Case Note & Summary
The present appeal arises from a partition suit filed by the original plaintiff (respondent No.1) seeking partition and separate possession of joint family property. The defendants (appellants) raised an objection that not all joint family properties were included in the suit, leading to dismissal of the suit by the Trial Court on 16/02/2009. The plaintiff appealed under Section 96 CPC, and during the pendency of the appeal, the plaintiff filed an application (Exh.21) under Order VI Rule 17 CPC seeking to amend the plaint to include all joint family properties. The Appellate Court allowed the amendment on 30/04/2014, holding that it was necessary for effective adjudication. The defendants then filed a review application, which was allowed by the same Appellate Court on 18/02/2015, setting aside the amendment order. Aggrieved, the defendants filed the present appeal under Order XLIII Rule 1(w) CPC. The High Court examined the scope of review jurisdiction and the principles governing amendment of pleadings. It noted that the amendment sought was to include all joint family properties, which was essential to avoid multiplicity of suits and to determine the real controversy. The review court had re-appreciated the evidence and substituted its own view, which was beyond the scope of review. The High Court held that the review order suffered from a patent error and was liable to be set aside. Consequently, the appeal was allowed, the review order was quashed, and the amendment order was restored. The suit was directed to proceed expeditiously.
Headnote
A) Civil Procedure - Appeal against Review Order - Order XLIII Rule 1(w) CPC - The appeal lies against an order passed in review allowing the review application and setting aside the earlier order granting amendment of plaint. The High Court held that the review court exceeded its jurisdiction by re-appreciating evidence and substituting its own view, as the amendment was necessary for effective adjudication of the partition suit. (Paras 1-10) B) Civil Procedure - Amendment of Plaint - Order VI Rule 17 CPC - In a partition suit, amendment to include all joint family properties is necessary to avoid multiplicity of suits and to determine the real controversy. The appellate court had rightly allowed the amendment as it did not change the nature of the suit. (Paras 5-9) C) Civil Procedure - Review Jurisdiction - Order XLVII Rule 1 CPC - Review is not an appeal in disguise; it can be exercised only on grounds of error apparent on the face of the record or discovery of new evidence. The review court's order setting aside the amendment was based on re-appreciation of facts, which is impermissible. (Paras 8-10)
Issue of Consideration
Whether the Appellate Court exercising review jurisdiction was justified in setting aside the order allowing amendment of the plaint under Order VI Rule 17 CPC, and whether the amendment sought was necessary for determination of the real controversy.
Final Decision
The appeal is allowed. The order dated 18/02/2015 passed by the Appellate Court allowing the review application is set aside. The order dated 30/04/2014 allowing the amendment of the plaint is restored. The suit is directed to proceed expeditiously.
Law Points
- Order XLIII Rule 1(w) CPC
- Order VI Rule 17 CPC
- Section 96 CPC
- Review jurisdiction
- Amendment of plaint
- Partition suit
- Joint family property
