J.V. Gupta, J. - (1.) THIS is Defendants' second appeal against the order of remand passed by the learned Additional District Judge in appeal.
(2.) IT is the common case between the parties that Bujha, deceased, the father of Harbans Kaur, Plaintiff -respondent, was the owner of the property in suit, she is his daughter and, thus, she is his sole legal heir and successor. She instituted the suit for possession of the suit property on the allegations that after the death of her father on March 3,1975, the Defendants Appellants had taken forcible possession thereof without any right, title or interest therein. The suit was contested on the plea that the Defendants had been declared to be the owners in possession of the suit land vide civil Court decree dated January 23, 1975, in civil suit No. 13 of January 8, 1975, on the basis of the oral gift dated April 14, 1955, executed in their favour by Bujha, deceased. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether Bujha, deceased, made any oral gift on April 14, 1955, in favour of Defendants No. 1 to 3 ? 2. Whether Defendant Nos. 1 to 3 got any consent decree against Bujha, deceased ? If so, its effect ? Relief. Both the issues were discussed together by the trial Court. It held that the decree dated January 23, 1975 (copy, Exhibit D.W.7/1), was passed in favour of Defendants Nos. 1 to 3 and against Bujha, deceased and that the same was based on the oral gift dated April 14, 1955, alleged to have been made by Bujha, deceased, in favour of the defendants. No specific finding was recorded by it under issue No. 1 because according to it unless the said decree was challenged the Court could not go into the question whether the alleged oral gift was actually made or not because the alleged gift had merged into the decree. Thus the suit was dismissed. In the appeal filed on behalf of the Plaintiff Respondent, it was argued that the application for amendment of the plaint under Order VI Rule 17, Code of Civil Procedure, (hereinafter called the Code), was filed in the trial Court which was dismissed vide its order dated November 18, 1978. The said order, according to the Plaintiff Respondent, was wrong and illegal, and that on the facts and circumstances of the case, she was entitled to seek the necessary amendment of the plaint. The lower appellate Court after hearing the Learned Counsel for the parties, ultimately, came to the conclusion that the trial Court should have allowed the amendment of the plaint as prayed for and having failed to do so, it had materially prejudiced her case. Consequently, the order dated November 18, 1978, dismissing the application of the Plaintiff for amendment of the plaint, was set aside. As a result, the judgment and decree of the trial Court were also reversed and the case was remitted to it for fresh trial after allowing the Defendants to file fresh written statement to the amended plaint Dissatisfied with the same, the Defendants have come up in second appeal to this Court.
(3.) At the time of the motion hearing, the Learned Counsel for the Appellants cited Babu Padam Gir v. Murti (Deity) Shi Paras Nath Digamber Jain, 1981 Curr. L.J 411. It was held in the said case that even if the amendment of the plaint was allowed by the lower appellate Court, the decree of the trial Court could not be set aside on that ground alone. The Learned Counsel for the Appellants also relied upon Shrimati Dhapan v. Vijay Singh, (1980) 82 P.L.R. 211 and Fauza Singh v. Jaswant Singh, (1978) 80 P.L.R. 456, and contended that even if the amendment of the plaint was allowed by the lower appellate Court, the decree of the trial Court could not be set aside as the case did not fall under Order XLI Rule 23 of the Code. At the most, a report could be sent for from the trial Court after allowing the amendment of the plaint. On the other hand, the Learned Counsel for the Plaintiff -respondent contended that the remand order was fully covered under Order XLI Rule 23 of the Code because the trial Court had disposed of the suit upon a preliminary point and, therefore, the decree of the trial Court was rightly reversed in appeal. The Learned Counsel further contended that the expression "preliminary point", in Order XLI Rule 23 of the Code, is not confined to a point of law or point of jurisdiction and that it does not mean the same thing as a preliminary issue Since the trial Court had disposed of the suit under issue No. 2 only, the lower appellate Court rightly set aside the decree and remanded the case for fresh trial. In support of this contention, the Learned Counsel relied upon D.P. Singh v. State : A.I.R. 1973 All. 174, Jit Kaur v. Kehar Singh, A.I.R. 1951 Pepsu 130, Raman Nayar v. Krishnan : A.I.R. 1922 Mad. 505, Bai Bai v. Mahadu Maruti : A.I.R, 1960 Bom. 543 and Abdul Gani v. Devi Lal : A.I.R. 1960 Raj. 77. In all those cases, it has been held that the expression, "preliminary point", in Order XLI Rule 23 of the Code, is different from a 'preliminary issue', as generally understood. No authority taking a contrary view has been cited at the bar. Under the circumstances, the authorities relied upon by the Learned Counsel for the Appellants have no applicability to the facts of the present case. The lower appellate Court rightly set aside the decree of the trial Court when it came to the conclusion that the order of the trial Court dismissing the application for allowing the amendment of the plaint was wrong and illegal. By way of the amendment, the Plaintiff wanted to challenge the decree of the civil Court which was the subject -matter of issue No. 2 on the basis of which the trial Court had dismissed the Plaintiff's suit.;