G.C. Mathur, J. - (1.) THE question whether the decision of a Full Bench of this Court in Mst. Suraj Pali v. Ariya Pratinidhi Sabha, 1936 AWR 776 (FB) holding that no revision lies from an order refusing to allow an amendment of a pleading Under Order VI, Rule 17, Code of Civil Procedure, requires re -consideration in view of the recent decision of the Supreme Court in Major S.S. Khanna v. Brig. F.J. Dillon : AIR 1964 SC 497 arose in two civil revisions before a Single Judge of this Court. In the suit, out of which Civil Revision No. 1736 of 1964 arises, the Defendant had filed an application for amendment, seeking to add a plea in his written statement that the Munsif, before whom the suit was pending had no jurisdiction to entertain the suit. This application was rejected by the Munsif and a revision was filed against the order of rejection. At the hearing of the revision, an objection was taken that the revision was incompetent as the order of the Munsif did not amount to a "case decided" within the meaning of Section 115 of the Code of Civil Procedure. The Applicant in the revision contended that the decision in Mst. Suraj Pali's (supra) case was no longer good law in view of the wide meaning given to the words "case decided" by the Supreme Court in Khanna's (2 supra) case. In the suit, out of which Civil Revision No. 1739 of 1964 arises, an application was made by the Plaintiff for amendment of the plaint by the addition of certain new facts which had arisen after the filing of the plaint. The application was opposed by the Defendants on the ground that the amendments, if allowed, would ' change the nature of the suit. This amendment application was allowed by the Munsif and a revision was riled by the Defendants before this Court. The opposite -parties raised a preliminary objection that the revision was incompetent as the order of the Munsif did not amount to a "case decided" whereas the Applicants contended that, in view of the decision of the Supreme Court in Khanna's (supra) case, the order did amount to a "case decided". In both the cases, the learned Single Judge passed the following order: Let the papers of this case be laid before the Hon'ble the Chief Justice for the re -consideration of the Full Bench decision in the case of Mst. Suraj Pali v. Ariya Pratinidhi Sabha 1936 AWR 776 (FB). There was some controversy between counsel for the parties whether the entire cases had been referred for decision to the Full Bench or only the question regarding the maintainability of the revision was referred. It is desirable that the referring order should make it clear whether the entire case is referred to the Full Bench for decision or only a question or questions are referred for its opinion. In case a question or questions are referred for opinion, the question or questions should be formulated. In the present cases it appears from the orders of the learned Single Judge that he did not intend to refer the two revisions for decision to the Full Bench but only intended to refer the question regarding the maintainability of the two revisions for opinion to the Full Bench. Accordingly, with the consent of counsels for the parties, the questions referred for the opinion of the Full Bench in the two revisions have been combined into one question which may be formulated thus: Whether an order passed Under Order VI, Rule 17 of the Code of Civil Procedure, either allowing an amendment or refusing to allow an amendment, is a "case decided" within the meaning of Section 115 of the Code? Learned Counsel for the opp. parties contended that the matter is concluded by a decision of the Supreme Court in Radhey Shyarn v. Ram Autar Civil Appeal No. 506 of 1965 decided on 7 -2 -1967. This case arose out of a suit for partition filed in the court of the Civil Judge, Moradabad. After the preliminary decree had been passed, the Plaintiff; filed an application Under Sections 151, 152 and 153 of -the Code of Civil Procedure for an amendment of the plaint as well as of the preliminary decree with respect to the description of the property which was the subject -matter of the partition suit. This application was rejected by the Civil Judge. Against his order, a revision was filed in this Court. A Single Judge of this Court allowed the revision, set aside the order of the Civil Judge and allowed the application for amendment. Against the order of the learned Single Judge, an appeal was taken to the Supreme Court by special leave. Two points were raised before the Supreme Court, namely, (i) that this Court had no jurisdiction Under Section 115, Code of Civil Procedure to entertain the revision and to interfere with the Older of the trial court as no revision was competent against the order of the trial court; and (ii) that this Court had erroneously treated the revision as an appeal and allowed the amendment rejected by the trial court. These objections were disposed of by the Supreme Court thus: These grounds have certainly considerable force and we think that the ends of justice will be met by allowing the appeal and setting aside the last order of the High Court as also that of the trial court without expressing any opinion on the correctness of the above. It is appropriate that the question which is raised in this appeal should be dealt with and decided in the appeal pending in the High Court of Allahabad against the decree of the trial court. Though the Supreme Court observed that the grounds raised had considerable force, it did not say anywhere that the order of the Civil Judge did not amount to a "case decided". It is to be noticed that the order of this Court as well as that of the Civil Judge was set aside to meet the ends of justice. The judgment of the Supreme Court cannot be read as deciding that an order allowing or disallowing an amendment of pleadings Under Order VI, Rule 17, Code of Civil Procedure did not amount to a "case decided". It accordingly does not help the opposite -parties and the question remains open for decision by this Court.
(2.) THE question has to be decided on the true meaning of Section 115, Code of Civil Procedure which provides: 115 - -The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears - - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The section consists of two parts: The first prescribes the conditions in which the jurisdiction of the High Court arises, i.e. there is a "case decided" by a subordinate court in which no appeal lies to the High Court and the second sets out the circumstances in which the jurisdiction may be exercised. There has been a conflict of view among the High Courts whether an interlocutory application is a "case" and an interlocutory order a "case decided". In every High Court from time to time opinion fluctuated. In Buddhoo Lal v. Mewa Ram, AIR 1921 Alld. 1 (F.B.) a question arose before a Full Bench of this Court whether the order of tie Munsif on a preliminary issue deciding that he had territorial jurisdiction to entertain the suit was a "case decided" or not. It was held by the majority that the order did not amount to a "case decided". The view of the majority was that the word "case" includes suits and other proceedings in the nature of a suit and that, where the revisional jurisdiction of the High Court is invoked in a suit, the suit itself is the "case". In this view, "case" does not include an issue or part of a case or an interlocutory application. After this decision, this Court uniformly held that an order allowing an amendment was not a "case decided" but there were conflicting decisions on the question whether an order refusing to allow an application for amendment was a "case decided" or not. This question was then raised before a Full Bench in Mst. Suraj Pali v. Ariya Pratinidhi Sabha (supra) and the Full Bench held that; an order refusing to allow an application Under Order VI, Rule 17, Code of Civil Procedure for amendment is not a "case decided". It was observed in this case that the word "case" could not be given such a wide meaning as to cover every interlocutory order passed by a court during the trial of a suit. But the decision of the Full Bench did not rest upon the meaning of the word "case". It held that an order refusing an amendment must stand on the same footing as an order allowing an amendment, and that, since orders allowing amendments had consistently been held by this Court not to be "case decided", orders refusing amendments must also be held not to be "case decided". At the end of this judgment, there is an observation that Cases where the amendment comes under some other order of the Code, for example, the addition or substitution of parties, or the striking off a pleading, may amount to a case decided; but an order passed purely Under Order 6, Rule 17 is not. The observation, with respect, appears to be self contradictory; If an order allowing or disallowing in amendment Under Order VI, Rule 17, Code of Civil Procedure is not a "case decided," then it is difficult to see how an order allowing or disallowing an amendment under some other provision of the Code can be a "case decided." The narrow view of the meaning of the word "case" has mot appealed to all Judges in this Court. In Chhattarpal Singh v. Raja Ram, ILR 7 Alld. 661 (F.B.), Mahmood, J. has observed in respect of Section 622, which was the equivalent of Section 115, in the old Code: The word 'case', as used in Section 622 of the Code, is no where defined; but adopting the general rule of construing statutes, I hold that the word should be understood in its broadest and most ordinary sense, unless there were specific reasons for narrowing its meaning. I confess I am unaware of any such reasons.... In the case of Buddhoo Lal v. Mewa Ram (supra), Rafiq, J. disagreed with the majority and observed: The word 'case' is large enough to include an order that deals with an issue or a question raised between the parties and the word 'decided' included any adjudication or judicial pronouncement on such a question or issue, irrespective of the fact whether such pronouncement determines the trial of the suit in the court making such pronouncement or not. Walsh, J., who also disagreed with the majority, observed: It is a 'case' as distinct from a suit. It certainly is so in the ordinary significance of the term. The fact that the hearing was an interlocutory one or a preliminary one does not make it any the less a case. In later decisions, a more liberal view was taken. It was held in some cases that an order in interlocutory proceedings prior to the institution of a suit like orders granting or refusing to grant permission to sue as a pauper and an order passed in proceedings after the decision of the suit like an order on an application to set aside an ex parte decree or to set aside a dismissal for default was a "case decided". The scope of the word "case" was further widened when it was held that, even during the pendency of a suit, orders in proceedings independent and separate from the actual trial of the suit were also "case decided". An example of this is the decision of the Full Bench of seven Judges in Ramrichpal Singh v. Dayanand Sarup, 1955 AWR 229 (F.B.) where it was held that an order u/S, 10, Code of Civil Procedure staying a suit was a "case decided". But, even in this case, Buddhoo Lal's (supra) case was held to be correctly decided. It is unnecessary to refer to other decisions of this Court or to the decisions of other High Courts, except to the decision of a Full Bench of seven Judges of the Lahore High Court in Bibi Gurdevi v. Chaudhari Mohammad Bakhsh : AIR 1943 Lah 65 (F.B.). The decision of the Full Bench is brought out in the head -note which reads thus: The word 'case' in Section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a 'case decided' within the meaning of Section 115, but it will be open to revision only if the other conditions expressly laid down in Section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage. This decision correctly lays down the scope of the word "case" and is in accord with the decision of the Supreme Court in Khanna's (supra) case. In Khanna's (supra) case, a suit for money had been filed by Dillon against Khanna in the court of the Subordinate Judge at Delhi. On the pleadings of the parties, issues had been framed including an issue whether the suit was maintainable and whether the Plaintiff was entitled to institute the suit. This issue was tried as a preliminary issue and the Subordinate Judge held that the suit was not maintainable. He, however, did not pass any decree dismissing the suit. Against the order of the Subordinate Judge, a revision was filed before the Punjab High Court which entertained the revision, set aside the order of the Subordinate Judge and directed the suit to be heard and disposed of according to law. Against the order of the Punjab High Court, Khanna took an appeal to the Supreme Court. The main question, which was canvassed before the Supreme Court, was whether the order of the Subordinate Judge deciding an issue in the suit was a "case decided' or not. The Supreme Court held that it was. The Supreme Court specifically overruled the decision of the Full Bench of this Court is Buddhoo Lal v. Mewa Ram (supra). The decision of the Supreme Court may be summarised thus: The jurisdiction of the High Court Under Section 115, Code of Civil Procedure is analogous to its jurisdiction of issuing writs. "Case" is a word of comprehensive import. It cannot be equated with a suit alone but includes part of a suit also. An interlocutory order, which has a direct bearing on the rights of the parties, is a "case decided" within the meaning of Section 115, Code of Civil Procedure, even though it does not finally dispose of the suit. An order Under Order VI, Rule 17, Code of Civil Procedure allowing an amendment or refusing to allow an amendment would be a "case decided" as it fulfils all the requirements laid down by the Supreme Court. Such an order was amenable to the jurisdiction of the High Courts to issue high prerogative writs. It has a direct bearing on the rights of the parties. In fact, it directly affects the rights of the parties. Though this Court has held that an order on an interlocutory application made prior to the institution of a suit or after its decision and on an interlocutory application in proceedings independent and separate from the trial of the suit is a "case decided", it has refused to treat an order passed on an interlocutory application during the trial of a suit as a "case decided" on account of the decision in Buddhoo Lal's (supra) case. Now that the Supreme Court has overruled Buddhoo Lal's (supra) case, the view of this Court has lost its validity. In view of the decision of the Supreme Court, the decision of the Full Bench in Mst. Suraj Pali v. Ariya Pratinidhi Sabha (supra) must be held not to have laid down the law correctly.
(3.) TO hold that an order Under Order VI, Rule 17, Code of Civil Procedure is not a "case decided" would result, in many cases, in denying relief to parties where it is most needed and in the perpetuation of gross injustice. The party aggrieved will have to wait till the suit is decided on merits after taking evidence and then raise the question in appeal. If its contention is correct, then the appellate court will set aside the order of the trial court on the amendment application and remand the case for a fresh trial. This will result in unnecessary delay and expense to both the parties. Even though an order allowing or refusing an amendment is a "case decked" this Court will not interfere unless the conditions laid down in Clauses (a), (b) and (c) of Section 115, Code of Civil Procedure are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied except by interference at that stage. Most of the other High Courts have also taken the view that an order Under Order VI, Rule 17, Code of Civil Procedure is a "case decided" - -see Sukumar Chatterjee v. Kiran Chandra Mitter : AIR 1964 Cal 439, Narayan Sonajii Sagne v. Sheshrao Vithoba : AIR 1948 Nag 258 (FB), Shah Shantilal Qhunilal v. Shah Shantilal Fulchand : AIR 1963 Guj 195, Damodara Sastry v. Nilgri Sanjiviah, AIR 1955 Mys. 141 and Pathikonda Gopala Rao v. Nagiri Pedda Kitamma, AIR 1956 AP 138.;