@JUDGMENTTAG-ORDER
1. The question involved in the civil revision petition is whether a Court has jurisdiction to allow an amendment of the plaint schedule on the ground of mistake after preliminary decree is passed in a partition suit.
2. It was directed to be posted before a Bench, as it was thought that the question was of sufficient importance involving one of procedure.
3. The facts material for the appreciation of the contentions arising in this petition may be briefly stated. The respondent filed a suit for partition and separate possession of a one-third snare in the plaint schedule properties. A preliminary decree was passed on 27-10-1952, and a Commissioner was appointed to partition the properties and the Commissioner went to the spot for partitioning the properties. Obstruction was offered so far as one item of the property covered by S. No. 171 was concerned.
The plaintiff thereafter filed a petition for substituting another item of property included in the S. Nos. 51/1, 52/2, 52/3 and 83 for S. No. 171, alleging that she had mentioned by mistake S. No. 171 as part of the joint family properties. This was opposed on the ground that the property sought to be substituted was not joint family property but was the stridhana property of the defendants. The objection was overruled and the application was allowed. It is against this order that the present civil revision petition has been filed.
4. In support of this petition, it is urged by Mr. Suryaprakasam that, after the preliminary decree is passed, the Court becomes functus officio and it has no jurisdiction to allow any amendment to that. In support of this contention, he relies upon Order 20, Rule 3, C. P. C. We do not think that Order 20, Rule 3 has any bearing on the enquiry. The question whether it is within the competence of a Court to order amendment after the preliminary decree is passed, is to be determined with reference to Section 153 and Order 6, Rule 17, C. P. C. Section 153 reads thus :
"The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or pending on such proceeding."
Order 6, Rule 17 provides :
"The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties,"
This rule empowers a Court to allow either party to alter or amend his pleadings at any stage or the proceedings etc." It implies that so long as the Court is in seisin of the proceedings, it is competent for it to allow amendment of the pleadings. Till the suit reaches the stage of final decree, the proceedings must be deemed to be pending in that Court with regard to a partition suit. The judgment of their Lordships of the Privy Council in
If the suit is not concluded by the passing of the final decree and is only at the stage of the preliminary decree, we think it is competent for the Court to allow amendment of the pleadings. See
Whether an amendment should be allowed in a particular case or not, is to be decided by the Court, having regard to the facts and circumstances of that case. It may be that in some cases the rights of third parties would be infringed by allowing such an amendment. These are all matters which have to be considered by the Court at the time of the hearing of an application for amendment. In these circumstances, we are of opinion that these provisions of law invest the Court with jurisdiction to allow an amendment even after the preliminary decree is passed in proper cases.
5. This leads us to the question whether it is open to the learned Subordinate Judge to straightway substitute one item of property for another without going into the merits of the objection, namely, whether the property sought to be substituted belongs to the joint family or is the stridhana property of the petitioner, This matter has not received the attention of the learned Subordinate Judge. The order must, therefore, be set aside and the matter remitted to the trial Court for deciding that question on the merits. Either party is at liberty to adduce evidence before the learned Subordinate Judge on the question of the character of the property. Costs will abide the result.
