Schedule thereto and excepting the provisions contained in List I of the same Schedule and those applicable to the special suits or proceedings outside the scope of this Act, unless there is anything inconsistent therein with the provisions of the Act. The provision of sec. 105 C. P. C. therefore that "where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case (on merits) may be set forth as a ground of objection in the memorandum of appeal" would apply to the present suit also, there being neither anything inconsistent with any provision of the Act therein nor there being anything in the Lists I and II of the Fourth Schedule thereto to bar this application. . A second appeal would lie to the Board under sec. 224 against the decree passed in the present suit; and the refusal of the permission to amend the written statement could always be taken. as a ground of objection in the memorandum of appeal preferred therefrom. For this amendment or otherwise would affect the decision of the suit on merits, and any error in any order affecting such a decision can be so questioned, it being a question of law whether an amendment should have been, allowed or not. This revision is therefore rejected as being incompetent. .


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