- (1.) ARUN Tandon, J. Heard Counsel for the parties.
(2.) PETITIONER initiated original suit proceedings No. 302 of 1987 seeking declaration of his title and share over House No. 23/188 as well as for delivery of possession. Respondent No. 1 Sri Sirajul Haq initiated independent original suit proceedings, being Original Suit No. 179 of 1978 claiming title over the entire property with possession thereto. In the suit filed by the petitioner-plaintiff, Sri Sirjul Haq filed his written statement. The petitioner, however, filed an application for amendment of the plaint allegation under Order VI Rule 6 of the Civil Procedure Code. The application was numbered as Paper No. 77-Ka. Sri Sirajul Haq, who was defendant in the said suit, filed his objections. The Trial Court by means of the order dated 21-8-2004 has rejected the application filed by the petitioner. Feeling aggrieved by the said order of the First Additional Civil Judge (Senior Division), petitioner preferred Civil Revision No. 239 of 2004 under Section 115 of the Civil Procedure Code. The revision so filed by the petitioner has been dismissed by the District Judge only on the ground that the Revision is directed against an order rejecting the amendment application and Revision against such an order is not maintainable in view of the judgment of the Hon'ble High Court of Judicature at Allahabad, reported in 2004 (1) JCLR 93 (All); 2004 (1) AWC 502; Brij Bhushan v. District Judge, Saharanpur and Ors. , which in turn is based on the judgment of the Hon'ble Supreme Court in the case of Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers and Ors. ; reported in 2003 (2) JCLR 756 (SC); 2003 (3) AWC 2198 (SC ). It is against this order of District Judge the present writ petition has been filed. The controversy in the present writ petition is confined to the issue as to whether a revision against an order rejecting the amendment application is maintainable under Section 115 of the Civil Procedure Code or not. It would be worthwhile to reproduce Section 115 of the Civil Procedure Code, as amended by the U. P. Act No. 14 of 2003, which is quoted herein below: "115. Revision.- (1) A superior Court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate Court where no appeal lies against the order and where the subordinate Court has - (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in exercise of its jurisdiction illegally or with material irregularity. (2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the District Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the District Court. (3) The superior Court shall not, under this Section, vary or reverse any order made except where, (1) 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 (2) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. (4) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the superior Court. " From the aforesaid provision, it cannot be disputed that a revision would be maintainable against an order, deciding an issue in an original suit or other proceedings, if the same passed by a subordinate Court, as provided under sub-section (1) of Section 115 of the Civil Procedure Code.
(3.) IN view of the aforesaid, the issue required to be considered by the Revisional Court, while exercising jurisdiction under Section 115 of the Civil Procedure Code, is as to whether issue decided by the subordinate Court amounts to case decided in the facts of the case. The District Judge, while passing the impugned order has not appreciated the ratio laid down by the Hon'ble High Court in the case of Brij Bhushan v. District Judge, Saharanpur and Ors. (supra) inasmuch this Court in paragraph 4 has held as follows: (4) In view of the aforesaid proposition of law, in my opinion, since finding is already recorded by the revisional Court that no prejudice is caused to the petitioner, I do not see any illegality or irregularity committed by the revisional Court in refusing to entertain the revision. ";