ORDER
Chowdhry, J.C.
1. This is plaintiffs’ application in revision and it arises in the following circumstances.
2. The plaintiffs’ father Tulsi created occupancy rights in land measuring 27 bjghas and 3 biswas in favour of 10 persons by a registered deed dated 842-1997 B. for Rs 2,160/-. Thereupon the present suit was filed by the plaintiffs on 21-9-2002, for a declaration that the alienation will not be binding on them after the death of their father because the property alienated was ancestral property and the alienation had been made without consideration or legal necessity. The alienor, the father of the plaintiffs, and all the alienees were impleaded as defendants. One of the alienees, Kapuro, died during the pendency of the suit in the trial Court and was substituted by his three sons.
3. The trial Court decreed the suit on 23-11-1.949 but laid down the condition that the plaintiffs would be entitled to recover possession of the property in suit on payment of Rs. 1,390/- to the alienees. Thereupon four of the alienee defendants filed an appaal before the District Judge on 3-1-1950. On 10-2-51, which had been fixed as the date for arguments by an order dated 5-1-1951, an application was put in before the lower appellatte Court on behalf of the defendants-appellants for the amendment of their written statement by being allowed to plead that the property in suit was not ancestral qua the plaintiffs but rather the self-acquired property of their father Tulsi. The application was contested by the plaintiffs but the learned District Judge allowed it on 15-3-1951 on the ground that, although strictly speaking the defendants might be deemed under Order 8, Rule 5, Civil P. C., to have admitted the plaint allegation as regards the ancestral nature of the property in suit, the amendment sought by them should be allowed because the written statement filed in the trial Court had been drafted by a petition-writer without the help of a lawyer. The learned District Judge was, therefore, of the opinion that a strict application of the provisions under Order 8, Rule 5, would in the present case result in injustice to the defendants. On the same date, after allowing the aforesaid application of the defendants-appellants, he delivered judgment in the appeal and allowing the appeal remanded the case to the trial Court for permitting the amendment of the written statement and then deciding the issue that might arise in consequence of the amendment and give final decision in the case. The judgment and decree of the trial Court were not set aside by the learned District Judge while allowing the appeal and remanding the case as aforesaid.
4. It may be stated here at this stage that the remand order, purporting to have been passed by the lower appellate Court under Section
151, Civil P. C., was erroneous. Even if it be
supposed that the remand was Justified, the proper course for the lower appellate Court to
adopt was to remit the relevant issue after
amendment of the written statement under Order 41, Rule 25, Civil P. C., and postpone the decision of the entire appeal until receipt of finding from the trial Court on that issue. As it is,
without setting aside the decree passed by the
trial Court the learned District Judge has required that Court to come to a fresh decision
on the entire case after disposing of the single
issue on the question of the nature of the pro
perty. If the decision on that issue were to be
in favour of the defendants, the trial Court
would be faced with the difficulty of having to
pass a decree dismissing the plaintiffs’ suit
which would be in conflict with the decree al
ready passed by that Court in favour of the
plaintiffs, and which had not been set aside
by the lower appellate Court and the trial
Court itself would have no jurisdiction to set
aside merely by reason of its having come to
a contrary finding on the issue remitted to it.
The judgment in appeal passed by the lower
appellate Court, therefore have to be set aside
in any case, whatever, the result of the present
revision. And I should have no difficulty in
doing so since although the petitioners have
not prayed for that relief in so many words,
that relief is implicit in the last paragraph of
the grounds of revision pleading that the order
of remand under Section 151, Civil P. C., was arbitrary and uncalled for. Where a Court passes
an order, as the lower appellate Court has
passed the aforesaid order of remand, without
applying its mind at all to the correct provisions of the procedural law, and where the
passing of that order has the result of creating
an impossible situation, the Court will be deem
ed to have acted irregularly in the exercise of
its jurisdiction, and there would in the Circumstance be ample justification for this Court to
set aside the order in question in exercise of its
revisional jurisdiction.
5. A preliminary objection was taken by the learned counsel for the defendants-respondents that no revision lay as the order of the lower appellate Court allowing the amendment did not amount to a case decided within the provision of Section 115, Civil Procedure Code, or the corresponding provision in paragraph 35 of the Bilaspur (Courts) Order, 1949. In support of this contention he cited the following rulings: ‘MT. SURAJPALI V. ARIYA PRATINIDHI SABHA’ AIR (23) 1936 All 686 (F B); ‘PURSHOTAM LALJI V. HARANARAYAN DASS’, AIR (28) 1941 Oudh 87 and ram pyari v. Gobind prasad’, AIR (28) 1941 Oudh 623. On the other hand, the learned counsel for the plaintiffs-petitioners cited the Full Bench case of the Lahore High Court reported as ‘BIBI GURDEVI V. MAHOMED BAKSH’, AIR (30) 1943 Lah 65 and ‘SHREE NARAIN v. KISHANLAL’, AIR (39) 1952 Rajas 15, which followed the Lahore ruling but not the Allahabad ruling cited by the learned counsel for the respondents. The Lahore ruling laid down as follows:
“The word ‘case’ in Section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any subsantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a ‘case decided’ within the meaning of S. 115, but it will be open to revision only if the other conditions expressly laid down in Section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.”
With all respect, I prefer to follow the Lahore ruling putting as it does a wider interpretation on the word ‘case’ in the aforesaid provisions and thus enabling a High Court to remedy gross injustice or irreparable injury which it might not be possible otherwise to do. All that has to be seen is whether the order impugned amounted to a decision on any substantial question in controversy between the parties, and whether in passing such an order the lower Court has laid the order open to the question on one of the grounds mentioned under Section 115, Civil P. C., or, so far as, this Court is concerned, under Para. 35 of the Bilaspur (Courts) Order.
6. Now so far as the present case is concerned, there could be no doubt that the order of amendment passed by the lower appellate Court is an order which amounts to a decision on a substantial question intimately affecting the rights of the parties, for the question whether the property in suit wag ancestral or non-ancestral would go to the very root of the matter. As to whether there does, or does not, exist any ground mentioned in Para. 35 of the Order for setting aside the lower appellate Court’s order, that is a question which I shall consider presently.
7. It was specifically alleged in Para. 3 of the plaint that the property in suit was ancestral qua the plaintiffs. The number of the alienee defendants in this case was 11. One-third of the property had been alienated in favour of the defendants 2 to 8, all brothers, one-third in favour of defendant 9, Kapuro, and one-third in favour of defendants 10 and 11, Nihala and Bhagat. There were two written statements filed in this case, one by defendants 2, 3 ,4, 8 and 10, and the other by defendant No. 9. The former written statement, while replying to the other allegations contained in paragraph 3 of the plaint with regard to the alienation haying been made otherwise than for consideration and legal necessity, was quite silent with regard to the plaint allegation that the property alienated was ancestral qua the plaintiffs. In the circumstance, on the face of it, the defendants who filed that written statement would be deemed, in view of the provisions of Order 8, Rule 5, to have admitted the aforesaid plaint allegation about the ancestral nature of the property. Kapuro in his written statement, on the other hand, in effect admitted the whole case of the plaintiffs, for apart from pleading that the alienation was for consideration he did not justify it by pleading that it was for legal necessity, and, moreover, he admitted the plaint allegation that the property was ancestral and the plaintiffs had the right to have the alienation set aside.
8. In the aforesaid application dated 10-2-1951, which was filed by the, defendants-appellants in the lower appellate Court for amendment of the written statement, it was alleged that the petition-writer who had drafted the written statement of the appellants had either inadvertently or collusively omitted to insert in the appellants’ written statement the plea that the property in suit was non-ancestral qua the plaintiffs, or rather the self-acquired property of the alienor. It was further alleged that Kapuro had colluded with the plaintiffs and their father, and that it was the duty of the trial Court to have the point clarified by examining the parties before framing the issues. It was also alleged that the petition-writer who scribed the two written-statements was one and the same person. This latter allegation, however, appears to be incorrect. On the aforesaid allegations the said amendment was prayed for.
Now, it is somewhat strange that Kapuro should have admitted the plaintiffs’ case almost in toto, and this in spite of the fact that individually he had the largest share in the property. It is further not possible for me to ascribe it necessarily to a collusion between Kapuro and the plaintiffs or the plaintiffs’ father, for it may be that Kapuro filed the said written statement realising the correctness of the plaintiffs’ case. Be that as it may, the fact remains that at no stage during the trial of the case before the Subordinate Judge did the defendants who prayed for the amendment of the written statement, and who were amongst the contesting defendants in the trial Court, make any attempt whatsoever to prove that the property in suit was non-ancestral qua the plaintiffs but the self-acquired property of the plaintiffs’ father Tulsi. This conduct of the aforesaid defendants in my opinion falsified their contention that the petition-writer drafted their written-statement against their instructions either inadvertently or collusively. On the contrary, that conduct lends support to the view that their silence in the written statement with regard to the nature of the property in suit was due to a tacit admission on their part that the plaint allegation as to the property being ancestral qua the plaintiffs was correct. It is clear therefore that the ground on which the learned District Judge purports to have allowed the amendment application, namely, that the defendants-appellants were in the hands of a petition-writer and had not the advantage of legal help and should not, therefore be allowed to suffer, is totally untenable. There is no doubt that it has been laid down that pleadings in India, especially in backward tracts like the present, should not be construed strictly. But the benefit of that proposition cannot be extended to he defendants in the present case in view of the circumstances mentioned above. Their application for amendment appears to have been filed because, having been unsuccessful on the pleas raised by them, they wanted to try their luck on an additional plea by way merely of an after-thought. That being so, it cannot certainly be said that the amendment in question was sought, or should have been allowed “for the purpose of determining the real question in controversy between the parties” within the intendrnent of Order 6, Rule 17, Civil P C. ‘GAMBHIRMAL V. GYANCHAND’, AIR (37) 1950 Raj 20. The law and facts, as just stated, were not at all taken into consideration by the learned District Judge in passing the order of amendment. Furthermore, he passed that order in the teeth of the provisions of Order 8, Rule 5, Civil P C. which he himself admitted as being strictly speaking applicable in the present case. That being so, he should be deemed to have acted irregularly in the exercise of his jurisdiction in passing the said order, and this Court should set aside that order in exercise of its revisional jurisdiction.
9. The learned counsel for the defendants-respondents was at pains to show that mere delay or laches should be no ground for disallowing the amendment. That is no doubt true as laid down in the ruling cited by him, i.e., ‘DHARMALINGA CHETTI V. A. M. KRISNASWAMI CHETTY’, AIR (36) 1949 Mad 467. At the same time as laid down in the same ruling, it is only in a deserving case that delay would be condoned. For reasons recorded this cannot be predicated of the defendants application for amendment in the present case. He also cited ‘SAMBASTVA AYYAR V. NATESA AYYAR’, AIR (25) 1938 Mad 288, but the ruling has no application since the omission sought to be rectified by amendment cannot be attributed to mere carelessness in the present case, nor can it be said that if amendment is allowed in the present case the substantial rights of the parties would not be affected. In such a case amendment cannot be allowed simply by awarding costs against the party praying for the same. Another ruling cited by him was G. MC. KERZIE & CO. V. TATANLAL SURYAJMALL’, AIR (22) 1935 Pat 463, where it was held that delay would not be adequate reason for disallowing amendment if the amendment is otherwise called for in order to determine the real questions in controversy between the parties. It has already been seen that to allow the amendment in the present case would not serve that purpose, but would rather be tantamount to helping a party which was fishing for new pleas.
10. The revision is allowed with costs, the order of the learned District Judge dated 15-3-1951 allowing the application for amendment, and the judgment and decree of the learned learned District Judge of the same date allowing
the defendants’ appeal & remanding the case to
the Court below, are both set aside, & the case
is sent back to him for disposal of the appeal
before him according to the law.