G. M. LODHA, J. - (1.) THIS revision petition is directed against the order of the first appellate court District Judge, Jaipur dated 4,5. 1985 passed in Appeal No. 7 of 1982 whereby the amendment application dated 24. 9. 1982 was rejected.
(2.) THE case has got a chequered history and that according to Mr. Vidhya Bhushan, it is now going to be three decades of this litigation. The controversy relates to padnarity of Suraj Narain, who alleges that he is son of Gauri Lal and the controversy was regarding the alleged legitimacy of his birth. The suit was for partition and it came to this court earlier also for rendition of accounts and dissolution of the firm. At the present the question is whether the first appellate court committed any error of jurisdiction in rejecting the prayer for amendment and further whether any of the conditions laid down in the proviso will be fulfilled so that section 115 C. P. C. can be invoked. The amendments mention that the parties are Darji's and Darjis according to the plaintiffs are sudras and there is a custom of Nata. This has been treated as a valid marriage and the isssues or the child are treated as legitimate child and get all those rights which a legitimate child gets. Earlier the plaint averment was that the plaintiff is the son of
(3.) VFOOKFGR L=h** lateron an effort was made to introduce that there was a legitimate marriage according to the religious ceremony of Hindus between Ganpati Devi and Gori Lal. It is not necessary to mention the entire history of this amendment application which was earlier allowed and there was a revision and there was an acceptance of the revision and further remand of the case, because this all is irrelevant for the purpose of decision of this revision petition. Whereas Mr. Vidhyabhushan's contention is that the litigation should not be prolonged and this amendment should be allowed so that the real question and controversy is decided as soon as possible. Mr. Mathur opposed that the plaintiff has been taking summer salt after summer salt and claiming different status of marriage which are contradictory and paradoxical and further that in any case no question of acceptance of any customs now arises after section 4 of the Hindu Succession Act came into force in the amended form which gives a good bye to all earlier customs for good. Mr. Mathur's another contention is that whatever may be valid or legitimate stand on the tenability of the submission of Mr. V. B. Sharma on the question of amendment or its rejection and acceptance either way is concerned, the important feature of the case is that under sec. 115 C. P. C, no such revision petition can be entertained because this question can be at the best be entertained in second appeal, as the decision of this case neither would result in the decision of the main suit because the suit will have to decided on its own merit. Moreover even if this revision application is not allowed and the petitioner is given the remedy before second appeal lateron then also it would neither result in failure of justice nor it would be an irreparable injury because the injury can be repaired and justice would not be done in permitting this revision jurisdiction to be utilised for such amendment and at such a stage after the earlier history of the case in which earlier amendments were made and different positions were taken. Be that as it may, I would not like to enter into controversy about strength or weakness, tenability or un-tenabillty of the case of the petitioner. Undoubtedly the petitioner is a child and it is really a matter of serious concern which of course should invite the attention of the legislation primarily that a child is condemned from succession on the ground of so called illegitimacy, whereas the fact always remains that child never gives or takes option but it is parents action and the child in legal phraseology may be called illegitimate but in fact he always comes as a legitimate birth irrespective of the derogatory legal terminology which may be used by society depending upon its lack of real value. It is unfortunate that for parents illegitimate acts or that in such a situation a child is required to face so much humiliation socially and legally also, economically and then in the matter of property is deprived by law. This of course is a fact which need not to be developed any further because as a court of law I am not competent to dilute this social philosophy from the rigour and rigidity on his deprivation which has existed for such a long period of feudal history which the society has suffered, condoned and accepted. However so far as present revision is concerned, I have got no doubt that the question whether such an amendment should be allowed or not is a serious substantial question of law as it has got several facets and they are well known. It also goes to the root of the case because the right or bedrock or foundation of the right is based on it. That being so its acceptance or rejection would certainly be a serious substantial question of law to be considered by the court at an appropriate stage. So far as the present revision petition is considered, I am inclined to accept the objection of Mr. Mathur even if it is assumed, though I would not given my final opinion on this point that rejection of such an application for amendment may result in error of jurisdiction but then too it is of course well known that even if I allow the revision application the appeal will have to be considered on merits and even if the order is made infavour of the party applying for revision it would not finally dispose of the suit for other proceedings. The second alternative regarding failure of justice or causing irreparable injury is also not present in the present case. The injury cannot be called irreparable. After all, all that would mean is that the second appeal would be considered in a comprehensive manner alongwith the merits and the court would apply its mind at that time to all facets including the merits the case. I am therefore, of the opinion that neither it would result in failure of justice nor it would be irreparable injury. That being so the question which have been decided by the impugned order are left open and they would not be final because in case the present petitioner cannot succeed in the appeal for any reason whatsoever then he would be at liberty to raise this point of rejection of the amendment application as a substantial question of law in that appeal. ;