Patna High Court
Smt. Kanti Modih vs Bhagwat Prasad Bhuwalka on 8 February, 1984
Equivalent citations: AIR1985PAT16, AIR 1985 PATNA 16, (1985) PAT LJR 26, 1984 BBCJ 708, (1985) 2 CIVLJ 327
JUDGMENT Satyeshwar Roy, J.
1. In this application the petitioner has prayed for setting aside the order dated 2-9-1978 passed by the Special Subordinate Judge, Ranchi, in Execution Case No. 29 of 1967.
2. The petitioner obtained a money decree against opposite party No. 2. She executed the decree and the same was registered as Execution Case No. 29 of 1967. In that execution case an immovable property was auction-sold and was purchased by the petitioner. Opposite party No. 1, who was not party to the decree, filed an application labelled under Order 21, Rule 58 and Section 151 of the Code of Civil Procedure (the Code) in which he stated that he had interest in the property and prayed for dismissing the execution case. While that was pending another application was filed by opposite party No. 1 in which he prayed for allowing some amendments in the application filed earlier by him. The petitioner filed objection to the same. By the impugned order the Court below allowed the prayer of opposite party No. 1 and directed that the application be registered as Miscellaneous case under Order XXI Rule 90 of the Code. The petitioner has challenged the validity of this order.
3. The case was listed before a learned single Judge who by order dated 5-3-1982 directed that the case be placed for hearing before a Division Bench. This civil revision application, therefore, was listed before this Bench.
4. When the case was taken up for hearing, Mr. N. K. Prasad, learned counsel appearing on behalf of the opposite party No. 1, submitted that the only question on which the parties were heard by the Court below and which it was required to decide was whether the application filed by opposite party No. 1 could have been allowed to be amended and this civil revision application, therefore, should be confined to that only. He further submitted that the other points which the Court below decided by the impugned order were so decided on the basis of the averments made by the opposite party No. 1 in his application and the objection thereto filed by the petitioner and no opportunity was given to the parties to lead evidence in support of their respective cases. He, therefore, submitted that so far the decision of the Court below on the question whether the application filed by opposite party No. 1 was barred by limitation or whether he had any interest in the property auction-sold must be left open to be decided after the Court below hears the parties on the basis of the evidence which they may choose to adduce in support of their respective cases. From the perusal of the order of the Court below it appears that application after giving findings on the concerned points, the Court below directed that the objection filed by opposite party No. 1 be registered as a Miscellaneous case and it was registered as Miscellaneous case No. 23 of 1978. It further appears that none of the parties led evidence with regard to the question of limitation. Mr. Debi Prasad, learned counsel appearing on behalf of the petitioner, did not contest the statements made by Mr. N. K. Prasad. In the circumstances, on the facts and for the ends of justice, this civil revision application is confined only to that part of the order by which it allowed the amendment prayed for on behalf of the opposite party No. 1.
5. The facts which are not in dispute are that in Execution Case No. 29 of 1967 some immoveable property was auction-sold some time in the year 1969 and the auction sale was confirmed by the executing Court. On 20th of June, 1978 the opposite party filed an application labelled under Order XXI, Rule 58 and Section 151 of the Code. The petitioner filed objection regarding its maintainability. On 8-7-1978 the opposite party No. 1 filed an application for amendment of the application filed on 20th June, 1978. An application under Section 5 of the Limitation Act was also filed. On 2-9-1978 the prayer for amendment of the application filed on 20-6-1978 was allowed and that was registered as Miscellaneous Case under Order XXI Rule 90 of the Code.
6. Mr. N. K. Prasad raised a preliminary objection with regard to maintainability of the "civil revision application. He contended that the order passed by the court below cannot be said to be an order which has "decided any case" and, therefore, the application was not maintainable. He further submitted that even if it can be held that "a case has been decided" as neither proviso (a) nor proviso (b) to Section 115(1) of the Code was attracted, nor the order impugned was passed in course of a proceeding, no revision application was maintainable.
7. Mr. Debi Prasad submitted that the order passed by the Court below must be held to be "a case decided" and was passed in a proceeding and if the order impugned is allowed to stand, he contended, it would occasion a failure of justice. According to him the civil revision application was, therefore, maintainable.
8. By the amending Act of 1976 a proviso was introduced to Section 115(1) of the Code. An explanation was added to the section by which it was provided that the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. The proviso which was added after Sub-rule (1) lays down that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -
(a) the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit proceeding, or;
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
It will be noticed that by the explanation an inclusive definition of "any case which has been decided" has been introduced. Where an inclusive definition is used, it would be inappropriate to put a restricted interpretation upon the terms of wider connotation. This was held by the Supreme Court in State of Bombay v. Hospital Mazdoor Sabba, AIR 1960 SC 610 while interpreting the definition of industry in the Industrial Disputes Act, 1947. All orders passed in tbe course of a suit or other proceeding is included within the expression "any case which has been decided" which appears in the explanation to Section 115 of the Code. This interpretation was also given by a learned single Judge in Dwarika Prosad Kerjriwal v. Rajendra Prasad Sao, 1980 Pat UR 146.
9. Even that be the position, can it be held that (against?) any order passed in a suit or proceeding and against which no appeal lies, the High Court can exercise in its revisional jurisdiction? The High Court may exercise the jurisdiction under Section 115 of the Code against any order of subordinate Court if it appears to the High Court that the subordinate Court -
(a) exercised jurisdiction not vested in it by law or
(b) have failed to exercise its jurisdiction so vested or
(c) have acted in exercise of its jurisdiction illegally or with material irregularity.
But because of the proviso even if the High Court with regard to any order passed by the subordinate Court is satisfied that any of the Clause (a) or (b) or (c) was attracted, it shall not reverse or vary the order if had it been made in favour of the party applying for revision would have finally disposed of the suit or other proceeding, or the other order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Therefore even if all orders passed by the subordinate Court and which are not appealable are amenable to its revisional jurisdiction, the High Court shall not reverse or vary it if neither proviso (a) nor (b) is attracted. The explanation must, therefore, be read along with the proviso. In other words, only such order may be reversed or varied in the revisional jurisdiction which is not appealable and which attracts either proviso (a) or (b) and any of the clauses of Section 115(1). No decision contrary to what has been held above was brought to our notice by any of the parties.
That being the legal position the first objection of Mr. N.K. Prasad regarding the maintainability of this application fails.
10. According to Mr. N. K. Prasad this application was not maintainable as the order was not passed in any proceeding and according to Mr. Debi Prasad it was passed in the execution proceeding. According to the procedure, when any objection regarding maintainability of any execution case or any claim to any property which has been attached or is subject-matter of an execution case is filed in the execution case, usually it is registered as miscellaneous case. It is needless to note that registration of an application as miscellaneous case does not preclude the other party from contending that it was not maintainable. The petition filed by opposite party No. 1 on 20th of June, 1978 was in the execution case and in usual course it ought to have been registered as a miscellaneous case. But it was not so registered. Registration of a suit or an application is a ministerial job made in compliance of the order of a Court. With regard to that a party has nothing to do. Admittedly opposite party No. 1 filed the application on 20th of June, 1978 in execution case but it was not registered as a miscellaneous case. That being so any order that was passed on the application must be held to have been passed in the execution proceeding. I, therefore, reject the contention of Mr. N. K. Prasad and held that the civil revision application was maintainable; whether the order impugned should be varied or reversed is a different question.
11. According to Mr. Debi Prasad in view of the legal position that the Patna Amendment to Order XXI, Rule 58 of the Code was not available to opposite party No. 1 in July, 1978, the Court below had no jurisdiction to entertain the application and consequently the Court below had no jurisdiction to allow amendment of it. Regarding the jurisdiction of the Court reliance was placed in Pandit Rudra Nath Mishir v. Pandit Sheo Shankar Missir, 1983 BBCJ (HC) 26 : (AIR 1983 Pat 53). Mr. N. K. Prasad conceded that in July, 1979 opposite party No. 1 could not have levelled the application under Order XXI, Rule 58 of the Code, but he contested the submission made on behalf of the petitioner that the Court below had no jurisdiction to entertain the application.
The question if the Court had no pecuniary or territorial jurisdiction to entertain the plaint, whether it could allow amendment of the plaint to bring the suit within its jurisdiction. In Ratan Lal Pachisia v. Ranchoor Das Ramjee, 1982 BLT (Rep) 16 it was held that if the Court had no pecuniary jurisdiction to entertain the plaint, it had no jurisdiction to allow its amendment to bring it within its pecuniary jurisdiction. In Rudra's case (supra) It was held that on the averments made in the plaint, if the Court had no territorial jurisdiction to entertain the same, it had no jurisdiction to allow the amendment of the plaint to bring it within its territorial jurisdiction. In both the cases, therefore, the question involved was inherent lack of jurisdiction to entertain the plaint. In the present case the Court below had no inherent lack of jurisdiction to entertain the application filed by opposite party No. 1 on 20th of June, 1978 as the execution case was pending in that Court but whether the same was maintainable or not had nothing to do with the jurisdiction of the Court to entertain it. That being the position it follows that as the Court below had jurisdiction to entertain the first application filed by opposite party No. 1, it had jurisdiction to entertain the application for amendment filed by him. Again, whether the amendment should have been allowed or not has nothing to do with the jurisdiction of the Court to entertain the application for amendment.
12. Mr. Debi Prasad submitted that in the application filed on 20th June, 1978 there was neither any averment in terms of Order XXI, Rule 90 of the Code nor there was any relief in terms of the same and by the amendment the opposite party sought to fill it up so as to bring it within that rule. According to him by the amendment the initial case of opposite party No. 1 was completely changed and the relief prayed for also became completely different from what was originally prayed for. He urged, therefore, the amendment should not have been allowed. Mr. N.K. Prasad submitted that the necessary averments as required in an application under Rule 90 were already there in the first application and the amendment for relief could have been prayed on the basis of those averments. The amendment did not change the case of opposite party No. I or the relief prayed for by him.
13. The application filed on 20-6-1978 by opposite party No. 1 is annexure I to this civil revision application. In paragraphs 1 to 4 of annexure 1 opposite party No. 1 stated that he came to know about the execution case and the auction sale between the period 15-6-1978 and 17-6-1978. In paragraphs 5 to 9 of annexure 1 opposite party No. 1 stated the facts to show that his interest was effected by the sale with regard to the correctness or otherwise of those statements, we are not concerned. In paragraph 10 and subsequent paragraphs the sale was challenged on the ground of irregularity and fraud. The relief prayed for in annexure 1 was for dismissal of the execution case. Annexure 2 is an application for amendment of annexure 1. There was a prayer for allowing the amendments of some typographical mistakes, for allowing to add Rule 90 in the first application filed by him, and for allowing to insert one paragraph which reads as follows : --
"23A. That the sale was thus brought about by serious and material irregularity and fraud at the instance of the decree-holder and the applicant has sustained substantial injury. The sale is, therefore, liable to be set aside and the applicant is prepared to make such deposits or furnish such security as the Court may direct."
In the prayer portion insertion of prayer for setting aside sale was also made.
14. When admittedly opposite party No. 1 was claiming an interest in the property in question after it had been auction-sold and purchased by the petitioner, opposite party No. 1 could not have filed an application under Order XXI, Rule 58 of the Code. It is true that the original application was labelled under Order XXI, Rule 58 and Section 151 of the Code. Labelling of the application was immaterial and what mattered were the statements made therein. Even if no section or order of the Code was mentioned, the application could still be entertained under particular rule, or section of the necessary averments were there. I have already noticed the assertions made in annexure 1. Reading that as a whole, in my opinion, there were assertions of facts in annexure 1 as required under Rule 90 of the Code. By addition of one paragraph which has been quoted above, in my opinion, opposite party No. 1 was not trying to introduce new facts. But by the same he wanted to couch the statement of facts in the language mentioned in Rule 90 of the Code. So far the introduction by amendment of the prayer for setting aside the sale is concerned, the foundational facts were already there in annexure 1. It has been repeatedly held that if the foundational facts are there, the Court may grant relief. In my opinion, therefore, by the amendment the case of the opposite party No. 1 could have prayed for the other relief on the basis of such averments. Beg. C. J., in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 laid down (Paras 4-5):-
"Provisions for the amendment of pleadings, subject to such terms as to costs and giving to all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights of accused..........
It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action..."
In Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin, 1980 BBCJ 102 : (AIR 1981 SC 485) the Supreme Court held (Para 6) : --
"...........Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice or prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendments of pleadings......."
The order to the extent it is subject-matter of this application does not attract any clause of the proviso and any clause of Section 115(1) of the Code.
15. In the result, this application is allowed in part and that part of the, order of the Court below by which it decided the question of limitation, the interest of the opposite party No. 1 in the property in question and all its observations in that regard are set aside. In other respect that order is confirmed. There shall be no order as to costs. The Court below shall dispose of Miscellaneous Case No. 23 of 1978, after allowing the parties to lead evidence in support of their respective cases, in accordance with law. If any observation has been made in this judgment with regard to the merit of the cases of the parties, the same shall be ignored by the Court below while deciding the questions that may arise with regard to the claim of opposite party No. 1.
Abhiram Singh, J.
I agree.