Smt. Shanti Devi and others vs Sardar Keval Singh and others

Hon''ble B.S Verma, J.

(Stay Application No. 10758 of 2011)

This revision u/s 115 of the C.P.C. is directed against the order dated 29-9-2011 passed by the Additional District Judge/F.T.C. 6th, Dehradun in Civil Appeal No. 44 of 2010, Smt. Shanti Devi and others Vs. Sardar Keval Singh and another, whereby the amendment application moved by the revisionists-plaintiffs for amendment of plaint at appellate stage has been rejected on the ground that appellate Court is not concerned with the new facts occurring in the case and that the position as on the date of judgment of trial court has to be examined by the appellate Court.

Learned counsel on behalf of the respondents has submitted that the revision may be heard finally at the admission stage today, as there is no need to invite counter version and that the issue involved in the revision is purely of a legal nature.

I have heard learned counsel for the parties and perused the impugned order.

In the operative part of the order, the learned appellate Court has observed that the appeal has to be heard on the basis of the judgment. If there is any subsequent development, then the Court has no concerned with it. The appellate Court has only to see in appeal the actual position of the property in dispute of the date of judgment of the trial Court, therefore, there is no justification of the amendment and the amendment application has no force and is rejected,

Learned counsel appearing on behalf of the revisionists has contended that the appeal is a continuation of the suit. Subsequent event can also be brought on record by filing an amendment application.

On the other hand the learned counsel appearing on behalf of the respondents has contended that the ground mentioned in the amendment application is not a subsequent event during the pendency of appeal and the fact alleged in the amendment application refers to the pendency of the suit.

Be that as it may, from a bare perusal of the impugned order it reveals that the amendment application had not been disposed of by the appellate Court on its own merits, rather the amendment application has been decided by a cryptic order by observing that with subsequent event, the Court has no concerned. Only the date of judgment of the trial Court is relevant to decide the appeal, therefore, I am of the view that since the application has not been decided on its merits, it would be in the interest of justice that the amendment application moved on behalf of the revisionists before the appellate Court be heard and decided on merits.

The finding of the appellate Court that the appellate Court has no power to see the subsequent events, if any, in appeal is a perverse finding, since the appeal is a continuation of suit and the appellate Court has power to see the subsequent events.

For the reasons above, the revision deserves to be allowed. The impugned order is liable to be set aside.

The revision is allowed. The impugned order dated 29-9-2011 is set aside. The appellate Court shall decide the amendment application moved by the appellants-revisionists in appeal afresh after hearing both the parties, in accordance with law on its own merits expeditiously, preferably within a period of four weeks from the date of production of a certified copy of this order. It is made clear that while deciding the amendment application, the appellate court shall not be influenced by the finding of this Court.