Mehmood Ahmed Butt vs Mohd. Farooq Mughal And Others on 11 December, 2018

Jammu-and-Kashmir-High-Court

 

HIGH COURT OF JAMMU AND KASHMIR
                  AT JAMMU

CR No. 14/2018

                                         Date of order:11.12.2018
                         Mehmood Ahmed Butt
                                    Vs.
                    Mohd. Farooq Mughal and others

Coram:
        Hon'ble Mr Justice Tashi Rabstan, Judge
Appearance:
For the petitioner(s)     : Mr. Y.P.Koushal, Advocate
For the respondent(s)     : Mr. Rajneesh Oswal, Advocate
i/      Whether to be reported in          Yes.
        Press/Media?
ii/     Whether to be reported in          Yes.
        Digest/Journal?


1. This Revision Petition filed under Section 115 of the Code of Civil Procedure, 1977 is directed against the Orders dated 15.09.2017 and dated 09.10.2017, passed by the learned Sub Judge, Jammu (hereinafter referred to as the “Trial Court”) in a Civil Suit titled Mehmood Ahmed Bhat Vs. Mohd Farooq Mugal and others, whereby the applications moved by the petitioner under Order I Rule 10 of the Code of Civil Procedure (CPC for short) for impleadment and under Order VI Rule 17 CPC for amendment of his pleadings, have been dismissed. The facts, in nutshell, which have given rise to the filing of this Revision Petition are :-

2. The plaintiff has filed a Suit for Declaration to the effect that the Sale Deed dated 17.09.2011 and Sale Deed dated 08.10.2011 executed by defendant No.1 in favour of defendant No.2 and Sale Deed dated 07.10.2011 in favour of defendant No.2 and Sale Deed dated 07.10.2011 in favour of defendants No.3 and 4 executed by defendant No.1 are null and void, having no force of law and having been executed in violation of the terms of power of attorney given to defendant No.1 by the plaintiff and having exceeded the limit of authority given to defendant No.1, with consequential relief of permanent prohibitory injunction on the ground that the plaintiff is co-owner of land measuring 35 Kanals 8 Marlas, falling under Khasra No.303 and 303 min, situated at Village Mawa Karora and the plaintiff had given power of attorney to the defendant No.1 out of his share and the defendant No.1 has exercised the power of attorney and has sold the land exceeding his authority and executed two Sale Deeds and 02 Kanals 04 Marlas and 02 Sale Deeds of 04 Kanals each and it has come to the knowledge of the plaintiff that the defendant No.1 to 4 are approaching revenue authority for attestation of mutation in their favour and as such, the plaintiff has filed the suit.

3. It is contended that during pendency of the appeal, the plaintiff filed an application for impleadment under Order 1 Rule 10 CPC, application for amendment under Order 6 Rule 17 CPC and for further amendment on the ground that as per defendant’s written statement in paragraphs Nos. 1 and 2, co-owner, Mr. Sardar Mohd. and Mr. Dev Raj son of Sh. Ram Saran, have not been impleaded and plaintiff seeks to implead Ms. Dev Raj, S/O Ram Saran as defendant and that the plaintiff wants to add some paragraphs in the suit and by way of another application for further amendment by adding some more paragraphs. The said applications were controverted by the defendant.

4. I have gone through the record and also considered the arguments of both the Counsels.

5. In the instant Revision Petition impugned are Order dated 15.09.2017 as well as order dated 09.10.2017. By order dated 15.09.2017, the Trial Court dismissed the application for impleadment under Order 1 Rule 10 CPC, and application for amendment under Order 6 Rule 17 CPC dated 11.08.2014 and also the application for further amendment dated 24.03.2015. Later on, the Trial Court vide Order dated 09.10.2017 rectified the typographical errors as it existed in the Order dated 15.09.2017. The petitioner has challenged the orders impugned on the ground that the order impugned has resulted in miscarriage of justice and that the Court should have allowed the amendment to avoid incorporated some undisputed facts and to avoid multiplicity of proceedings.

6. Learned Counsel for the Petitioner has argued that the Court below has wrongly dismissed the application for amendment of plaint and for impleadment. Precisely, learned counsel has reiterated what has been narrated in the Revision Petition. On the other side, learned counsel for respondent has raised preliminary objection with regard to maintainability of the Revision Petition on the ground that the order impugned has not resulted in final disposal of the suit, therefore, the Revision Petition deserves to be dismissed.

7. Given the case set up and rival submissions of learned counsel for parties, it is necessary to have a look on Section 115 C.P.C. amended in the year 2009 and proviso was added to it. The proviso is reproduced as under:

“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 suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.”

8. So far as the instant Revision Petition is concerned, applying the test of above quoted proviso to Section 115 CPC to the case of the petitioner, impugned orders have not resulted in final disposal of main case. Any order passed during pendency of the suit to be revisable has to satisfy the test laid down under Section 115 (1) incorporated by the Amendment Act 2009, i.e., that the order impugned is of such a nature that if passed in favour of the party questioning the order, would have clinched the suit or other proceedings. The instant Revision Petition, in the said background, is not maintainable as the order passed in favour of the petitioner would not have finally decided the suit or other proceedings within meaning of Section 115 (1) proviso.

9. In a similar matter titled Mohammed Taraq Mir V/S Ghulam Qadir Bhat reported in 2011 (2) SLJ 873, it has been held that the order, dismissing application for amendment, is not revisable. On the same analogy dismissal of an application for impleadment of a party is not revisable.

10. In view of what has been stated above, the instant Revision Petition is not maintainable and as such the same is dismissed. In the present facts and circumstances, the parties shall bear their own costs.

Jammu                                          (Tashi Rabstan)
11.12.2018                                           Judge
(Madan-PS)

Hindu minor & guardianship Act





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