Gobardhan Mahton and Others vs Sita Ram Singh and Others

Wort, J.—These appeals are from the judgment of the Subordinate Judge remanding the matter to the trial Court to be re-heard after allowing amendments in the pleadings which were asked for the first time before the Appellate Court, that is to say before the Subordinate Judge The actions were brought by the plaintiff-respondents for ejectment from a part of a holding on the allegation that the defendants had used portions of the holdings rendering them unfit for purposes of the tenancies. The actions were heard together and the judgment of the trial Court disposed of both the suits. There were two khatas, Nos. 78 and 91. In khata No. 78 there were plots Nos. 404 and 405 and in the other khata there was plot No. 406, and the two sets of defendants were alleged to have misused portions of these plots in the two different actions respectively. Amongst other points decided by the trial Judge was that the actions were not maintainable. The learned Judge decided that the '' actions were not maintainable because he came to the conclusion which was not reversed in appeal, that the two khatas formed one holding and that therefore the plaintiffs should have brought one action with regard to the two khatas and should have claimed as they did ejectment not from a part of the holding but from the whole holding. That the learned Judge was right is not disputed. But the trial Judge went on to decide the case on the merits and came to the conclusion that there was in fact no encroachment. The learned Judge in appeal stating that the plaintiffs alleged that the trial Court had decided the case on a preliminary point, remanded the case under Order XLI, Rule 23, Civil Procedure Code, or purported to do so. Now, as the trial Judge had heard the case on its merits as well as on a preliminary point, and would have dismissed the suit on either ground, it is quite obvious that, whatever the Judge in appeal may have stated, he had no jurisdiction to remand the case under Order XLI, Rule 23 for the simple reason which I have stated more than once that the trial Court decided the case on the merits as well as on the preliminary point. Whatever the Judge thought that he may have been doing, it is quite clear if he remanded the case, he remanded it not under Order XLI, Rule 23, but under the inherent powers of the Court u/s 151, Civil Procedure Code.

There is another matter which leads me to the same conclusion. The Judge from one point of view, it may be said, did not purport to act under Order XLI, Rule 23, as he merely stated that the plaintiffs alleged that the remand had been under that Order and rule. In addition to that, in coming to the conclusion that the amendment asked for should be allowed to the Plaintiffs (and therefore the defendants in one suit being liable, if the encroachment was established, for the encroachment in what was in the other suit in the trial Court) the Judge held that in allowing the remand the defendants should be allowed to file written statements and issues should be settled; in other words, the actions were to begin de novo as one action and tried all over again. It is quite clear therefore that if he had any power to remand, it was u/s 151, Civil Procedure Code. That would appear to me to dispose of the appeal because, as pointed out by the learned Advocate for the respondents, it not being a remand under Order XLI, Rule 23, there is no appeal to this Court.

One other point is raised, but I am not sure that it really makes much difference; but it is a fact that if the plaintiffs were now forced to bring one action, their action would be barred by limitation ; that is quite clear. But even although that be so, it would not entitle them necessarily to contend that the Judge was wrong in allowing the amendment which he did allow. If that were the only point, I should have come to the conclusion that not only did the appeal fail, but interference with the judgment of the Judge in the Court below was beyond my jurisdiction. But this is a very exceptional case and the order which the learned Judge in the Court below has made has a very far-reaching effect. It is clear that the object of amendments is primarily for the purpose of enabling the parties to place their pleadings in conformity with the evidence, or, if amendments are sought at an early stage of the case and before evidence has been given, to place their pleadings in conformity with the evidence which they propose to give. In this case something entirely different has happened. The effect of the learned Judge''s order has been to allow the plaintiffs not merely to amend their plaint in conformity with the evidence or in conformity with the facts as now established, but the amendment has the result of allowing them to start an entirely new action--an action against defendants not made parties to the suit and adding parties. It is not a question of amendment at all.

In the circumstances which I have stated it will make the defendants liable for encroachment or breaches of their implied obligations as terms for which on the facts they cannot be responsible. But that, of course, relates rather to the merits than the point to which I am addressing myself at the moment. The point really is this : has the learned Judge in the Court below jurisdiction to allow an amendment which does not amend the action as it at present stands, but allows the plaintiffs to start a new action ? In my judgment quite clearly he has no such jurisdiction ; and therefore, although no appeal lay to this Court from the order of the Subordinate Judge, I propose to exercise my powers of revision u/s 115, Civil Procedure Code, and to set aside the order of the learned Judge. In these circumstances the plaintiff''s actions will be dismissed. Treating the appeals as applications in revision, the Rule will be made absolute with costs : hearing fee two gold mohurs.