# Smt. Tahira Begum v. Additional District Judge/Court No. 2 Raebareli

- **Citation:** (2010) 2 ILRA 539
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-24
- **Case number:** Civil Revision No.127 of 2008
- **Bench:** S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tahira-begum-v-additional-district-judge-court-no-2-raebareli-41625
- **Pages:** 9

## Headnote

Code of Civil Procedure-Section-115(III)
(I) and (II)-Revision-by impugned Order
amendment
application
allowed-by
which neither admission withdrawn nor
changed the nature of suit but a man on
additional plea taken-Revisionist has
been given opportunity to file additional
written
statement-held-can
not
be
interfered under revisional jurisdiction.

Held: Para 20

Sub-section (3) of Section 115 C.P.C., as
applicable in State of U.P., clearly
indicates that the superior court shall
not vary or reverse any order made
except when the impugned order comes
within the purview of sub-clause (i) or
sub-clause (ii) of sub-section (3). In the
instant case, the plaintiffs' application
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for amendment in the plaint has been
allowed.
If
the
said
amendment
application would have been rejected
and the order would have been passed in
favour of the revisionist/defendant, the
appeal would not have been disposed of
finally. On the other hand, if the
impugned order is allowed to stand, it
would neither occasion a failure of
justice nor would cause irreparable
injury to the revisionist/defendant. This
view has been fortified by the principles
of law laid down by the Hon'ble Supreme
Court in the case of Prem Bakshi &
others (supra) and Baldev Singh & others
etc.
(supra).
Besides
it,
the
revisionist/defendant
has
also
been
provided an opportunity to file additional
written statement to the amended plaint
vide impugned order dated 12.08.2008.
Since the impugned order does not come
within the purview of sub-clause (i) or
sub-clause (ii) of sub-section (3) of
Section 115 C.P.C., no interference is
called for in the said order by this Court
in exercise of it's revisional powers.
Case law discussed:
2005(23) LCD 1250, 2006(24) LCD 874,
2007(25) LCD 1756, 2006(24) LCD 1705, AIR

## Text

2 All] Smt. Tahira Begum V Additional District Judge/Court No. 2 Raebareli
539
section 313 Cr.P.C. and after setting aside
the order of acquittal remanded the case to
the trial court with the direction to dispose it
of afresh after examining the three accused
persons under section 313 Cr.P.C. The
Supreme Court while considering the
necessity of the compliance of section 313
Cr.P.C., has observed that non compliance
of section 313 Cr.P.C. can be objected only
by the accused and not by the complainant
or the prosecution and in the absence of any
complaint by the accused for its non
compliance, there was no justification to
remand the case to the trial Court only for
the purpose of examining the concerned
accused personally and to pass fresh order
on merits.

10. The benefit of the above
observation of the Apex Court can not be
extended to the revisionists because, firstly,
the ratio of the case is that non compliance
of section 313 Cr.P.C. can be objected only
by the accused and not by the complainant,
and secondly, in this case it is the accused
revisionists who are complaining about the
improper compliance of section 313 Cr.P.C.
and not the complainant. Moreover, under
clause (b) of sub-section (1) of section 313
Cr.P.C., it is mandatory for the Court in
every inquiry or trial to put questions to the
accused to enable him personally to explain
any circumstance that has appeared in the
evidence against him after the prosecution
witnesses are examined and before the
accused is called on for his defence, and if
the Court fails to properly comply with this
statutory requirement, the appellate court is
well within its powers to remand the case to
the trial court for proper compliance of its
statutory duty in order to secure the ends of
justice.

11. In view of all the aforesaid, the
order of learned lower appellate court
remanding the case and directing the trial
court to record the statement of the accused
appellants under section 313 Cr.P.C. in
accordance with law, does not suffer with
any illegality or material irregularity so as to
warrant the interference of this Court in
exercise of its revisional jurisdiction. This
revision is, therefore, devoid of any merit
and is, accordingly, dismissed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2010

BEFORE
THE HON'BLE S.C. CHAURASIA, J.

Civil Revision No.127 of 2008

Smt. Tahira Beghum

 ...Petitioner
Versus
Additional District Judge/Court No. 2
Raebareli

 ...Respondent

Counsel for the Petitioner:
Sri Avadhesh Shukla

Counsel for the Respondent:
Sri Atiya Abid
Mohd. Abid Ali

Code of Civil Procedure-Section-115(III)
(I) and (II)-Revision-by impugned Order
amendment
application
allowed-by
which neither admission withdrawn nor
changed the nature of suit but a man on
additional plea taken-Revisionist has
been given opportunity to file additional
written
statement-held-can
not
be
interfered under revisional jurisdiction.

Held: Para 20

Sub-section (3) of Section 115 C.P.C., as
applicable in State of U.P., clearly
indicates that the superior court shall
not vary or reverse any order made
except when the impugned order comes
within the purview of sub-clause (i) or
sub-clause (ii) of sub-section (3). In the
instant case, the plaintiffs' application
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for amendment in the plaint has been
allowed.
If
the
said
amendment
application would have been rejected
and the order would have been passed in
favour of the revisionist/defendant, the
appeal would not have been disposed of
finally. On the other hand, if the
impugned order is allowed to stand, it
would neither occasion a failure of
justice nor would cause irreparable
injury to the revisionist/defendant. This
view has been fortified by the principles
of law laid down by the Hon'ble Supreme
Court in the case of Prem Bakshi &
others (supra) and Baldev Singh & others
etc.
(supra).
Besides
it,
the
revisionist/defendant
has
also
been
provided an opportunity to file additional
written statement to the amended plaint
vide impugned order dated 12.08.2008.
Since the impugned order does not come
within the purview of sub-clause (i) or
sub-clause (ii) of sub-section (3) of
Section 115 C.P.C., no interference is
called for in the said order by this Court
in exercise of it's revisional powers.
Case law discussed:
2005(23) LCD 1250, 2006(24) LCD 874,
2007(25) LCD 1756, 2006(24) LCD 1705, AIR
1979.

(Delivered by Hon'ble S.C. Chaurasia, J.)

1. This Civil Revision under Section
115 of the Code of Civil Procedure has
been preferred against the impugned order
and the formal order dated 12-08-2008
passed by the learned Additional District
Judge, Court No. 2, Raebareli, in Civil
Appeal No. 09 of 2007, Liyakat Khan and
others Versus Tahira Begum and another,
whereby,
he
allowed
the
appellants/plaintiff's' application 20-Ka
for amendment in the plaint on payment
of Rs.500/- as cost.

2. The brief facts, giving rise to this
revision, are that the plaintiffs filed O.S.
No. 781 of 1999, Liyakat Khan and others
Versus Smt. Tahira Begum and another,
for partition in the court of Civil
Judge(Junior Division), Sadar Raebareli
with the prayer that plaintiff's' 2/3rd share
in the disputed property may be partitioned
and separated on the ground that parties
ancestor Sri Mardan Khan had acquired the
property in suit, detailed and described in
the plaint and parties have inherited the
said property in accordance with the
provisions of Mohammedan Law and they
are joint owners in possession of the said
property. In the said property, the plaintiffs
have 2/3rd share and the defendants have
1/3rd share. Their share may be partitioned
and separated as the defendants are not
ready for mutual partition. The defendants
filed Written Statement and denied the
plaintiffs' version. Their version is that the
defendants along with family members are
residing in the property in suit for the last
about 50 years and the plaintiffs and their
family members are residing in the house
of their share situated at village-Pure
Meharvan Khan Ka Purva, hamlet of oya,
Tahsil-Maharajganj,District-Raebareli.
Abdul Majid Khan was the owner of
disputed house, who was the maternal
grand-father of the defendant. Smt. Sabira
Bibi was the daughter of Abdul Majid
Khan and defendant no. 1 is the daughter
of Smt. Sabira Bibi. The marriage of
Sabira Bibi was performed with Mardan
Khan and Mardan Khan died during life
time of Sabira Bibi. Thus, Sabira Bibi
became the sole owner of the house of
Abdul Majid Khan and Mardan Khan did
not become the owner of the said house.
Smt. Sabira Bibi provided the house in suit
to her daughter, defendant no. 1, through a
will deed dated 07-05-1992. Mardan Khan
was the resident of Village-Pure Meharvan
Khan Ka Purva, district-Raebareli and he
provided the house situated there to his
sons, Kasim and Liyakat and they are
2 All] Smt. Tahira Begum V Additional District Judge/Court No. 2 Raebareli
541
residing in the said house alongwith their
family members. Sri Mardan Khan was
never the owner of the disputed house. The
defendant is the owner in possession of the
said house as per terms of the will deed.
The plaintiffs have no share in the said
house and hence, the suit for partition is
liable to be dismissed.

3. On the pleadings of the parties,
learned Civil Judge (Junior Division),
Raebareli, framed three issues. After
considering the evidence produced by the
parties, learned Civil Judge held that the
plaintiffs have failed to establish that the
property in suit was acquired by Mardan
Khan and the plaintiffs have 2/3rd share in
the said property. Consequently, the suit
was dismissed vide judgment and order
dated 27-02-2007 passed by the learned
Civil Judge (Junior Division), Raebareli.
Feeling aggrieved by the said judgment
and decree, the plaintiffs preferred a Civil
Appeal No. 09 of 2007, Liyakat Khan and
others Versus Smt. Tahira Begum and
another, in the court of District Judge,
which was transferred to the court of
Additional District Judge, Court No. 2,
Raebareli.

4. During pendency of the appeal, an
application under Order 6 Rule 17
readwith Section 151 C.P.C. was moved
on behalf of the appellants-plaintiffs for
amendment in the plaint on the ground that
the parties are related to late Mardan Khan
and his wife Smt. Sabira Bibi and they
have inherited the property left by them
jointly or severally. If it is found that the
disputed property was acquired by late
Smt. Sabira Bibi, parties are entitled to get
their respective share by decree of partition
and
hence,
proposed
amendment
is
essential
and
after
amendment,
no
additional evidence is required. The
plaintiffs have sought amendment in para
2 of the plaint to the effect that it may be
added that "Yadi Sampatti Vad Swargiya
Sabira Bibi Ki Arjit Bad Mrityu Chhodi
Sabit Pai Jaye To Bhi Pakshkar Swargiya
Mardan Khan Ankit Sajra Ki Arjit Va
Bad Mrityu Chhodi Sampatti Ke Saman
Hi Hissa Bantwara Se Pane Ke Hakdar
Honge."

5. The respondent No.1/defendant
filed objection against the said application
to the effect that after dismissal of the
suit, the plaintiffs want to introduce in the
plaint that if it is found that the property
in suit was acquired by Smt. Sabira Bibi,
even then, the plaintiffs are entitled to get
partition. The self-contradictory plea
cannot
be
introduced
by
way
of
amendment. The plaintiffs cannot be
permitted to withdraw the admission
made by them earlier. The amendment
application is liable to be rejected.

6. After considering the record and
hearing the learned counsel for the
parties, learned Additional District Judge,
Court No. 2, Raebareli, allowed the
appellants/plaintiffs' application 20-Ka for
amendment in the plaint, as referred to
above, vide order dated 12-08-2008.
Feeling aggrieved by the said order the
defendant no. 1, Smt. Tahira Begum, has
preferred this revision.

7. I have heard Sri Avadhesh
Shukla,
learned
counsel
for
the
revisionist, Sri Mohd. Abid Ali, learned
counsel for the opposite parties nos. 3 to
11 and perused the record.

8.

Learned
counsel
for
the
revisionist has submitted that the said
facts were within the knowledge of the
plaintiffs,
but,
the
application
for
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
amendment in the plaint has been moved
after dismissal of the suit and during
pendency of the appeal, which is not in
consonance with the proviso appended to
order VI Rule 17 of the Code of Civil
Procedure, but, inspite of it, learned
appellate
court
has
allowed
the
amendment application; that the plaintiffs
cannot
be
permitted
to
withdraw
admission made by them earlier; that the
learned appellate court has committed
illegality and material irregularity in
exercise of its jurisdiction by allowing the
amendment application and hence, the
impugned order is liable to be set aside. In
support of his contentions, he has placed
reliance on the following decisions of the
Hon'ble Supreme Court as well as of this
court:-

1. [2005(23) LCD 1250] Supreme
Court,
Salem
Advocate
Bar
Association, Tamil Nadu Versus Union
of India.

2. [2006(24) LCD 874] Allahabad
High Court, Ali Jan Versus 2nd
Additional District Judge and Others.

3. [2007(25) LCD 1756] Supreme
Court, Ajendra Prasad Ji N.Pandey
And Another Versus Swami Keshav
Prakash Das Ji N. And Others.

9. Learned counsel for the opposite
parties nos. 3 to 11 has submitted that the
revision is not maintainable against the
impugned order of the appellate court;
that by way of amendment, legal plea has
been taken on the basis of admitted facts;
that Smt. Sabira Bibi was not competent
to execute the will deed in respect of
whole property and she could execute the
will deed in respect of 1/3rd portion of the
said property only in accordance with the
provisions of Mohammedan Law; that no
admission has been withdrawn by the
plaintiffs by way of amendment and an
alternative plea is being taken; that the
order passed by the learned appellate
court is perfectly valid and it calls for no
interference. In support of his contentions,
he has placed reliance on the following
decisions of the Hon'ble Supreme Court
as well as of this court:-

1. [2006(24) LCD 1705] Supreme
Court, Baldev Singh and Others Etc.
Versus Manohar Singh And Another
Etc.

2. AIR 1979 Allahabad 218 (Full
Bench) M/s. Jupiter Chit Fund (Pvt.)
Ltd., Versus Dwarka Diesh Dayal and
Others.

10. In the case of M/s. Jupiter Chit
Fund (Pvt.) Ltd.(Supra), Hon'ble Supreme
Court in para nos. 22,23 & 34 of its
judgment has held as under :-

22. An appeal or a revision is for
some purposes treated as a continuation
of a suit. The appeal or the revision is the
case which arises out of the suit. But
when the appeal or the revision is
decided, such decision creates a different
or a fresh case which arises out of the
appeal or the revision. It has an identity
and existence different and apart from the
case which arose out of the suit.

23. It is settled law that a judicial
order passed by the trial court merges in
the order passed by the appellate or
revisional court : Shankar Ramchandra
Vs. Krishnaji Dattatraya (AIR 1970 SC
1). How can it be said that an appellate or
revisional decision in which the decision
of the trial court has merged, is still a
2 All] Smt. Tahira Begum V Additional District Judge/Court No. 2 Raebareli
543
case arising out of the original suit. After
merger, that case, i.e. the decision arising
out of the original suit vanishes. The
decision of the appeal or revision brings
into existence a case which can properly
be said to be arising out of the appeal or
revision. The decision of an appeal or
revision is hence not amenable to the
revisional jurisdiction under S. 115 even
after the amendment in 1973.

34.

The
words
"or
other
proceedings" in the phrase "cases arising
out of original suits or other proceedings"
refer to proceedings of final nature. These
words have been added in order to bring
within the purview of the revisional
jurisdiction orders passed in proceedings
of an original nature, which are not of the
nature
of
suits,
like
arbitration
proceedings. This phrase cannot include
decisions of appeals or revisions; because
then the legislature will be deemed to
have contradicted itself. The words "or
other proceedings" have to be read
ejusdem generis with the words "original
suits." They will not include appeals or
revisions.

11. In the instant case, the
amendment application has been allowed
during the pendency of the appeal.
Neither the appeal has been disposed of
finally nor the order of the learned Trial
Court has merged in the order of the
appellate court. Hon'ble Supreme Court
has held that the decision of the appeal or
revision is not amenable to the revisional
jurisdiction under Section 115 C.P.C., but,
in the instant case, the order passed during
the pendency of the appeal has been
impugned in the present revision. The
appeal is treated as continuation of the
suit. Since, the appeal has not been
disposed of finally and the impugned
order has been passed during the
pendency of the appeal, I am of the
definite
view
that
the
revision
is
maintainable against the impugned order
and the decision of the Hon'ble Supreme
Court relied upon by the opposite parties
is of no help to them. Besides it, Section
115 C.P.C. has been amended, as
applicable in U.P., w.e.f. 01-07-2002. The
contention of the learned counsel for the
opposite parties that the revision is not
maintainable stands rejected.

12. Learned counsel for the
revisionist has placed reliance on para 27
of the judgment rendered by Hon'ble
Supreme Court in the case of Salem
Advocate Bar Association, Tamil Nadu
(Supra) and the same may be quoted as
under:-

27. Order VI Rule 17 of the Code
deals with amendment of pleadings. By
Amendment Act 46 of 1999, this provision
was deleted. It has again been restored by
Amendment Act 22 of 2002 but with an
added proviso to prevent application for
amendment being allowed after the trial
has commenced, unless Court comes to
the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial. The proviso, to some extent, curtails
absolute discretion to allow amendment
at any stage. Now, if application is filed
after commencement of trial, it has to be
shown that in spite of due diligence, such
amendment could not have been sought
earlier. The object is to prevent frivolous
applications which are filed to delay the
trial. There is no illegality in the
provision.

13. In the case of Ajendra Prasad Ji
N.Pandey and Another (Supra), Hon'ble
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Supreme Court has held that the date of
settlement of issues is the date of
commencement of trial and it has to be
shown that the matters now sought to be
introduced by the amendment could not
have been raised earlier inspite of due
diligence.

14. In the case of Ali Jan (Supra),
Hon'ble Single Judge of this court has
held in para 10 of its judgment as under:-

10. Having heard learned counsel
for both the parties, I am of the opinion
that the amendment sought by the
petitioner was not only delayed but also
with an intention to resile from the earlier
evidence and the evidence which had been
given by him earlier would definitely be
contradictory to the amendment which he
was seeking. In my opinion, both the
Court below committed no illegality in
dismissing the petitioner's application for
amendment.

15. In the case of Baldev Singh and
others
etc.(Supra),
Hon'ble
Supreme
Court has held that it is well settled by
various decisions of this court as well as
the High Courts in India that courts
should be extremely liberal in granting the
prayer for amendment of pleadings unless
serious injustice or irreparable loss is
caused to the other side.

16. In paras nos. 2,3,5, & 6 of the
Judgment, reported in 2002 (1) AWC 484
(SC), Prem Bakshi and Others Versus
Dharam Dev and Others, the Hon'ble
Supreme Court has held 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
C.P.C. 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
2 All] Smt. Tahira Begum V Additional District Judge/Court No. 2 Raebareli
545
order deciding an issue, in the course of a
suit or other proceedings."

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.

5. The proviso to sub-section (i) of
Section 115 puts a restriction on the
powers of the High Court inasmuch as the
High Court shall not, under this section,
vary or reverse any order made or any
order deciding an issue, in course of a
suit or other proceedings except where (i)
the order made would have finally
disposed of the suit or other proceedings
or, (ii) the said order would occasion a
failure of justice or cause irreparable
injury to the party against whom it is
made. Under Clause (a), the High Court
would be justified in interfering with an
order of a subordinate court if the said
order finally disposes of the suit or other
proceeding. By way of illustration, we
may say that if a trial court holds by an
interlocutory order that it has no
jurisdiction to proceed with the case or
that suit is barred by limitation, it would
amount to finally deciding the case and
such order would be revisable. The order
in question by which the amendment was
allowed could not be said to have finally
disposed of the case and, therefore, it
would not come under Clause (a).

6. Now the question is whether the order
in question has caused failure of justice
or irreparable injury to respondent No. 1.
It is almost inconceivable how mere
amendments of pleadings could possibly
cause failure of justice or irreparable
injury to any party. Perhaps the converse
is possible, i.e. refusal to permit the
amendment sought for could in certain
situations result in miscarriage of justice.
After all, amendments of the pleadings
would not amount to decisions on the
issue involved. They only would serve
advance notice to the other side as to the
plea, which a party might take up. Hence,
we cannot envisage a situation where
amendment of pleadings, whatever be the
nature of such amendment, would even
remotely cause failure of justice or
irreparable injury to any party.

17. Section 115 C.P.C. has been
amended
w.e.f.
01-07-2002
in
its
applicability to the State of U.P. and the
same may be quoted as under :-

"115. Revision.-(1) A superior court
may revise an order passed in a case
decided in an original suit or other
proceeding by a subordinate court where
no appeal lies against the order and
where the subordinate court has -

(a) Exercised a jurisdiction not vested in
it by law; or
(b) Failed to exercise a jurisdiction so
vested; or
(c) acted
in
the
exercise
of
its
jurisdiction illegally or with material
irregularity;

(2) A revision application under
sub-section (1), when filed in the High
Court, shall contain a certificate on the
first page of such application, below the
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
title of the case, to the effect that no
revision in the case lies to the district
court but lies only to the High Court
either because of valuation or because the
order sought to be revised was passed by
the district court.

(3) The superior court shall not,
under this section, vary or reverse any
order made except where,-

(i) 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
(ii) The order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against
whom it is made.

(4) A revision shall not operate as a stay
of suit or other proceeding before the
court except where such suit or other
proceeding is stayed by the superior
court.

Explanation I.- In this section,-

(i) The expression ''superior court'
means-
(a) the district court, where the valuation
of a case decided by a court subordinate
to it does not exceed five lakh rupees;
(b) the High Court, where the order
sought to be revised was passed in a case
decided by the district court or where the
value of the original suit or other
proceedings in a case decided by a court
subordinate to the district court exceed
five lakh rupees;

(ii) The expression ''order' includes an
order deciding an issue in any original
suit or other proceedings.

Explanation II.- The provisions of this
section shall also be applicable to orders
passed, before or after the commencement
of this section, in original suits or other
proceedings
instituted
before
such
commencement."

18. The case of Prem Bakshi and
others (Supra) was decided by the Hon'ble
Supreme Court on January 09,2002, but,
the amended provision of Section 115
C.P.C. has been enforced in the State of
U.P. w.e.f. 01-07-2002. On comparison of
Section 115 C.P.C., I find that the proviso
(a) and (b) of unamended Section 115
C.P.C. are pari materia with that of subsection (3) of amended Section 115 C.P.C.,
as applicable in the State of U.P. Hence,
the principle of law laid down by the
Hon'ble Supreme Court is still good, even
after the amendment in Section 115 C.P.C.
by the State of U.P.

19. In the instant case application for
amendment in the plaint has been moved
after dismissal of the suit and during the
pendency of the appeal. After considering
the objection of the defendant, learned
Appellate Court has held that the proposed
amendment
is
not
amounting
to
withdrawal of admission, but, it is an
additional version/plea. It has further held
that the application for amendment in the
pleading cannot be rejected merely on the
ground of delay and it can be allowed even
at the appellate stage and the nature of suit
would not change by the proposed
amendment and it would resolve the
controversy
between
the
parties
effectively. No amendment has been
sought in the prayer clause and it would
not change the nature of suit for partition.
The contention of the learned counsel for
the opposite parties is that the proposed
amendment has been sought on the basis of
2 All] Nagesh Singh V State of U.P. and others
547
admitted facts and no additional evidence
is required. He has further submitted that
Smt. Sabira Bibi was not competent to
execute the will in respect of the whole
property and she could execute the will
deed only in respect of 1/3rd portion of the
said house, as per the provisions of
Mohammedan Law. The merits of the
amendment
application
cannot
be
considered by the appellate court at the
time of its disposal and the said point has
to be considered by the concerned court at
an appropriate stage. It appears that no
admission made by the plaintiffs, has been
withdrawn by way of amendment. Instead
of it, additional plea has been taken by the
plaintiffs to get their alleged share
partitioned. It is true that the learned
appellate court has not considered the
impact of proviso appended to Order VI
Rule 17 of C.P.C. specifically in it's order.
Now the point for determination is as to
whether any interference can be made in
the impugned order by this court in
exercise of it's revisional powers under
Section 115 C.P.C.

20. Sub-section (3) of Section 115
C.P.C., as applicable in State of U.P.,
clearly indicates that the superior court
shall not vary or reverse any order made
except when the impugned order comes
within the purview of sub-clause (i) or subclause (ii) of sub-section (3). In the instant
case,
the
plaintiffs'
application
for
amendment in the plaint has been allowed.
If the said amendment application would
have been rejected and the order would
have been passed in favour of the
revisionist/defendant, the appeal would not
have been disposed of finally. On the other
hand, if the impugned order is allowed to
stand, it would neither occasion a failure of
justice nor would cause irreparable injury
to the revisionist/defendant. This view has
been fortified by the principles of law laid
down by the Hon'ble Supreme Court in the
case of Prem Bakshi & others (supra) and
Baldev Singh & others etc. (supra).
Besides it, the revisionist/defendant has
also been provided an opportunity to file
additional
written
statement
to
the
amended plaint vide impugned order dated
12.08.2008. Since the impugned order does
not come within the purview of sub-clause
(i) or sub-clause (ii) of sub-section (3) of
Section 115 C.P.C., no interference is
called for in the said order by this Court in
exercise of it's revisional powers.

21. .In view of the aforesaid
discussion, I am of the view that this
revision lacks merit. Consequently, it is
dismissed with costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE ANIL KUMAR, J.

Special Appeal No. 182 of 2010

Nagesh Singh

 ...Appellant
Versus
State of U.P. and others ...Respondents

Constitution of India Art.-226-Right to
Continue
in
Service-Contractual
appointment-extended
from
time
to
time-on
certain
complaint
by
local
M.L.A.-extension refused-Single Judge
rightly declined to interfere-Contractual
appointee has no right to continueAppeal dismissed.

Held: Para 18
Keeping
in
view
the
facts
and
circumstances stated hereinabove the
reply to the said question would be in
negative. As the appointment of the