The Allahabad High Court held that no appeal lies under Section 299 of the Indian Succession Act, 1925 against an order rejecting amendment application in petition filed under Section 278 of the Act of 1925.
Brief Facts:
The present appeal was filed to set aside the impugned judgment and order passed by the Additional District Judge, whereby the amendment application filed by the appellant under Section 278 of the Indian Succession Act was rejected.
Contentions of the Applicant:
The learned counsel appearing on behalf of the appellant contended that the appellant had filed a petition u/s 278 of the Indian Succession Act, 1925 for the grant of letters of administration and during its pendency, he filed an amendment application which was rejected by the impugned order. It is further submitted that the impugned order is absolutely erroneous if the amendment was allowed that would not change the nature of the suit as he simply wanted to add the date of the will dated 4.6.1996 in the plaint.
Observations of the court:
The court stated that under Section 299 of the Act, only those orders appealable which were passed by the District Judge in the exercise of power, conferred upon him under the Act and same will be in accordance with the provision of CPC. Further, the court stated that it is clear from the perusal of Order 43 Rule 1 of C.P.C. that against the rejection of an amendment application under Order 6 Rule 17, no appeal lies. Appeal is the creation of a statute which cannot be inferred without statutory provision. Section 295 of the Act provides that if the proceeding u/s 278 of the Act, 1925 is contentious, the same will proceed in the form of a regular suit, according to the provision of C.P.C. Section 295 of the Act, 1925.
It was then stated by the court that on combining the reading of Sections 299 and 278 of the Act, 1925, it is clear that contentious proceeding u/s 278 of the Act, 1925 will proceed as regular suit and appeal against any order, passed during the proceeding u/s 278 of the Act, 1925, will be in accordance with the C.P.C and thus the appeal u/s 299 of the Act, 1925 will lie only against those orders that are appealable as per Order 43 Rule 1 C.P.C. and rejection of the amendment application under Order 6 Rule 17 C.P.C. does not find place in Order 43 Rule 1 C.P.C.
The decision respondents of the Court:
The court concluded that against the rejection of the amendment application under Order 6 Rule 17 C.P.C. during the proceeding of Section 278 of the Indian Succession Act, 1925, no appeal lies u/s 299 of the Act, 1925 and the same can be challenged by the appellant either in revision u/s 115 C.P.C. or under the supervisory jurisdiction of the High Court, under Article 227 of Constitution of India and dismissed the appeal.
Case Title: Indra Bahadur Yadav vs. Harkhas And Aam And Anr.
Coram: Hon’ble Mr. Justice Arun Kumar Singh Deshwal
Case No.: FIRST APPEAL FROM ORDER No. - 52 of 2024
Advocate for the Petitioner: Mr. Ram Milan Yadav, Om Prakash Yadav
Advocate for the Respondent: None
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