*CIVIL REVISION REJECTED

IN THE COURT OF ADDITIOAL DISTRICT JUDGE

FAST TRACK COURT, 1ST COURT, ASANSOL.

 

Civil Revision No. 8 of 2003 / 52 of 2002.

 

Petitioner/Plaintiff               :         Tanmoy Kr. Gayen.

 

versus

 

Opposite Party/Defendant   :          Sri Som Shankar Chatterjee and 14 others.

 

Present: Harjinder Singh, Additional District Judge.

 

Dated: The 27th day of August, 2003.

 

JUDGEMENT

 

            The Plaintiff petitioner on 7.8.2002 filed this Revision petition u/Sec.115A of the Cr.P.C. praying for setting aside the Order Dt. 4.6.2002 passed in T.S. No. 194/2000 by the ld. Civil Judge(Jr.Dn.). First Court, Asansol. The  Ld. Court below by the impugned order rejected the petition dt. 9.4.2002 for amendment of the plaint and another petition dt. 4.7.2001 for amendment of the temporary injunction petition by the impugned order on the ground that by way of amendment of the instant suit, the plaintiff is trying to insert new facts which was not subject matter of the original plaint and by way of amendment also trying to introduce a new claim i.e. the claim for damages equivalent to the monthly salary drawn by the defendant No.5 on the basis of newly constituted facts. Ld. Advocate for the Revisional Petitioner forcefully argued before this Court that the impugned amendment petition would not have changed the nature and character of the suit and that the ld. Court below erred in rejecting the petitions for amendment. The Plaintiff petitioner  had given cogent and detailed reasons in both the amendment petitions reiterated in the revision petition as to why the amendment in question is merely introduction of  new details and addition of new facts without changing the nature and character of the suit.

 

            The ld. Advocate for the O.Ps. however supported the impugned order passed by the ld. Court below and submitted that there was no flaw in the order passed by the ld. Court below. They further submitted that the revision petition in view of recent amendment of Section 115 of the CPC is not maintainable.

 

            Now this Court is called upon to decide whether there are any grounds to set aside the impugned order passed by the ld. Court below or not and if so, whether this Court has jurisdiction to allow such a relief to the petitioner or not.

 

DECISION WITH REASONS.

 

            A perusal of the amendment petition on record would show that had the amendment been allowed, it would not have changed the nature and character of the suit in as much as addition of new facts to give better details of the case or claiming damages etc. will change the nature and character of the suit. Keeping in view the explanation IV  of Section 11 of the C.P.C. a party is required to bring on record all matters which might and out to have been made ground of defence or attack and any omission in this regard subsequently operates as res judicata in respect of such facts as were not pleaded though could have been pleaded in the suit in the manner indicated above. Proviso to Section 34 of the Specific Relief Act 1963 also requires that where the plaintiff is entitled to further relieves in respect of any cause of action, he must include those reliefs in the claim failing which the Court may refuse prayer for declaration. Therefore, a prayer for addition of new facts which only elaborate plaintiff’s case and addition of additional prayer which tends to include in the prayer all such reliefs to which the party is otherwise entitled, cannot be construed that such prayers for amendment would change the nature and character of the suit.

 

            Therefore, I am not in agreement with the findings of the ld. Court below. But my hands are tied in view of the fact that as per amendment of Section 115 of the C.P.C. wherein a proviso has been added which reads, “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 a 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.”

 

            Admittedly, even if the impugned order was passed in favour of the revision petitioner, it would not have disposed of the suit or proceedings finally. Hon’ble Calcutta High Court in Mrityunjay Sen vs. Sikha Sen 2003 (i) CHN Page 606 observed, “ The Provisions of Section 115 of Civil Procedure Code with effect from 1.7.2002, when amended provisions came into force, the revisional jurisdiction of High Court has been materially restricted. The Section 115 does not make any differentiation between the classes of orders i.e. interlocutory orders or orders passed in supplemental proceedings which can be challenged. Revision would lie against such impugned orders, ‘if it had been made in favour of the party applying for revision, would have finally disposed of the susit or other proceedings’ in view of deletion of clause (b) of Section 115. The legislators consciously deleted the power of High Court to interfere with any kind of order, which, if allowe4d to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. By proposed amendment  no revision would lie against such orders, which do not finally decide the lis.”

 

            In the said Ruling Hon’ble Calcutta High Court further observed, “ Now revisional application, will only lie against such final or interlocutory order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or the proceeding.”

 

A similar view was taken by Hon’ble Supreme Court in Shiv Shakti Co-operative Housing Society, Nagpur v. M/s Swaraj Developers and others,  AIR 2003 SC 2434. The power exercised by this Court u/Sec.115A being co-extensive with the power of Hon’ble High Court u/Sec.115 of the C.P.C. the power of this Court also stands restricted in view of the aforesaid amendment. Therefore, in spite of a good merit, this Court cannot grant any relief to the revisional petitioner in view of the aforesaid amendment. But before parting with this Judgement, this Court cannot help observing that the aforesaid amendment tends vest absolute and arbitrary powers in the trial Court by negating the theory of chcks and balances. In Jaisinghani v. U.O.I. AIR  SC 1967, 1427, 1434 Hon’ble S.C. observed, “The absence of arbitrary power is the first essential of the Rule of Law upon which our whole Constitutional system is based.”

 

            This is inconceivable that a party should go to trial without the right to present his full case before the Court. Hon’ble S.C. in D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 101 observed, “Once it is ackn owledged that non-arbitrariness is an ingredient of Art. 14 pervading the entire realm of  State action governed by Art. 14, it has come to be established as a further corollary that the audi alterem partem facet of natural justice is also a requirement of Art. 14, for, natural justice is the antithesis of arbitrariness.”

 

            To me the aforesaid amendment is akin to the case of throwing the ;baby along with the bath-water.

 

            The remedy (Amendment of CPC) to curb the delay in disposal of the Civil Cases, appears to be worst than the disease. For example, in this case, the plaintiff shall be left with only the following options:-

 

            a) Proceed with the trial of the suit with a handicapped plaint case.

            b) Move Hon’ble H.C. under Article 227 of the Constitution  as per 2003(1) CHN 606  leading to filing of a flood-gate of such petitions before Hon’ble H.C. which would defeat the very object for which Sec.115A of the C.P.C. was introduced to ease pressure of work before the Hon’ble H.C.

            c) Withdraw the suit with permission t6o sue afresh on same cause of action by filing a fresh rectified Plaint. This may reduce pendency of old cases without expediting relief or curbing multiplicity of proceedings.

            d) Pray before the trial Court to review its impugned order – the outcome whereof may not be certain in view of the stand once taken by the trial Court in the past.

 

            Should the cost of a faulty drafting of plaint be so heavy? I don’t agree. Nevertheless, I am left with no other option but to dismiss the C.R. in view of the Changes introduced into the C.P.C. by way of the recent amendment as discussed above.

 

            Be it, as it may, the conclusion is in-escapable i.e. in this case no revisional application can be allowed. C.F. paid is correct. Hence, it is,

 

ORDERED

 

that the revisional petition u/Sec.115 A of the C.P.C. dt. 7.8.2002 being not maintainable, is rejected on contest.

 

            Let L.C.R. along with the copy of this Judgement be sent to the Ld. Court below at once.

 

( Harjinder Singh)

Additional District Judge,

Fast Track, 1st Court,

ASANSOL.

 

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