This revision against the order of affirmance passed by learned District Judge, Bhakkar, dated 15- 10-1989 is by Muhammad Nawaz defendant No.1 and arises out of following circumstances: "On 5-3-1986 Allah Diwaya (herein respondent No.1) instituted suit for declaration to the effect that he is owner in possession of the property in dispute (completely described in the plaint) on the basis of title. The suit was contested by respondents Ghulam Sarwar, Abdul Aziz and Muhammad Anwar on the ground that they were owner in possession of the premises in dispute under the decree of Civil Court dated 17-12--1975; that they had purchased the property from Muhammad Nawaz (herein petitioner)."
2. The petitioner did not file the written statement despite the orders of the Court. The learned trial Court, therefore, on 8-7-1976 passed an order by which the right of petitioner to file the written statement was struck of. On 10-10-1988 Allah Diwaya, the plaintiff, filed an application under Order VI rule 17 of C.P.C. For amending the plaint in order to incorporate the relief of recovery of possession and also to incorporate the circumstance of his dispossession.
3. The learned Civil Judge, Bhakkar vide order dated 17-1-1989 accepted the application and directed Allah Diwaya to file amended plaint. On 29-1-1989 the respondents 2 to 4 were directed to rile written statement.
4.On the new pleadings of the parties the following issue was settled by the learned first Court:-- 9-A. Whether the plaintiff has been dispossessed from the land in dispute during the pendency of the suit and is entitled to recover possession of it OPP?
5. On 11-7-1989 the petitioner submitted application for permission to file written statement. It was pleaded in the application that since the plaint was amended, the petitioner had a right to file the written statement in respect of amended plaint. The learned first Court vide order dated 23-7-1989 rejected the application. On appeal the learned District Judge also came to the same conclusion and dismissed the appeal vide order dated 15-10-1989. These two orders are the subject-mater of challenge in this petition.
6.The learned counsel for the petitioner raised following points:-- (i)It was contended that vide order dated 17-1-1989 Allah Diwaya-plaintiff was allowed to amend the plaint and add the plea of relief of possession. It was stated that this plea was not in the plaint.
Any averment in respect of this relief was also non-existent in the original plaint. On the strength of this narrative it was suggested that the petitioner had a right to file written statement. Reliance was placed on Kodi Makku Naicker and another v. Agathiappa Goundar and others (AIR 1949 Madras 622), Girdharilal v. Krishna Datt (AIR 1960 Punjab 575), Salicharan Bisi v. Sukanti and another (AIR 1979 Orissa 78) and Genba Baiku Kunbi v. Ganpatsao and another (AIR 1937 Nagpur 376).
(ii)It was represented that the hearing was fundamental to dispensation of civil justice.
7. On the other hand, the learned counsel for respondents supported the impugned order. It was argued that the orders of the two Courts below were eminently just and were not open to any interference in the revisional jurisdiction of this Court. It was asserted that revisional jurisdiction was a jurisdiction, intended to correct, the errors of jurisdiction. In this case both the Courts have examined the application of petitioner with care and within the domain of law.
8. It was next stressed that the petitioner had come to this Court with unclean hands. It is apparent from the record that he was given three opportunities to file written statement but he did not comply with the order of the Court. Defendants Nos. 2 to 4 have filed their written statement and have taken up the plea which the present petitioner will take in his written statement. Defendants Nos.2 to 4 are really contesting respondents/defendants, while the petitioner had no subsisting interest in the prosecution of this suit. The learned counsel for the respondents placed reliance upon Bhagwan Rai and others v. Bhagwan Singh and others (AIR 1962 Patna 319).
9.I have heard the arguments of the parties at length and have perused the record with their assistance.
10. The questions calling for examination in this petition can be briefly summarised as follows:- (i)Whether the order of the original Court under Order VIII rule 10 of the Code of Civil Procedure shall be a bar to the right of petitioner in filing written statement after the amendment of the plaint?
(ii)Whether the order passed by the District Judge is in fact order passed in revisional jurisdiction under section 115 of the Code of Civil Procedure and so second revision is not competent.
11. I take the question No. (i) first. From the narration of facts given above, it is apparent that the facts of the case arc not in dispute: The question to be noticed is as to whether the order of the original Court dated 8-7-1976 is a bar to an application for permission to file written statement despite the fact that the plaintiff Allah Diwaya was allowed to amend his plaint and a new issue 9- A was framed between the parties. The laws of pleadings contained in Orders VI, VII and VIII of the Cade of Civil Procedure are intended to narrow the parties to definite issues, so that the Court is able to decide the cases in controversy after hearing both the parties within the framework of their pleadings. The most A essential condition to the dispensation of justice is the opportunity- of hearing afforded to both litigants. The pleadings include plaint as well as written statement. The pleadings are regulated by the provisions of the Code of Civil Procedure contained in Orders VI, VII and VIII ibid. The relevant provisions relating to amendment in plaint as well as written statement are as follows: O.VI, R.17. 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.
O.VIll. Rs.9 & 10. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-of shall be presented except by leave of the Court and upon such terms as the Court thinks fit but the Court may at any time require written statement or additional written statement from any of the parties and fix a time for presenting the same.
Where any party front whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
12. The afore-enoted rules have been the subject-matter of interpretation by the superior Judiciary in a number of cases. It is appropriate to notice the authorities cited by the parties at this stage. In Chandra Kishore Das v. Babulal Agarwala and others (AIR 1949 Orissa 77), the plaintiff filed a suit for recovery of money against Vijaya Stores. The suit was contested. The plaintiff thereupon filed a petition for impleading Brajakishore as defendant No.2. The amendment was allowed. The defendant No.2 filed his written statement. Defendant No.1 filed an application for amending his written statement. The learned Civil Judge refused the application. The defendant filed the revision petition. Dealing with the contentions of the parties the Division Bench of the Court accepted the revision petition and came to the conclusion that after permission of amendment the defendant/petitioner had a right to file amended written statement. The following observations of the Court are apt to be reproduced: "Order 8, R.9 enables the Court to require a written statement from any of the parties at any time.
After the plaint was amended the Court should have called upon the petitioner to file an additional written statement if he chooses to do so, particularly after- the newly added defendant had filed his written statement. In fact, it was the duty of the Court to have given an apportunity to the original defendant after the plaint had been amended and new pleadings had been brought on the record."
13. The same principle was followed in Salicharan Bisi v. Sukanti Pujhari and another (AIR 1979 Orissa 78). In this case, the suit was instituted on 12-3--1974. The written statement was filed on 18- 8-1975. On 14-4-1977, the plaintiff amended the plaint by adding the relief for recovery of possession of suit land. The petitioner applied for leave to amend his written statement. The learned Sub --Judge declined to accept application. The revision petition before the High Court was accepted and amendment was allowed. It will be advantageous to reproduce the following observation of the High Court which is as follows:- "The object of the Courts is to decide rights of the parties and not to punish them for the mistakes committed in the conduct of their cases. Any kind of error or mistake which if not fraudulent or intended to over--reach the Court, ought to be corrected if it can be done without injustice to the other party."
14. The case cited by the learned counsel for the respondents, i.e. Kodi Makku Naicker and another v. Agathiappa Goundar and others (AIR 1949 Madras 622), proceeds on distinguishable facts. In this case, ex parte proceedings were taken against defendants by original Court vide order dated 13-2-1947. The contesting defendants Nos.1 to 3 filed written statement on 14-3-1947. The issues were framed on 9-4-1947. On 16-9-1947 the petitioner/defendant filed application for setting aside ex parte order. The application was dismissed on 8-10-1947. They, then applied for filing written statement. This application was dismissed. The revision petition filed by this defendant was also dismissed on the ground that the petitioner did not have any right to give a reply in respect of averment incorporated in the plaint by way of amendment.
5.The ratio remerging from the relevant law and the authorities cited above, is as follows: (i)Laws of pleadings contained in C.P.C. Are to confine the parties to specific issues, so that the parties may not be caught by surprise.
(ii)The object of Order VIII Rule 9 of the C.P.C. Is to require a written statement from any of the parties at any time. After the plaint is amended the Court should normally call upon the adversary party to file additional written statement in respect of amendments which are allowed by the Court.
(i.e)The rules of pleadings in C.P.C. Are intended to facilitate the administration of justice and a party cannot be refused just relief merely because of some error, negligence, inadvertence or even infraction of the rule of procedure. The Court normally gives a liberal construction of rules relating to amendment. However negligent, careless may be the first omission which necessitated the proposed amendment, the amendments are allowed if they do no violation or injustice to other parties.
(iv)The object of the Court is to adjudicate the rights of the parties on the basis of material furnished by them and not to penalise them for mistakes committed by them in the conduct of prosecution of their causes.
16. Applying these principles to the facts of this case it is apparent that I respondent/plaintiff did not allege in his plaint the circumstance of his want of possession; that in written statement furnished by the remaining respondents, it was alleged that the plaintiff was out of possession; that after the permission of amendment respondents Nos.2 to 4 have filed their amended written statement; that the petitioner defendant is the person from whom defendants Nos.2 to 4 purchased the land in dispute. Therefore, I have no hesitation in coming to the C conclusion that the original Court was required to give an opportunity to the petitioner for filing his written statement in respect of amendment, therefore, the original Court flouted the principle of law; "that the parties must be given adequate opportunity of hearing" and so orders of the original Court as well as the first appellate Court cannot be sustained---being in defiance of law.
17. Having determined the nature of the first order, now I proceed to take up the second question.
The contention of the learned counsel for respondents that the order of the first appellate Court is in fact the order passed in the revisional jurisdiction and so this revision petition be treated as a second revision has no force. From the reading of the order of the learned District Judge Bhakkar, it is quite clear that the learned. District Judge erroneously and incorrectly adjudicated Civil Appeal No. 67/89 in exercise of his appellate authority. He mechanically Passed the order of affirmance without taking into I D consideration that the order of the original Court was in violation of law and also did not examine the appeal within the spectrum of Section 115 of the Code of Civil Procedure. I am, therefore, clear in my mind that the learned District Judge did not decide the matter as an appellate Court. Since the learned District Judge did not treat the appeal as revision, therefore, I have no doubt in my mind that this revision petition against the order of the learned Civil Judge, Bhakkar dated 23-7-1980 is competent under section 115 of the Code of Civil Procedure. Reference may be made to Zaheer Ahmad and 6 others v. Allah Ditta and 16 1 others PLD 1983 Lah. 256.
18. For the reasons stated above, the revision petition succeeds. Both the impugned orders are hereby set aside, the application for filing amended written statement by petitioner/defendant is allowed: The petitioner/defendant No.1 I shall file amended written statement within one month of the receipt of this order by the learned original Court. In view of the complexity involved in this petition,1 the parties are left to bear their own costs.