Case Note & Summary
The writ petition arose from a civil suit concerning property rights. The plaintiff filed a suit for partition and declaration, which was decreed by the trial court and affirmed by the first appellate court in R.A. No.134 of 2008. In second appeals RSA Nos.5938/2013 and 5802/2013, the High Court set aside the appellate decree due to non-consideration of cross-objections filed by some defendants and remanded the matter to the first appellate court for fresh consideration of the cross-objections along with the appeal. After remand, defendant No.3 filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of his written statement to plead that the suit properties were his self-acquired properties, relying on documentary evidence already on record but lacking specific pleadings. The first appellate court allowed the amendment on 23.03.2021. The plaintiff challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution of India, contending that the amendment was impermissible given the limited scope of remand and that the application should have been heard along with the appeal. The High Court stayed the impugned order on 12.04.2021. The core issue was whether the first appellate court committed a jurisdictional error in allowing the amendment application independently without simultaneously hearing the main appeal. The petitioner argued that the appellate court could not expand the scope of the remand and that the amendment drastically changed the nature of the defense, causing prejudice. The respondent-defendant argued that the amendment was necessary to bring on record the plea of self-acquisition, which was already supported by evidence, and would help in fully adjudicating the controversy. The High Court noted that the remand order was specific and intended solely for the consideration of cross-objections. The Court elaborated on the settled principle that while exercising appellate jurisdiction under Section 96 CPC, the first appellate court should ordinarily not decide interlocutory applications independently but should hear them along with the main appeal. This approach allows the appellate court to assess the relevance, necessity, and potential prejudice of the amendment in the context of the entire appeal. Deciding the amendment application in isolation was procedurally irregular and contrary to law. Although evidence had been led on the amended pleadings, the procedural fatality vitiated the order. The writ petition was allowed, the impugned order dated 23.03.2021 was set aside, and the matter was remitted to the lower appellate court with a direction to hear the amendment application along with the main appeal.
Headnote
A) Civil Procedure - Remand and Scope - Code of Civil Procedure, 1908, Section 96 - High Court remanded the matter solely for consideration of cross-objections left undecided; allowing amendment of written statement after remand without demonstrating that the amendment is necessary to decide the cross-objections may be beyond the scope of the remand order (Paras 8-9). B) Civil Procedure - Amendment of Pleadings - Code of Civil Procedure, 1908, Order VI Rule 17 - Appellate Court should refrain from deciding interlocutory applications independently and must hear them along with the main appeal to assess relevance, necessity, and prejudice - Held that deciding amendment application independently is contrary to settled principles and unsustainable (Paras 11-15).
Issue of Consideration
Whether the lower appellate court erred in allowing the amendment application without hearing it along with the main appeal, particularly when the remand was limited to considering cross-objections, and whether the procedure adopted was sustainable under Section 96 CPC.
Final Decision
Writ petition allowed; impugned order dated 23.03.2021 set aside; matter remitted to lower appellate court to hear the amendment application along with the main appeal and decide after assessing relevance, necessity, and prejudice.
Law Points
- appellate jurisdiction under Section 96 CPC
- procedure for amendment of pleadings at appellate stage
- need to hear interlocutory applications along with main appeal
- principle of remanded appeal limited to directions
- Order VI Rule 17 CPC
- Section 151 CPC
