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Judgment
SHARAD SHARMA, J. (ORAL)
The Code of Civil Procedure contemplates the power of revision under Section 115, which was later substituted by Uttaranchal Act No. 01/2006 and
after the substitution Section 115 as applicable in Uttarakhand, reads as under:
“Uttarakhand-In its application to the State of Uttarakhand, for Section 115, the following section shall be substituted, namely:-
‘115. Revision â€"(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 effect that no revision in the case lies 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-
(i) 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
(ii) 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.
Explanation I.-In this section-
(i) the expression “superior court†means-
(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees;
(b) The High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or
other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;
(ii) the expression “order†includes an order deciding an issue in any original suit or other proceedings.
Explanation II. The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original
suits or other proceedings instituted before such commencement.
Explanation III. The provisions of this section shall not be applicable to the revisions already filed in the High Court before the commencement of this
section.’ [Vide Uttaranchal Act 1 of 2006, S.2, w.e.f. the date to be notified]â€
The power of revision as contemplated therein now has had to be confined to be made available to a party aggrieved under certain circumstances,
which are self embodied in the provisions contained under Section 115, meaning thereby:
(i) It has to be a case decided.
(ii) In view of under Section 115(3) (as applicable in Uttarakhand) as substituted by Act No. 01/2006, it should have an affect that in an event if the
Revisional Court while exercising its revisional power set asides that order, it should have an affect of deciding the lis itself or atleast deciding the
issue.
Bearing that in mind, this Court has to deal with the factual circumstances under which the controversy has reached before this Court. The plaintiff
(petitioner herein) on 04.03.2011 has instituted a Suit for the following relief in relation to the property as described in the schedule of property detailed
at the foot of the plaint:
“(i) A decree of declaration be issued in favour of Plaintiff and against the Defendant no. 1 to 15 declaring that no land of the Plaintiff is sold,
transfer or exchange vide sale deed dated 20.02.2007 duly registered at the office of sub registrar Dehradun as document no. 1851 on 22.02.2007.
(ii) Cost of the suit be awarded in favour of the Plaintff and against the Defendant no. 1 to 15.
(iii) Any other relief which the learned court deems fit and proper under the facts and circumstances of the case be also be awarded in favour of the
Plaintiff and against the Defendant no. 1 to 15.â€
While the Suit was proceeding and even before framing of the issues the plaintiff realized the error that one of the sale deeds which ought to have
been challenged has been left out to be incorporated in the relief prayed in the Suit. The petitioner thus filed and amendment application invoking
Order 6 Rule 17 on 11.11.2016, wherein the plaintiff in nutshell has sought to incorporate the pleading with regards to giving challenge to one of the
sale deeds dated 20.02.2007, which by mistake was not put to challenge due to human error. This application was opposed by the respondent by filing
their objection being paper no. 72 C(2)/1 to 72 C(2)/2 and paper number 73 C(2)/1 to 73 C(2)/2. But ultimately the learned Trial Court has allowed the
same by its order dated 17.11.2016. The Trial Court held that the petitioner has placed both the sale deeds dated 20.02.2007 and 08.08.2007 on record
of the Suit against declaration was sought. Trial Court further found the Trial was at initial stage and issues have not been framed and parties are yet
to lead their evidence, no prejudice would be caused to defendant as they would have ample opportunity to raise their defence, also coupled with fact
that nature of amendment does not at all change the nature of the Suit.
The order dated 17.11.2016 allowing the amendment of the plaintiff was challenged by the respondents by filing a Revision which was numbered as
Civil Revision 200 of 2016. The Revision of the defendants has been allowed by the impugned judgment dated 23.11.2016, resulting to consequential
rejection of amendment application of the plaintiff. Its this order which has been challenged by the petitioner, and sought the following relief in the Writ
Petition:
“(i) issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 22.03.2017 passed by the A.D.J. Vth
Dehradun in civil revision no. 200/2016 “Kiran Kumar Raj Gupta and others vs. Ashwani Singh and others†by which the order passed by Civil
Judge Junior Division Dehradun in civil suit no. 70/2011 “Ashwani Singh & others vs. Kiran Kumar Raj Gupta and others†have been set-aside.
(ii) Issue any other further order of this Hon’ble Court may deem fit and proper under the facts of the case.
(iii) To award the cost of the petition in favour of the petitioner.â€
The respondent no. 15 has filed her counter affidavit contending that the relief sought by the plaintiff by amendment is time barred relief, which
cannot be permitted, and it intends to overcome the issue of limitation, consequently his contention is that as soon as the amendment is allowed it
would relegate back to the date of institution of the Suit, and would have extend the period of limitation, and hence the stage of finding of amendment
was not of much bearing. The Writ Petition is opposed by the defendant taking shelter to the judgment ‘Radhika Devi vs. Bajrangi Singh and
Others’ as reported in 1996(7) SCC 486. In the said judgment in paragraph 5 the Hon’ble Apex Court was laying down a principal where it
has postulated that normally the amendment in the plaint has to be granted and it has carved out an exception that only in exceptional circumstances
where the right has accrued or it is taken away by the amendment of the pleadings, the same could be refused. Paragraph 5 of the judgment is quoted
hereunder:
5.We find no force in the contention of the appellant. No doubt, the amendment of the plaint is normally granted and only in exceptional cases where
the accrued rights are taken away by amendment of the pleading, the Court would refuse the amendment. This Court in Laxmidas Dahyabhai
Kabarwala vs. Nunabhai Chunilal Kabarwala [(l964) 2 SCR 567 at 582) held thus:
It is, no doubt, true that, save in exceptional cases, leave to amend under 0.6, r.l7 of the Code will ordinarily be refused when the effect of the
amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh
allegations added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing
pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be
considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants here were
not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed.
Respondent no. 1, 7 to 11 have chosen not to file any counter affidavit and they adopt the stand taken by the counsel for respondent no. 15.
This Court is in absolute agreement with the ratio as laid down by the Hon’ble Apex Court, but, there is a marginal distinction, which is to be
drawn into the instant case looking to the present scenario and under the changed law as prevailing now after amendment of 2002, there had been a
corresponding amendment made in the Order 6 Rule 17, which is quoted hereunder:
“17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and
on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in
controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the commencement of trial.†also, it permits the amendment to be carried out before
the proceedings enters into Trial. Admittedly, here the amendment was filed before framing of the issues that means a Suit has yet to enter into Trial.
The judgment relied by the respondent would yet again not support their version on the ground that due to delayed challenge to the sale deed the
amendment ought not to have been permitted by the Trial Court and thus he affirms that the view taken by the Revisional Court was absolutely
justified. With respectful submission and humility at my command the reasoning assigned by the Hon’ble Apex Court would not be applicable at
present stage in this case, this Court would seek to carve out a slight distinction, taking into consideration the impact of the provisions contained under
Order 7 Rule 6 of the Code of Civil Procedure, which is quoted hereunder:
“17. Grounds of exemption from limitation law-Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the
plaint shall show the ground upon which exemption from such law is claimed:
[Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is
not inconsistent with the grounds set out in the plaint.]
It grants a liberty to a plaintiff to raise a time barred claim but, which obviously is subject to certain conditions contained in it. Hence, the issue
pertaining to the nature of amendment and whether the relief sought as a consequence of allowing the amendment would be time barred or not is an
issue yet to be decided after the amendment is brought into effect and exchange of pleadings. Its impact of the relief being time barred is a question
which is to be decided only when the parties lead their evidence after framing of the issues.
In these circumstances, this Court is of the view that the Revisional Court’s order cannot be sustained for the reason further that the order
allowing the amendment under challenge in Revision will not amount to be a case decided as it was not deciding a lis or a right of a party and further
more in an event if the Revisional Court allows the Revision it was not resulting into meeting the objective as contained under Section 115(3)(i)
applicable in State of Uttarakhand. Hence, the Revisional Court ought not to have interfered against the order of the Trial Court while exercising its
Revisional power. Consequently, the Writ Petition is allowed. The impugned order dated
22.03.2017 is quashed. The order passed by the Trial Court dated 23.11.2016 allowing amendment is upheld. This will not preclude the defendants
from raising all legal issues, which are available to him under law. At this stage learned counsel for respondent no. 15, seeks to reserve his rights to
raise contentions before the Court below as consequence of allowing of amendment by this Court.