P.K. Balasubramanyan, C.J.
1. This revision is by the defendants in a suit for partition. The plaintiff, the opposite party herein, filed the suit claiming that he was the adopted son of one Badrinarayan Satapathy through his first wife. Defendant No. 1 claims to be the second wife of late Badrinarayan Satapathy and defendant No. 2 is her daughter through Badrinarayan Satapathy. Defendants 1 and 2 filed a written statement challenging the status of adopted son put forward by the plaintiff in the suit.
2. The suit was posted for steps and ultimately it was posted for 'hearing'. On that day, defendants 1 and 2 filed an application under Order 6. Rule 17 of the Code of Civil Procedure seeking to amend their written statement and seeking to include a counter claim seeking a declaration that the deed of adoption relied on by the plaintiff was void. It appears that the plea sought to be introduced is one of non-est factum. This application for amendment of the written statement was opposed by the plaintiff on whose behalf it was contended that an application for amendment could not be entertained since the suit was posted for 'hearing' in view of the amendment to Order 6, Rule 17 of the Code of Civil Procedure by Amendment Act 22 of 2002 which introduced the proviso to the said Rule and that in any event, the amendment prayed for would tend to displace the plaintiff from the position in which he was placed by the original written statement. The trial Court held that since the suit was posted for hearing, in view of Order 6, Rule 17 of the Code of Civil Procedure as amended by Act 22 of 2002, the amendment could not be allowed. No other aspect was discussed. Being aggrieved by that order of rejection of the application for amendment of the written statement, defendants 1 and 2 have filed this Revision.
3. At the outset, learned counsel for the plaintiff-opposite party submitted that the Revision was not maintainable in view of the amendment brought to Section 115 of the Code of Civil Procedure restricting interference in the Revision only in cases where the allowing of the Revision would result in the final disposal of the suit as a whole. Counsel relied on the decision of the Allahabad High Court in Debi Das (deceased) and etc. v. State of U.P. and Ors. (AIR 2003 Allahabad 14) wherein the Allahabad High Court held that an interim direction to maintain the status quo pending an application for injunction could not be challenged in Revision under Section 115 of the Code, after its amendment. Counsel also relied on a decision of the Karnataka High Court in K. R. Subbaraju v. M/s. Vasavi Trading Co. and Ors. (AIR 2002 Karnataka 407) wherein that Court held that even if the impugned order suffered from a jurisdictional error, the same could not be interfered with unless it could be shown or found that if the order were made in favour of the Revision Petitioner that would finally dispose of the suit. The decision of the Allahabad High Court appears to be distinguishable, the same having arisen from an interlocutory order in an interlocutory application under Order 39, Rule 1 of the Code of Civil Procedure and even before the amendment by Act 22 of 2002, that was seldom interfered with in exercise of jurisdiction under Section 115 of the Code of Civil Procedure. But, the decision of the Karnataka High Court relied on by the learned counsel is more in point. Therein, the effect of the amendment has been discussed. A literal reading of the proviso to Section 115 of the Code as it reads after Amending Act 22 of 2002, and the indication available by the dropping of Clause (b) of the proviso to the effect that interference was possible in case the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made, would justify the acceptance of the objection by the opposite party.
4. Order 6, Rule 17 of the Code of Civil Procedure confers wide powers on the Court to permit an amendment of the pleadings. It is based on the public policy that as far as possible, all disputes relating to a particular cause of action or subject matter, should be adjudicated upon in one suit, multiplicity of suits should be avoided and the parties should be permitted to agitate all their contentions in the same suit itself. In fact, the accepted principle is that the exercise of jurisdiction under Order 6, Rule 17 of the Code of Civil Procedure must be liberal and normally amendments ought to be allowed unless for a given reason it could not be permitted in any particular case. An additional approach to the cause of action could always be made by way of amendment even after expiry of the statutory period of limitation. (See S. K. Gupta & Sons v. Damodar Valley Corporation : AIR 1967 S.C. 96). Normally the Court should allow a party to put forward his entire case even by allowing an amendment either in support of the cause of action or in challenge to the claim made. The jurisdiction of the Court in the matter of allowing an amendment is recognised to be wide. While exercising that jurisdiction, if a Court fails to allow the amendment on a misconception of the proviso to Order 6. Rule 17 of the Code, the order passed by the Court could normally be interfered with in Revision. Why one of the provisos to Section 115 of the Code introduced by Act 104 of 1976 was deleted is not clear. Refusing to exercise jurisdiction under Section 115 of the Code in such a case would amount to perpetuating injustice and it would not be in furtherance of justice. In this case, what the trial Court has done is to reject the application on a misconception of the scope of the proviso to Order 6, Rule 17 of the Code of Civil Procedure as introduced by Act 22 of 2002. It thought that the expression 'after the trial has commenced' occurring in the proviso to Order 6, Rule 17 of the Code should be so read as to take within its sweep even the formal posting of the suit for what is termed 'hearing'. It is submitted that in this State, the trial is taken up when the suit is posted for hearing. Obviously, the application of the proviso is restricted to cases where the trial has commenced. It is submitted that trial commences at least when issues are framed and therefore, the Court below was justified in taking the view that this was the case in which the proviso applied. In my view, the proviso which even otherwise restricts the power of the Court to allow amendment of pleadings which it is expected to exercise liberally, should be strictly construed and the expression where the trial has commenced' should be read in a restricted sense. Of course, in a given context, the expression 'trial' may be of wider ramification (See O.P. Jain v. Gian Chand : AIR 1959 SC 837). But, the expression can be also have a restricted meaning, namely, when the taking of evidence is started. The Code has not defined the expression 'trial'. Considered in this context of the object sought be achieved by the conferment of power to allow amendment of pleadings, the restriction imposed by the proviso on that power should be limited to cases when the trial as it is generally known, viz, the examination of witnesses, has commenced. In the context of Order 6, Rule 17 of the Code of Civil Procedure and the object sought to be achieved by it, 1 think that such a restricted interpretation of the expression is warranted. Therefore, I am of the view that the trial Court was in error in refusing the amendment by resorting to the proviso to Order 6, Rule 17 of the Code. In other words, the trial Court failed to exercise the jurisdiction vested in it by law on its erroneous understanding of the proviso to Order 6, Rule 17 of the Code.
5. When such a jurisdictional error is committed by the trial Court, interests of justice would normally demand that the court exercising revisional jurisdiction should be in a position to correct such an error. But the proviso restricts that interference and limits it to cases where the exercise of jurisdiction would dispose of the suit finally. Obviously, allowing the amendment of the written statement cannot put an end to the suit. It is difficult to negative the argument on behalf of the opposite party that going by the proviso and the ratio of the decision of the Karnataka High Court, this Court cannot interfere in revision under Section 115 of the Code of Civil Procedure.
6. Under Article 227 of the Constitution of India, the High Court has the power of superintendence over the subordinate Courts and it is its duty or right to ensure that the subordinate Courts exercise their jurisdiction properly and correct them in cases where they have erroneously exercised their jurisdiction and have committed errors of jurisdiction. In the case on hand, the issue before the Court is the issue of the valid adoption claimed by the plaintiff in the suit. Defendants 1 and 2 in their written statement have questioned the adoption itself and also its validity. They have also challenged the deed of adoption relied on by the plaintiff. All that they have sought by way of the amendment is to introduce a counter claim in the written statement seeking a declaration that the deed of adoption is void and not binding on the first wife of Badrinarayan Satapathy. In my view, allowing of the counter claim would only clarify the real issue falling for the decision in the suit, namely, whether the deed of adoption was validly executed by the first wife of Badrinarayan Satapathy and whether the plaintiff was duly adopted, an issue which had already arisen out of the pleadings. By not allowing the amendment, the trial Court has failed to exercise the jurisdiction vested in it by law, based on a misunderstanding of the scope of the proviso or based on too broad an interpretation of the restriction placed by the proviso to Order 6, Rule 17 of the Code on the power of allowing an amendment. In this situation, I am satisfied that I am entitled to exercise the jurisdiction of this Court under Article 227 of the Constitution of India to correct the jurisdictional error committed by the trial Court and allow the application for amendment filed by defendants 1 and 2. There was no argument before me that such a counter-claim cannot be permitted to be raised since the original written statement had already been filed. This is obviously in view of the fact that such a counter-claim though not raised in the original written statement can be permitted to be raised at a subsequent stage in an appropriate case. I am, therefore satisfied that the order of the Court below requires to be interfered with.
7. Before parting with this case, I may observe that proviso (b) to Section 115 of the Civil Procedure Code introduced by Amending Act 104 of 1976 served a salutary purpose. It enabled the Revisional Court to interfere with an order if the order challenged, if allowed to stand, was likely to occasion a failure of justice. After all, the very purpose of conferment of a revisional jurisdiction is to ensure that there is no failure of justice. It is difficult to understand why such a salutary provision which enabled the Revisional Court to ensure a proper trial of the Us between the parties by interfering with orders which impeded or precluded a proper trial should be deleted by way of amendment. Anxiety for ensuring a speedy trial evinced by Amending Act 22 of 2002 cannot be such as to lead to a situation where a Revisional Court cannot ensure a fair trial of the Us between the parties. After all, justice hurried can also be justice buried. It is no doubt true that justice delayed may be justice denied. What is called for is the striking of a balance between the two and not sacrificing one at the altar of the other. Therefore, it may be proper to consider whether proviso (b) to Section 115 of the Code introduced by Act 104 of 1976 should not be restored.
8. I allow the Revision. The order of the Court below is set aside. The application for amendment will stand allowed.