• Question of Law ? whether section 115 of CPC or under Article 227 indian constitution

What remedy is available to challange /set aside, An Interlocutory Order, allowing amendment application (to amend the plaint) of Plaintiff, passed in partition suit by Trial Court ? 

1. ) Whether Revision under section 115 of CPC

OR

2. ) Whether Writ Petition, Under Article 227 of Indian Constitution (please read only 227 and not 226)

OR

3. ) Any Other remedy.

 Thanks.
Asked 4 years ago in Civil Law

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18 Answers

You can challenge it in both. In 151 you need to do it in 30 days. In writ petition there is no limitations

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Yes 115 speaks about revision in which the subordinate court below HC has ousted it's jurisdiction, exercised a jurisdiction not vesyed in it, failed to exercise it's jurisdiction. Yes if 115 is slternaye remedy writ will bit be msintainable in Normal course

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

115 is different. Itcis civil revision. 227 is not a writ petition. It is an application against the civil court wherein the power resides with the high court to keep the lower courts within the bounds of their authority. You should file a civil revision.

Regards 

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

151 is different and it is a power taht resides with the district civil court of original jurisdiction. 

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

order granting or refusing to grant amendment of pleadings is not revisable under Section 115 of the Code of Civil Procedure, particularly after its amendment in the year 2002. Instances are numerous of such orders being challenged before high  Court by means of Writ Petitions filed under Article 226 and/or Article 227 of the Constitution of India. It has, indeed, been judicially noticed by the Supreme Court of India that after the amendment of Section 115 of the Code of Civil Procedure, all the High Courts in India are flooded with petitions under Article 227 of the Constitution of India challenging all sorts of interlocutory orders. Vide Rajeshwari v. Puran Indoria . By the various judicial pronouncements it is now, by and large, settled that there are certain species of amendments which ought to be allowed and certain others which ought not to be allowed. Most of the requests for amendment of the pleadings are sought before the trial courts either before the commencement of trial or during or after the trial. Refusal to allow a party to amend his pleadings, in a case where such amendment ought to be granted, may result in injustice. Similarly, allowing a party to amend his pleadings, in a case where it ought not to be allowed, may also work injustice. In cases where such injustice is done at the trial stage, it may be a poor solace to the aggrieved party to be told that the order constituting the injustice done to him is not revisable under Section 115 C.P.C. and cannot also be corrected in a petition under Article 227 of the Constitution of India as well and that his remedy is to challenge the order in an appeal to be preferred against an adverse decree which might be passed by the trial court against him in due course.

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

The sweep and amplitude of the supervisory and visitorial jurisdiction of the High Court under Article 227 of the Constitution of India were examined at length by the Supreme Court in Surya Dev Rai v. Ram Chander Rai . Some of the pithy observations by the apex court in the above decision can be summarised as follows:

(a) The curtailment of revisional jurisdiction of the High Court under Section 115 C.P.C. by the amendment of the year 2002 does not take away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor is the power of superintendence conferred on the High Court under Article 22 7 of the Constitution taken away or whittled down. The power exits, untrammelled by the amendment of Section 115 of the C.P.C. and is available to be exercised subject to rules of self discipline and practice which are well-settled. (Vide Para 33).

(b) The jurisdiction conferred on the High Court under Articles 226 and 227 of the High Court is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. The power of the High Court under Article 226cannot be whittled down, nullified, curtailed, abrogated, diluted or taken away either by judicial pronouncement or by legislative enactments or even by an amendment of the Constitution. (Vide Para 28).

(c) The parameters for exercise of jurisdiction under Article 226or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. (Vide Para 38).

(d) The power to issue a writ of certiorari against orders of subordinate Courts and the supervisory jurisdiction over subordinate courts do exist. But the exercise of such power is discretionary and will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judges. (Vide Paras 36 and 38).

(e) The error of jurisdiction though committed by the inferior court may be capable of being taken care of and corrected at a later stage and the wrong done could be remedied by adjusting the rights and equities in appeal or revision preferred at the conclusion of the proceedings. But there may becases where "a stitch in time would save nine". (Vide Para 38).

(f) Interlocutory orders passed by the courts subordinate to the High Court against which remedy of revision has been excluded by the C.P.C. Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (Vide Para 37 (2)).

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Writ petition under article 227 is maintainable against order passed by trial court allowing your application for amendment 

 

2) your plea should be setting aside order of amendment would result in injustice 

 

 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

You can oppose it on the ground that efficacious alternate remedy is available so writ petition is not maintainable 

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Revision Petition Not Maintainable Against Interlocutory Orders. Petition u/s 227 in the form of certiorari which is supervisory and not appellate. And amendment is allowed by court to avoid multiplicity of litigation and dose not taken a manifest error in justice delivery.


Writ will dismiss on above ground. and

As a general rule of law - appeal lies against an interlocutory order.


 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. Since the order on allowing or rejecting prayer for amendment is interlocutory in nature, no revision under section 115 of 115A of CPC is maintainable..

2. However revision under Article 227 of the Constitution is permissible and the order on amendment can only be challenged in high court .

3. Filing of affidavit in reply is allowed only if the court gives such liberty.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

I have a judgement of Supreme court wherein amendment allowed by trail court, in appeal - court dismissed the amendment order and matter reach to SC and allowed amendment -

Basic ground to refuse amendment is amendment of a plaint will not be allowed if it seeks to introduce into the plaint a new and different case which is inconsistent with the case originally made out in the plaint or, if the amendment has not been moved bona fide or in good faith, but only for the purpose of achieving some collateral/objective which is not bona fide.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Sec 115 is limited to jurisdiction aspects of subordinate court that can be considered by high court. 

Sec 151 refers only to inherent power of high court. It's codification in CPC is of no use.  No law can take away the inherent power of high court entrusted by our constitution.

Art.  227 gives wide power to high court to supervise both  judicial and administrative work of subordinate courts.

Judicial work includes both jurisdiction and legality aspects. 

Legality aspects covers errors of law,  violation of natural justice, arbitrary and capricious excise of authority or discretion and likes. 

So based on the ground of revision you can approach high court either under cpc sec 115 or under Art. 227.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

Yes you can raise objection for maintainability of the writ petition but you should produce the grounds for allowing the amendment application.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Can provide you the judgement where appeal agasint amendment is filed, reversed by HC and restored by SC. Evident from the judgement that  appeal agasint amendment under O IV R 17 is maintainable.

Contact for same.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Section 115 CPC:

1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(c) To have acted in the exercise of its jurisdiction illegality or with material irregularity.

The High Court may make such order in the case as it thinks fit:

[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 proceeding.]

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

Explanation:

In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

 

In general, if you are aggrieved over the orders passed in an IA then you can file a revision petition before high court seeking the desired relief.

 

Writ petition may not be maintainable if there is a provision to file civil revision petition.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

You are right in your understanding.

Since there is a relief under section 115 CPC,. the remedy under article 227 of the constitution may not be maintainable.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

In your counter to the revision petition you can very well object this and record your objections based on the said question of law.

Besides, you may even mention other reasons due to which the revision petition is not maintainable.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Dear Sir,

Section 115 empowers the High Court to satisfy itself on three matters : (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, 

Legal Provisions of Section 115 of Code of Civil Procedure 1908, (C.P.C.), India – Revision

(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

c) To have acted in the exercise of its jurisdiction illegality or with material irregularity.

The High Court may make such order in the case as it thinks fit:

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.


Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

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