Pritam Dass, Trading As Alka Food ... vs Anil Food Industries
2004 Latest Caselaw 431 Del

JUDGMENT

Vikramajit Sen, J.

1. The present Petition inasmuch as it assails the dismissal of an amendment pursuant to an application under Order VI Rule 17 of the Code of Civil Procedure is not maintainable under Section 115 of the CPC. Such an Order does not fall within genre which, had it been in favor of the applicant, would have had the effect of finally disposing of the suit or proceedings. It is not maintainable in view of the pronouncement of the Hon'ble Supreme Court in Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others, and Surya Dev Rai Versus Ram Chander Rai and other, .

2. The Order which has been impugned in this Revision denies the amendment of the plaint. In Prem Bakshi and Others Vs. Dharam Dev and Others, , the Hon'ble Supreme Court has held that it is almost inconceivable that an Order permitting amendment of pleadings would cause failure of justice or irreparable injury to any party. These observations were obviously made in the context of unamended Section 115 of the CPC. It has been held by the Apex Court that amendments of procedural nature take immediate effect and therefore while they may not adversely affect proceedings which already have been decided, the amended procedure must be applied to all proceedings which come up for decision. The intendment behind Section 115 of the CPC was to root out the practice of filing revisions against interlocutory orders. It cannot be gainsaid that the reasons for which the impugned Order is presently assailed can also be raised and will have to be decided at the final disposal of the suit. Order XLIII Rule 1A is apposite, since it clarifies that such Orders can also be questioned after a final Order or Judgment is delivered.

3. There are plethora of precedents to the effect that the erroneous refusal of an amendment can be questioned when the decree is appealed including Sudharsh Kumar Ahuja v. R.P. Joshi and another, .

4. Learned counsel for the Petitioner prays that the Petition be converted to a Petition under Article 227 of the Constitution. This whole question has also been considered by this Court in Narinder Singh @ Narinder Bahadur vs. Rajinder Prasad, . This prayer cannot be acceded to since this Court is not seized with the roster of the Petition under Article 227 of the Constitution. Needless to state no limitation has been prescribed for a Petition under Article 227 and, therefore, the Petitioner does not require liberty from this Court to file such a Petition. In the event that an objection pertaining to latches is raised, the Petitioner would always be in a position to make a Reference to the pendency of this Revision.

5. With these observations the Petition is disposed of.

Vikramajit Sen, J.