WANCHOO, C. J. - (1.) THIS is a revision by Patramdas and arises in the following circumstances.
(2.) MANGAL Chand opposite party filed a suit against Patramdas applicant for recovery of Rs. 8,500/- principal and Rs. 2,295/- interest on the basis of a hundi dated 19th February, 1948. Patramdas defendant resisted the suit and raised a number of pleas on which a number of issues were framed. Two of these issues were however, taken up for consideration by the trial court as preliminary issues and were these: - (1) Whether the suit was time barred? (2) Whether the hundi was on insufficiently stamp-paper and as such inadmissible in evidence? The question of limitation was decided against the defendant while the question of insufficiency of stamp was decided in his favour. On the latter decision, the plaintiff prayed for amendment of the plaint in order that he might fall back on the original cause of action and this amendment was allowed on payment of Rs. 40/- as costs. The present revision is against the order holding the suit time barred and allowing the amendment. A preliminary objection has been raised on behalf of the opposite party, viz. , that the question of limitation as well as the question whether amendment should or should not have been allowed can be raised under sec. 105 C. P. C. in appeal from the decree which may be finally passed in the suit and as such, in view of the decision of this Court in Purohit Swarupnarain vs. Gopinath (1) (1953 R. L. W. 629.) this revision is not entertain able. Mr. Chandmal who appears for the applicant admits that so far as the question of limitation is concerned, it can be raised under sec. 105 C. P. C. in appeal from the decree which might be finally passed; but he contends that the question of amendment cannot be raised under sec. 105 C. P. C. and, therefore, the revision is entertain able so far as the question of amendment of plaint is concerned. He relied on observations in Pyar Chand vs. Dungar Singh (2) (1952 R. L. W. 342.) in this connection in which the case of Gambhirmal vs. Gyanchand (3) (A. I. R. 1950 Raj. 20.) was discussed. Gambhirmal's case was decided by Bapna J. sitting singly and at page 358 in Pyar Chand's case Bapna. J took the view that any amendment of a plaint which purported to make out an entirely new case by substituting one cause of action for another could be taken in revision and his reasoning was this : "if the case would have been allowed to proceed on the amended plaint and decision adverse to the defendant had been given, he could not have challenged it under sec. 105 of the Code as it could not be said that the order of amendment affected the decision of the case as ultimately placed before the lower court on the merits". That case was considered by the Chief Justice also who was another member of that Bench and he was doubtful of the position and made the following observations: - "it is enough for present purposes to say that in the extra-ordinary circumstances of the case, where one plaint was practically substituted for another, it may not be possible to raise the point as a ground of appeal under sec. 105". It may be mentioned that the question whether an order allowing amendment of a plaint can be challenged under sec. 105 C. P. C. was not exactly in point in that case and was not argued at length before that Bench, though it had dealt with the effect of that decision while considering the point actually involved in that case. We have now heard learned counsel at length on the question whether an order allowing or refusing amendment of a plaint can be challenged under sec. 105 and have come to the conclusion that it can be so challenged for the reasons which we shall state presently. The relevant portion of sec. 105 C. P. C, reads as follow: - "where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. " It is well settled that the words ''affecting the decision of the case" mean affecting the decision on the merits. Now, this is certainly an order which was passed while the case was pending. But the argument is that this does not affect the decision of the case on the merits and, therefore, cannot be raised as a ground of appeal under sec. 105. Reliance is placed on the observations of Bapna J. which we have already quoted. We may, however, point out that in making those observations Bapna J. assumes that the case begins only with the amended plaint and that the appellate court will not at all be in a position to look into the plaint as it was originally filed. We do not see why the appellate court should not be able to look into the plaint as it was originally filed and what it becomes after the amendment, and decide whether the amendment was of such a nature as could be allowed under Order VI, rule 17, C. P. C. The words "affecting the decision of the case" in sec. 105 do not necessarily mean the case as amended. They include the case as it was put forward and embrace the whole state of facts from the time the plaint was presented for the first time in court up to the time of the decision. In that view, the appellate court will be able to see whether an order allowing amendment of the plaint was such as could be properly made under Order VI, rule 17. It is true that the order of amendment may not affect the decision of the case as ultimately placed before the trial court aftar the amendment ; but sec. 105 does not preclude the appellate court from deciding whether the order of amendment affects the decision of the case as originally placed before the trial court. We may refer to a number of cases in this connection which support the view that we have taken. It is practically well settled that an order refusing amendment of plaint can be challenged by the plaintiff in appeal from the decree that might be passed. Reference may be made to Vasantara-yudu vs. Subbamma (1) (A. I. R. 1914 Mad. 17.) and Purshottamlalji vs. Narayan Dass (2) (A. I. R. 1941 Oudh, 87 ). The reason behind this view is that if a plaintiff is not allowed to amend his plaint and is forced to carry on the suit on the plaint as originally filed, he may be seriously prejudiced and the rejection of the amendment may seriously affect the decision of the case. This is on the supposition that the amendment is such as ought to be allowed under Order VI, rule 17. We feel that the converse is equally true. Where an amendment is allowed in spite of the objection by the defendant, it is quite possible that the defendant may be seriously prejudiced by the amendment and if the amendment is of such a nature that it ought not to be allowed under Order VI, rule 17, there is no reason why the defendant should not be able to submit to the appellate court that the amendment should not have been allowed to his prejudice. This view has been taken in Gulrajmal vs. Pamanmal (3) (A. I. R. l914 Sind, 70. ). There an amendment was allowed and certain claim which was time barred, was permitted and a new cause of action was also allowed to be added. It was held that such an amendment could be objected to on appeal by taking a ground under sec. 105. In Gyanendra Nath vs. Pares Nath (4) (A. I. R. 1922 Cal. 255.) certain amendment was allowed and question arose whether it could be challenged in appeal by a ground under sec. 105. The Court held that the defendants were not precluded from raising the question of prejudice caused by the amendment and that it could be done under sec. 105. Once it is clear that the words "decision of the case" used in sec. 105 mean the case as it was originally put forwarded in the plaint, allowing or refusing of amendment would affect the decision on the merits and an order of this nature would be open to be challenged by a ground under sec. 105. Under these circumstances, we are of opinion that this revision is not entertainable in view of the decision in Purohit Swarup Narain's case as both the points can be raised under sec. 105 C. P. C. in appeal which might be filed from the final decree of the court. We, therefore, dismiss this revision but in view of the peculiar circumstances of this case we order parties to bear their own costs of this Court. .;