Decided on December 06,1968

PREMRAJ Appellant
GAVRI BAI Respondents

Referred Judgements :-


Cited Judgements :-



JAGAT NARAYAN, J. - (1.)THIS is a revision application by Premraj, defendant No. 6, against an order of the Civil Judge, Jodhpur, refusing to allow an amendment of the written statement.
(2.)A preliminary objection has been taken that this Court has no power to interfere with the order of the trial court under sec. 115 c) C. P. C. Reliance is placed on an unreported decision of their Lordships of the Supreme Court in Radhey Shyam vs. Ram Autar (Civil appeal No 505 /1965 decided on 7-2-67 ). In that case it has nowhere been held that the High Court cannot interfere in revision under sec. 115 with an order allowing an amendment of the plaint or disallowing it. The revision application was filed before the Allahabad High Court in that case against an order of the trial court refusing an amendment of the plaint. The learned single Judge of the High Court when deciding the case was under the impression that it was an appeal. On this ground their Lordships set aside the judgment of the High Court. As by then an appeal had been filed in the High Court against the decree, their Lordships directed that it was appropriate that the question whether the amendment should be allowed be considered by the High Court in that appeal. In Keshardeo vs. Radha Kishen (l) the decision of their Lordships of the Privy Council in Venkatagiri Ayyangar vs. Hindu Religious Endowments Board Madras (2) was quoted with approval. Their Lordships of the Privy Council held that a revision lies under sec. 115 (c) if the court has committed some error of procedure in the course of the trial which is material in that it may affect the ultimate decision. Allowing or disallowing of an amendment is a procedural matter and a revision lies against the order under sec. 115 (c ).
Coming to the facts of the case, one Ummaidram mortgaged his house on 19-4-1948 in favour of Bansilal Chauthmal. Ummaidram died, and after his death, the mortgagees instituted Suit No, 19 of 1957 in the court of the Civil Judge on 25-3-1957 against the five sons of Ummaidram. Ummaidram left two daughters and a widow who were not impleaded as parties in the suit. On 15-5-58, the suit was compromised by the five sons of Ummaidram and a decree was passed on the basis of this compromise. On 31-1-1958, the five sons sold the house in favour of the mortgagees for Rs. 8,000/ -. On 1-6-1958 they executed a rent note for the same. On 12-9-1960 the house was sold by Bansilal Chauthmal to Premraj defendant for Rs. 8,000/ -. On 31-5-1962, Premraj obtained an ejectment decree against the five sons of Ummaidram. On 28 9-1964, the widow and two daughters of Ummaidram who were not impleaded as parties to the mortgage suit brought the present suit in the court of the Civil Judge on the allegation that the decree in Suit No. 8 of 1957 as well as the decree in the ejectment suit were not binding on them. They alleged that Ummaidram died after the coming into force of the Hindu Successionact,l956, and their share in the house was 3/8th. They prayed for possession over their house after partition. The suit was contested by Premraj Defendant No. 6. The five sons of Ummaidr?m were impleaded as Defendants Nos. 1 to 5. They filed a written statement admitting the claim of the plaintiffs. On the pleadings of the parties one of the issues which was framed was, as follows : Whether the plaintiffs are bound by the mortgage created by Ummaidram and their suit is not maintainable unless the final decree passed on 15-5-58 is set aside. This issue was tried as an issue of law and was decided in favour of the plaintiffs on 12-7-1966. The present amedment application was moved on 11-10-1969. By this amendment, the plaintiffs seek to add the following paragraphs to their written statement : *** 20 edku eqrnkfo;k meesnjke ds jgu dh vnk;xh esa cspk x;k gs vksj dtkz edku dh dher ls dgha T;knk Fkk vksj ml dtsz ds eqb;ku ikcun gs blfy, mudk rdklek djkus dk dksbz gd ugha gsa

The amendment was disallowed by the learned Civil Judge on the ground that he had already decided Issue No. 5 and Defendant No. 6 was only making an attempt to re-open the matter which he had already decided.

It is true that the pleas which Defendant No. 6 now wishes to take should have been taken by him in his written statement. They were not taken by mistake. The amendments which he seeks contain allegations of fact also which have not been raised in his original written statement. These allegations of fact are necessary for a proper decision of the case. If the defendant is not allowed to raise them in the trial court, he will not be able to base his arguments on them before the appellate Court. If on the other hand, he makes a prayer for allowing the amendment before the appellate court, then the litigation will be unduly prolonged because if the appellate court accepts the plea of the defendant, it will have to remand the suit for taking fresh evidence and recording a fresh finding.

I accordingly consider it expedient in the interest of justice to allow these amendments.

As the defendant should have raised these questions in his original written statement, I allow the amendments subject to the payment of Rs. 200/- as costs. The costs should be paid in the trial court within one month. If costs are paid within the time allowed then parties shall bear their own costs of this revision application. If, on the other hand, costs are not paid within the time, then this revision application shall stand dismissed with costs.

The revision application is decided as indicated above.

Let the record be sent to the trial court at an early date. .


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