Court No. - 10

Case :- CIVIL REVISION No. - 31 of 2022

Revisionist :- Ram Ashrey And 7 Others

Opposite Party :- Vijay Kumar Gupta And 12 Others

Counsel for Revisionist :- Vijay Anand Rai,Krishna Nand Rai

Hon'ble Rohit Ranjan Agarwal,J.

Heard learned counsel for the revisionists.

This is defendants' revision filed under Section 115 of the CPC

against the judgment and order dated 03.12.2021 passed by

Civil Judge (Senior Judge), Ballia on the application filed by

the plaintiff under Order VI Rule 17 in Original Suit No.60058

of 2017, whereby the amendment application of the plaintiff

was allowed by the Court below.

Learned counsel for the revisionists submitted that the suit for

specific performance was filed by the plaintiff. By the proposed

amendment, the plaintiffs had tried to introduce a case for

cancellation of sale deed and also sought relief of injunction.

He submitted that the Court below was not justified in allowing

the proposed amendment of the plaintiffs.

I have heard learned counsel for the revisionists and perused the

material on record.

It is not in dispute that the amendment application moved by

the plaintiffs was allowed by the Court below for amending the

plaint so as to claim the relief of cancellation of sale deed as

well as the injunction was sought against the defendants.

Apex Court in case of Prem Bakshi and others Vs. Dharam

Dev and others, (2002) SCC 2 held that a revision filed at the

behest of the defendant against the order allowing the

amendment of pleading in the plaint was not maintainable and

the defendant revisionist will have a chance to take up all the

points raised in the plaint in his written statement. Relevant

paragraph nos. 2 to 8 are extracted here as under;

2. The short question for determination is whether the impugned order

was revisable by the High Court by exercising powers under Section 115

CPC. The said section runs as follows: -

"115. Revision (1) The High Court may call for the record of any case

which has been decided by any Court subordinate to such High Court and

in which no appeal lies thereto, and if such subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with

material irregularity, the High Court may make such order in the case as

it thinks fit:

Provided 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 or other 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.

(2) The High Court shall not, under this section, vary or reverse any

decree or order against which an appeal lies either to the High Court or

to any Court subordinate thereto.

Explanation. In this section, 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."

3. The proviso to sub-sections (1) and (2) with explanation was added by

the amending Act of 1976. By this amendment the power of the High Court

was curtailed; the intention of the legislature being that High Court

should not interfere with each and every interlocutory order passed by the

trial court so that the trial of a suit could proceed speedily and that only

the interlocutory order coming under clause (a) or (b) of the proviso

would be entertained by the High Court.

4. In Major S.S. Khanna versus Brig. F.J. Dillon [AIR 1964 SC 497: 1964

(4) SCR 409] this court considered the expression "any case which has

been decided' in sub-section (1) of Section 115 CPC and held that the

expression 'case' is a word of comprehensive import and includes