IMPORTANT POINT
The appealability of orders passed by the District Judge in proceedings under Section 278 of the Indian Succession Act, 1925, and the appropriate recourse against the rejection of an amendment application under Order 6 Rule 17 C.P.C.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard learned counsel for the appellant.

2. The instant appeal has been filed to set aside the impugned judgement and order dated 22.12.2023 passed by Additional District Judge, Court No.3, Pratapgarh, in M.N.R./203/2014 (Indra Bahadur Yadav vs. Harkhas Aam & others) whereby the amendment application of the appellant was dismissed.

3. The contention of learned counsel for the appellant is that the appellant had filed a petition u/s 278 of the Indian Succession Act, 1925 (hereinafter referred to as "Act, 1925") for grant of letters of administration and during its pendency, he filed an amendment application which was rejected by the impugned order. It is further submitted that the impugned order is absolutely erroneous as if the amendment was allowed that would not change the nature of the suit as he simply wanted to add the date of the will dated 4.6.1996 in the plaint.

4. After considering the aforesaid submission, a question arises as to whether against the rejection of an amendment application under Order 6 Rule 17 of C.P.C. by the District Judge, while hearing the suit u/s 278 of the Act, 1925, an appeal lies under Section 299 of the Act, 1925.

5. On that issue, learned counsel for the appellant submits that as per Section 299 of the Act, 1925, every order passed by the District Judge in the proceeding under Section 278 of the Act, 1925, is appealable.

6. From perusal of Section 299 of the Act, 1925, it appears that under this Section only those orders are appealable which were passed by the District Judge in exercise of power, conferred upon him under the Act and same will be in accordance with the provision of CPC. For reference Section 299 of the Act, 1925 is quoted as under:-

"299. Appeals from orders of District Judge.—Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High. Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals."

7. The provision of appeal against an order is provided under Order 43 Rule 1 of C.P.C. For reference the Order 43 Rule 1 of C.P.C. is quoted as under:-

"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely :-

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed];

(b) [***]

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

(e) [***]

(f) an order under rule 21 of Order XI;

(g) [***]

(h) [***]

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

(m) [***]

(n) an Order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person ;

(o) [***]

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;

(r) an order under rule 1, rule 2, [rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1 or rule 4 of Order X