JUDGMENT
S.C. Mohapatra, J.
1. Defendant No. 7 is the petitioner in this civil revision.
2. He was set ex parte in a suit for partition when a preliminary decree was passed in which the shares were carved out in respect of the properties mentioned in the schedule of the plaint. No appeal was preferred by him against the preliminary decree. Before initiating the final decree proceeding, plaintiff liled an application for amendment of the plaint under Order 6, Rule V, CPC, and correction of the judgment and decree Under Sections 151 and 152, C P. C. to incorporate and add some properties which were not mentioned in the plaint. The trial Court allowed the applications permitting the plaint by order dated 10-11-1980 without any notice to defendant No. 7 and the other defendants against whom the ex parte decree was passed. In the same order, the judgment and the decree were also directed to be corrected. After getting the notice in the final decree proceeding, the petitioner came to know of the amendment of the plaint and correction of the judgment and preliminary decree and filed the application for recalling the order passed without giving him an opportunity of being heard.
3. Trial Court found that no notice has been given to the petitioner before permitting the amendment of the plaint and directing correction of the judgment and preliminary decree. It, however, rejected the application on the ground that the order is appealable under Order 43, Rule 1-A, C.P.C.
4. Order 43, Rule 1-A, CPC, reads as follows :
1-A. Right to challenge non-appealable orders in appeal against decrees:
(1) Where any order is made under this Code against a parry and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not have been recorded.
5. Right of appeal is a substantive right. Unless provided under law, no appeal would be maintainable. The difference in language of Rule 1 and Rule 1-A would make it clear that Rule 1-A does not give any right of appeal. It only provides that the correctness of non-appealable orders depending on which a judgment is pronounced and decree is drawn up, can be challenged in the appeal against the decree itself. The provision of Section 105, C.P.C, is highlighted in this rule. The trial Court is not justified in concluding that the order permitting amendment of the plaint and directing correction of the judgment and decree is appealable. Rejection of the petition on that ground is exercise of jurisdiction with material irregularity.
6. A party after notice may decide not to contest a suit if he finds that any decree passed as per the relief claimed would not be prejudicial to him. After the decree, he may also prefer not to challenge the same where he finds that the findings given and relief granted there-under are not prejudicial to him In a suit for partition, the share of the plaintiff in the properties sought to be divided is preliminarily decreed. Where new properties are sought to be added by amendment of the plaint, the defendants are to be given opportunity to contest the same. Absence of notice to any of the defendants would be violation of the principle of natural justice. Share in respect of one property may not be the same in respect of another property even if both the properties are admitted to be joint family oroperty. Therefore, a Court finding that the principle of natural justice has not been complied with ought to recall the order.
7. In the present case, on the finding that the petitioner did not get any notice of the petition for amendment of the plaint and correction of the judgment and decree, the order was to be recalled and refused to recall the order amounts exercise of discretion with material irregularity.
8. The order sought to be recalled is a composite order permitting amendment of the plaint and directing correction of the judgment and decree. Once the plaint is permitted to be amended, Order 6, Rule 18, C. P. C. is attracted Unless the plaintiff complies with, the requirement of Order 6, Rule 18, CPC, he shall not be permitted to amend the plaint. Therefore, the trial Court could not have passed the order directing the judgment and the decree to be corrected on the basis of the proposed amendment of the plaint for which leave was granted. The trial Court has given a finding that the plaint has not been amended. It has put the duty on the office to carryout the amendment which is contrary to Order 6, Rule 18, CPC, Normally, I would have held that Order 6, Rule 18, CPC, has become operative since the plaintiff has not. amended the plaint within fourteen days from the date of the order when leave to amend was granted and as such, the consequent order has become ineffective by operation of Order 6, Rule 18, CPC.
However, such a drastic view would be prejudicial to the plaintiff when the trial Court also felt that the office is to carry out the amendment.
9. In conclusion, the impugned order is set aside and the application of defendant No. 7 to recall the order granting leave to amend the plaint is recalled. Consequently, the direction to correct the judgment and decree is also vacated. Both the plaintiff and defendant No. 7 shall appear before the trial Court on the 27th October, 1986 (Monday), when the plaintiff shall serve a copy of the petition for amendment of the plaint on defendant No. 7 and the Court shall direct the plaintiff to take steps for issue of notice to the other defendant who were set ex parte. Time shall also be granted to defendant No. 7 to file objection to the petition for amendment of plaint. The application thereafter, shall be disposed of in accordance with law.
10. Subject to the aforesaid direction, the civil revision is allowed. There shall be no order as to costs of this civil revision.
