Judgment:
A. Pasayat, Acting C.J.
1. Order passed by learned District Judge, Puri reversing order passed by learned Civil Judge (Senior Division), Puri and thereby rejecting prayer for amendment of the plaint in terms of Order 6, Rule 17 of Code of Civil Procedure, 1908 (in short, 'CPC') is the subject-matter in this writ application.
2. Factual position in a nut-shell is as follows :
Petitioner as plaintiff has filed the suit (O.S. No. 61 of 1994) for partition. During pendency of the suit, an application was filed under Order 6, Rule 17, CPC for amendment of the plaint. By amendment, plaintiff wanted to include certain properties. The properties involved were (a) those transferred by his grandfather in favour of defendant No. 1 (opp. party No. 1) under registered gift deed dated 17.1 2.1958 and (b) transfer made by defendant No. 2 in favour of defendant No. 1 under a registered sale deed No. 7823 dated 30.8.1972 transferring 'Sevapali' of two days in respect of temple Lord Jagannath. Learned Civil Judge (Sr. Dvn.), Puri accepted prayer. The order was challenged by defendant No. 1 (opp. party No. 1 herein) before learned District Judge, Puri who held that the proposed amendment changed the foundation of the suit, converting the suit for partition into a suit of totally different character. It was held that trnasfers made in favour of defendant No. 1 on 19.12.1958 and 30.8.1972 are required to be avoided in a separate suit.
3. Learned counsel for petitioner submitted that prayer for amendment has to be liberally construed and unless substratum of the suit is changed, it ought not to be refused. According to him, all the issues connected with dispute are to be resolved in one suit to avoid multiplicity of proceeding. Learned trial Judge has correctly appreciated the position and allowed prayer for amendment and erroneously, the same was set aside by learned District Judge. Learned counsel for defendants-opp. parties submitted that though there cannot be any dispute that an application for amendment has to be liberally dealt with, yet when the very foundation of the suit is sought to be changed by introduction of distinct and separate cause of action it cannot be accepted. If amendment is prayed for is allowed, suit of entirely different character would be the result and as such prayer has to be rejected.
It is stated that late Lokanath Das Mohapatra, grand-father of plaintiff and the plaintiff had purchased certain property from the original owner under a registered sale deed. The said property was the self acquisition. Late Lokanath Das Mohapatra transferred the land in favour of defendant No. 1 (opp. party No. 1 herein) under a registered gift deed. During life time of Lokanath, the suit for partition being P.S. No. 2 of 1963 had been filed to which both Lokanath and his sons i.e. defendants 1 and 2 were parties. Properties in question had not been included as a subject- matter of partiability in the suit, as the same were not part of the joint family property. On 30.8.1972, defendant No. 2, father of the plaintiff, had transferred 'Sevapali' in respect of temple Lord Jagannath in favour of defendant No. 1. In absence of any specific prayer transfer cannot be avoided, and if amendment is allowed, the same will change valuable legal rights of defendants. Alienation cannot be set aside being barred by law of limitation as there was completed partition between Lokanalh Das Mohapatra and his sons i.e. defendants 1 and 2. Plaintiff has no right to either re-open or assail alienations more particularly when defendant No. 2 has not challenged them till date. Finally has to be attained in respect of the transactions.
4. At this juncture reference to the averments made in the application for amendment would be appropriate. A bare reading of the application shows that it is extremely vague and confusing. The proposed amendment as set out in the application inter alia reads as follows :
'xx xx xx
That during pendency of the suit, the plaintiff could learn that the defendant No. 1 (one) has managed to obtain two gift deeds alleged to have been made by the plaintiff's grandfather late Lokanath Das Mohapatra in respect of joint family properties.'
(Underlining for emphasis)
During the course of hearing of the writ application, learned counsel for petitioner fairly accepted that it was intended to bring on record two deeds, one of them being a gift deed and the other a sale deed. It has also been fairly accepted that no description of document relating to any gift deed has been given. It has been submitted that reference has been made to a sale deed. i.e. R.S.D. No. 7823 executed in the year 1972. It is of relevance to note that the sale deed was executed by plaintiff's father and not grand- father as quoted in the extracted portion as referred to above. This itself goes to show vagueness of the averments. At the time of hearing of the writ application, petitioner cannot be permitted to say that there were mistakes in the averments, and in fact not two gift deeds, but one gift deed and one sale deed were sought to be referred to. It has also to be noted that there is no prayer either in the original plaint or in the application for proposed amendment, relating to validity of the deeds. Even if it is accepted that the plaintiff-petitioner intended to refer to a sale-deed and a gift-deed and not two gift deeds as stated in the application for amendment, yet in the absence of any challenge to the validity thereof no effective result can emerge from the amendments sought to. be introduced. It is fairly accepted by the learned counsel for petitioner that in the application for amendment no prayer was sought to be introduced to invalidate the transactions covered by the deeds. It is, however, stated that the transactions being void no reference to the same was felt necessary. This plea is without any substance. The transactions were not per se void. As has been observed by the Apex Court in Nachubachmani Prasad Narain Singh v. Ambica Prasad Singh (dead) by his Legal Representatives and Ors. : AIR 1971 SC 776. alienation by Manager of Joint Hindu Family even without legal necessity is voidable and not void.
5. Approach of the Courts while dealing with the question whether amendment is to be allowed would depend upon the parameters indicated in Order 6, Rule 17, CPC. Essentially the principles governing the amendment of plaints are as follows :
(i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit.
(ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject- matter of controversy in the suit is not permissible.
(iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts or mutuality destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment.
(iv) In general the amendments should not cause prejudice to the other side which cannot be compensated in costs.
(v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case.
6. It is to be noted that in Laxmidas Dayabhai Kabrawalla v. Manabhai Chunilal Kabrawala and Ors. : AIR 1964 SC 11 it was observed as follows :
'It is. no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed.'
The position was reiterated in Radhika Devi v. Bajrangi Singh and Ors. (1996) 7 SCC 486. The latter case related to amendment of pleadings seeking to take away right of the opp. party acquired by bar of limitation. That was the case where gift deed was executed and registered in favour of respondents 16 to 20. In that case partition was filed in 1988. Written statement was filed specifically stating about the gift made in their favour. Ultimately an application under Order 6, Rule 17, CPC was filed in November, 1992 seeking declaration that the gift deed was obtained by respondents illegally and fraudulently and therefore, it was ineffective and not binding on the appellant. By that time the suit for declaration within three years from the date of knowledge became time barred.
7. Scope of exercising jurisdiction under Articles 227 of the Constitution of India is very limited, particularly when challenge is to a revisional order passed under Section 115, CPC. A question often posed is whether a writ application is maintainable against an order passed in civil revision. An identical question came up for consideration of the apex Court in Mahadeo Savlaram Sheika and Ors. v. Pune Mechanical Corporation and Anr. : (1995) 3 SCC 33. Dealing with the matter, the Apex Court observed as follows :
'Shri Rajinder Sachar, learned Senior Counsel for the appellants contended that Under Section 115, CPC. High Court has power of revision where the appeal is not provided for either to it or subordinate Court. Since the Joint Judge had exercised the appellate power, by operation of Section 115(2), the High Court was devoid of jurisdiction to exercise the revisional power. When statutory prohibition was imposed by CPC which is a more expeditious and efficacious remedy, the exercise of jurisdiction by the High Court under Article 226 was not warranted. At this juncture it is necessary to point out that the High Court exercised its power under Article 227 and not either under Article 226 or under Section 115, CPC. Even otherwise the bar under Section 115(2) is to exercise revisional power where the party is provided with right of appeal to the High Court or the Subordinate Court against the impugned order. It is not a bar to exercise revisional power under Section 115(1) against appellate order. The ratio in Aundel Animal v. Sadasivan Pillai : (1987) 1 SCC 183 is that no second revision Under Section 115(1) would lie against revisional order of the subordinate Court.'
8. It is pleaded by the opp. parties that power under Article 227 is not to be exercised in a routine manner. There can be no dispute to that proposition. Power under Article 227 is intended to he used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and Tribunals within bounds of their authority, and not for correcting mere errors. A mere wrong decision without anything more is to attract jurisdiction of High Court under Article 227. The supervisory jurisdiction conferred under the said Article is limited seeing that an inferior Court or Tribunal functions within the limits of its authority. In exer.cising the supervisory power, the High Court does not act as an appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors in the decision. The power of superintendence being extraordinary is to be exercised most sparingly and only in appropriate cases. The power of superintendence is not intended to confer in the High Court an unlimited prerogative to interfere in every case where a wrong decision has been arrived at by a judicial or quasi-judicial, Court or Tribunal, either on fact or in law. The High Court will refuse to issue any writ in the event it is found that substantial justice has been done to the parties or in larger interest it would not be prudent to issue such a writ.
Looked at from any angle, there is no merit in the writ application, which is accordingly dismissed. No costs.
C.R. Pal, J.
9. I agree.