@JUDGMENTTAG-ORDER
Shiv Dayal, J.@mdashThis revision has come up in the following circumstances.
2. Shrimati Rampyari instituted a suit against Ishwar and Hiradhar for declaration that certain sale deeds are ineffective as against her and also for partition of lands in suit. The plaintiff valued the suit at Rs. 10,000 and instituted it in the Court of Civil Judge, Class I, Raigarh.
3. The defendants while resisting the suit objected to the jurisdiction of the Court alleging that the suit was under-valued. Issue number 8 was framed. The trial Court held that the value of the suit for the purposes of jurisdiction was Rs. 14,190. Since it exceeded the pecuniary limit of the trial Court''s jurisdiction, it directed the plaint to be returned for presentation to proper Court.
4. The plaintiff appealed.
5. During the pendency of the appeal in the appellate Court, the plaintiff made an application for leave to amend the plaint. The appellate Court remanded the case to the trial Court along with the application for leave to amend the plaint. Aggrieved by that order of the appellate Court, the defendants filed a revision (No. 122 of 1973) which was decided by Mr. Justice Tankha on April 30, 1973. The order of remand was set aside and the appellate Court was directed to decide the application for amendment and also the appeal.
6. When the case went back to the appellate Court, what it did was that it heard the appeal on merits as also heard the parties on the application for leave to amend the plaint. Having done that, the appellate Court, by an order dated December 7, 1973, partly allowed the application for amendment and partly rejected it. Thereafter by its final order dated December 13, 1973, the appellate Court allowed the appeal, holding that the trial Court had jurisdiction to try the suit and sent back the case to it.
7. It was after the disposal of the appeal that this revision was filed in this Court challenging the earlier order dated December 7, 1973. This revision was admitted by a learned single Judge, and proceedings in the trial Court were stayed.
8. Shri Naik, learned counsel for the plaintiff petitioner contends that the order passed by the appellate Court refusing leave to amend the plaint was in utter disregard of Supreme Court decisions. He relies on
9. Shri Dabir''s preliminary objection is that after the disposal of the appeal by the learned Additional District Judge, this Court cannot interfere in revision to set aside the earlier order dated December 7, 1973 regarding petitioner''s-application for leave to amend the plaint. The objection is that the earlier order has already merged in the final order so that the only remedy to the plaintiff now available is to prefer an appeal from the final order dated December 13, 1973.
10. It seems to me clear that it will always depend upon the facts and circumstances of each case whether an interlocutory order has merged in the final order or not. There is no hard and fast rule that every interlocutory order necessarily merges in the final judgment or order so that the only remedy open is to prefer an appeal against the final order just as there is no rigid rule that an order must necessarily merge in the order of the superior Court (appellate or revisional). It was laid down by their Lordships in
But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.
Their Lordships'' earlier decisions in State of U.P. v. Mohammad Nooh AIR 1958 SC 86 and
11. In the present case there are two peculiar circumstances. Firstly, the point is analogous to the rejection of an application u/s 5 of the Limitation Act which is followed by order dismissing an appeal as barred by time. If the earlier order rejecting the application u/s 5, merges in the judgment of the appellate Court dismissing the appeal as time barred, the only remedy would be a further appeal from the appellate decree and in that further appeal to assail the order of the first appellate Court on the application u/s 5 of the Limitation Act. This will be cumbersome and unjust. The view that I take was also taken by Mr. Justice C.A. Vaidiyalingam (as his Lordship then was) in Mathew Kuruvilla v. Rajagopala Iyer 1966 KLT 916 from which the following passages may be reproduced :--
......According to the learned counsel the order under attack is one passed rejecting an application filed u/s 5 of the Limitation Act. In consequence of this order, the appeal itself has been dismissed and therefore the proper remedy that was available and that should have been adopted by the petitioner was not to challenge the order passed in revision in this Court u/s 5 of the Limitation Act but inasmuch as the order dismissing the appeal amounts to a decree, the petitioner should have filed a further appeal in this Court challenging the decree itself, in which appeal this Court can go into the question as to whether the order was correct or not.
I am not inclined to accept this very large contention raised by the learned counsel for the respondent.
The foundation for the order of the learned District Judge dismissing the appeal as filed out of time is really the order passed by the learned District Judge in C.M.P. No. 1105/63 dismissing the application filed by the petitioner u/s 5 of the Limitation Act.
If this Court is satisfied that the rejection of the application u/s 5 of the Limitation Act by the lower Court is net justified, in my opinion, the order of the learned District Judge dismissing the appeal based upon this order will be absolutely void and if the order under attack is set aside the legal consequences will be all those orders, will have no effect in law.
The ratio of Chappila and others v. Chemmaran and others 1960 KLT 1361 and Radhakrishnaru v. Madhavan Pillai 1961 KLT 3 was followed. With respect I concur in the above observations.
12. The second is that the earlier order dated December 7, 1973 is the foundation on which the subsequent order dated December 13, 1973 is based. If the appellate Court had granted leave to the plaintiff to amend the plaint so as to introduce his claim of Rs. 4.590 for mesne profits for the year 1960, the value of the suit on the plaintiff''s own showing would be Rs, 8,641.55 as held by the appellate Court plus Rs. 4,590.00, total Rs. 13,231.55 and since this amount exceeds the pecuniary limit of the trial Court''s jurisdiction, the appellate Court could not have passed that final order dated December 13, 1973, which it did. In that event, instead of remanding the case back to the trial Court, it would have returned the plaint to the plaintiff for presentation to the proper Court. See Lalji v. Narottam 1953 NLJ 321 = AIR 1953 Nag. 273.
13. In
The question whether, inspite of an applicant''s omission to pursue the remedy of appeal, the High Court ought to exercise its discretionary power of interference in revision, obviously depends on the special circumstances of each case. It has been held by Courts that it would be proper to interfere in revision where the existence of the alternative remedy is doubtful, or where the alternative remedy is inconvenient or is not efficacious or is barred, or where non-interference will lead to multiplicity of proceedings and unnecessary expense and delay, or result in grave injustice.
14. I am clearly of the view that this Court has jurisdiction to revise the order of the appellate Court dated December 7, 1973 inspite of the final order dated December 13, 1973 having been passed, if the earlier order was without jurisdiction or was passed in exercise of jurisdiction with illegality or material irregularity.
15. This brings me to the question whether the order under revision can be sustained. The position was this. The trial Court held that it had no pecuniary jurisdiction to try the suit and, therefore, directed return of the plaint. It was from that order that the appeal was pending in the district Court. It was in the appellate Court that the application for amendment was made. In Lalji v. Narottam, it has been held that if the Court has initial jurisdiction to try the suit, but an amendment is sought in the plaint which, if allowed, would oust the jurisdiction of the Court, the proper course is to return the plaint together with the application for amendment to the plaintiff for presentation to proper Court.
16. Left to me, I would have been of the opinion that a Court which has jurisdiction to try the suit as initially laid has jurisdiction to decide an application for leave to amend the plaint, and it is only if, as a result of the amendment being allowed, its jurisdiction is ousted that it has to return the plaint for presentation to proper Court. This will be unnecessary if amendment application is rejected. The course to be followed according to Lalji v. Narottam (supra) is that without considering application for amendment the Court, although it has jurisdiction to try the suit, has to return the plaint along with that application. If, on the plaint and application being so returned, the "proper Court" rejects the application, the plaint will again have to be returned to the plaintiff for presentation to the former trial Court. This procedure and ritual will be cumbersome and unnecessary. All this time will have been wasted. Moreover, there is no reason why the Court which has jurisdiction to try the suit as initially, laid could not decide the application for amendment. This view which I would have taken was taken also in Kundanmal v. Thikana Siryari AIR 1959 SC 146. However, unless the Division Bench decision in Lalji v. Narottam is overruled by a larger Bench, I am bound to follow it. In my opinion, the present case is not fit for being referred to larger Bench because the plaintiff will unnecessarily suffer. Mr. Justice Tankha appears to have taken the same view, which I would have taken as indicated above. Evidently enough the Division Bench case was not brought to his notice.
17. As it happened the appellate Court rejected that part of the amendment application (mesne profits for 1960) which, if allowed, would have ousted the jurisdiction of the trial Court. Thus to-day the trial Court has jurisdiction to try the suit. Now, to allow the revision will be to throw the plaintiff in difficulties.
18. The revision is dismissed. Parties shall bear their own costs.
