Punjab-Haryana High Court
Jamni Dass vs Jugal Kishore on 10 November, 2000
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 6.11.1998 passed by the Additional District Judge, Karnal vide which the application under Order 6 Rule 17 of the Code of Civil Procedure was declined.
2. Some facts can be noticed in the following manner :-Earlier the plaintiffs filed a suit before the trial Court. When the suit was at the stage of arguments, an application under Order 6 Rule 17 of the Code of Civil Procedure was moved. The trial Court dismissed the application on the plea that the application has been moved when the case had already been argued and the case was posted for orders. Aggrieved by the order of the trial Court, the plaintiffs filed revision before the Hon'ble High Court which came up for consideration before Hon'ble Mr. Justice G.C. Garg on 19.8.1994 and the following order was passed:
"Admittedly, the petitioners moved an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure seeking amendment of the plaint after the arguments had been concluded and the case was posted for pronouncement of orders. In Food Corporation of India v. M/s Krishan Rice and General Mills, 1990(2) P.L.R 383, this Court took a view that application for amendment of plaint could not be entertained after the arguments had been concluded and the case posted for pronouncement of judgment. In this view of the matter, there is no scope for interference with the order dated 1.6.1994 passed by the trial Court. The revision is dismissed. The trial Court will proceed with the suit in accordance with law."
3. The order dated 19.8.1994 remained final. Suit was disposed of and it was dismissed. Plaintiffs-petitioners filed an appeal before the first appellate Court and at the appellate stage also repeated the application under Order 6 Rule 17 C.P.C. for amendment of the plaint which was dismissed primarily by the first appellate Court relying upon the order dated 19.8.1994. In this manner, the present revision.
4. I have heard Shri B.S. Bedi, learned counsel for the petitioners and Shri P.K. Mutneja, learned counsel for the respondents and with their assistance, I have gone through the records of this case.
5. After hearing learned counsel for the parties, this Court is of the considered opinion that impugned order is liable to be set aside. Irrespective of the fact that earlier application under Order 6 Rule 17 C.P.C. was dismissed by the trial Court, it does not debar and detract the plaintiffs to repeat the application under Order 6 Rule 17 C.P.C. at the appellate stage. The order of the lower court does survive only up to the stage of the suit. The plaintiffs could repeat the application under Order 6 Rule 17 CPC when it was not even decided on merits by the trial Court as well as by the first appellate court because the stage of making the application was after the arguments were concluded by the trial court earlier. Now it has to be seen independently whether the proposed amendment is destructive and material in consistent with the case put up by the petitioner before the trial Court. I am of the opinion that the proposed amendment ought to have been allowed by the first appellate court and this application should not have been dismissed by relying upon the order of learned trial court or of the Revisional Court-Learned counsel for the respondents, however, relied upon a judgment of the Hon'ble Supreme Court reported as Gurdev Singh and others v. Mehnga Ram and another, AIR 1997 SC 3S72 : 1997(3) RRR 712 (SC) and submits that when the order of the appellate Court allowing additional evidence is challenged in the High Court in a revision such revision is not competent. This judgment is distinguishable on facts. Moreover, this court is of the opinion that allowing or disallowing an application under Order 41 Rule 27 CPC is a case decided within the meaning of Section 115 CPC and gives a cause of action to the aggrieved party to file revision before the High Court.
6. Resultantly, this revision is allowed; impugned order is set aside and the application under Order 6 Rule 17 CPC is allowed subject to payment of Rs. 3,000/- as costs which shall be conditional. The trial Court shall take amended plaint on the record and shall give opportunity to the defendants to file written statement to the amended plaint and defendants will be at liberty to take fresh pleas if they want to take up and then the appeal shall be disposed of in accordance with law. Parties are directed to appear before the first appellate Court on 11.12.2000.
7. Revision allowed.