Ganga Bai v Vijay Kumar (1974)

The sentence students quote from this case is the widest statement in Indian law of the power to amend: "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding."

The sentence that follows it is the one they forget, and it is why the amendment in this very case was set aside: "But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

Read together, the two sentences are the complete rule. The case is therefore the perfect counterweight to Charan Das and Leach: the same principle, applied to refuse.

On 24 March 1953 defendant 1 executed, on behalf of himself and his minor son defendant 2, a deed of mortgage in favour of the plaintiff. Defendant 3, another son, was born after the mortgage, on 30 September 1955. On 11 January 1956 a registered deed of partition was executed among the defendants, under which the mortgaged property was allotted to the share of defendants 2 and 3.

The mortgagee sued. The trial court passed a preliminary decree for sale of defendant 1's interest only, holding that part of the consideration was not supported by legal necessity and the balance was tainted with immorality, so that the debt did not bind the sons' share. It also recorded a finding that the partition was a colourable transaction effected to delay or defeat the creditors.

Two appeals followed in the High Court: the plaintiff's appeal, and an appeal by defendants 2 and 3 directed only against the finding on the partition. The preliminary decree was made final on 23 October 1958; on 2 March 1960 the plaintiff purchased, with the permission of the court, a joint half share in the mortgaged property in full satisfaction of her decree; the auction sale was confirmed on 21 September 1960 and she was put in joint possession on 25 November 1960.

The appeals came on for hearing in March 1966. While they were part-heard, on 2 August 1966 — nearly seven and a half years after the appeal was filed on 4 January 1959 — defendants 2 and 3 applied to amend their Memorandum of Appeal so as to challenge the preliminary decree itself. No application for condonation of delay was made. On 14 February 1968 a different Division Bench allowed the amendment, and granted time to make up the deficit court fee. The High Court then held the partition "real and genuine", set aside the preliminary decree, the final decree and the auction sale, and passed a fresh preliminary decree. The plaintiff appealed.

Before reaching the amendment, the Court decides the nature of the appeal as filed. The Memorandum had contained seven grounds, all directed against the finding on partition; a fixed court fee of Rs 20 had been paid, explained by a note that only a declaration was sought.

The Court then draws the distinction that has made this case a staple of the law of appeals. "There is an inherent right in every person to bring suit of a civil nature", and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. "A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit." "But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law." That is why the right of appeal is described as "a creature of statute".

Working through ss. 96, 100 and 104 and Order XLIII Rule 1, the Court holds that under the Code an appeal lies only against a decree, or against an order of the kind specified. No appeal lies against a mere finding, for the simple reason that the Code does not provide for one. The appeal of defendants 2 and 3 was therefore not maintainable as filed.

The argument that the finding would have operated as res judicata, and that an appeal should therefore lie on grounds of justice, is answered on the facts: the question of partition was not directly and substantially in issue in the suit, since the mortgage bound only the father's interest whether the partition was genuine or not. The finding could not operate as res judicata, so the appeal failed on that footing too.

Against that background the amendment is examined. The preliminary decree had remained unchallenged since September 1958, and "by lapse of time a valuable right had accrued in favour of the decree-holder." Defendants 2 and 3 had not been denied by the preliminary decree the right to pay the decretal amount; they could even have applied under Order XXI Rule 89 to have the sale set aside on making the prescribed deposit, and did not. The inference the Court draws is that they were content while only half the property was ordered to be sold, and awoke to the need to challenge the preliminary decree only because of the later appreciation in prices of real property.

Having no plausible reason to assign for the delay, they filed no application for condonation at all. The High Court nevertheless allowed the amendment "with a laconic order". Not a reason was cited to explain the delay and not a reason was given to condone it. Nor was it appreciated that allowing the deficit court fee to be made up seven and a half years after the appeal was filed let in an amendment which struck not only at the preliminary decree but at the final decree, the auction sale held in pursuance of it, and the sale certificate granted to the purchaser.

The conclusion is stated without qualification: the High Court was wholly in error in allowing the amendment, particularly when defendants 2 and 3 had neither explained the long delay nor sought its condonation; "the error really lay in allowing the amendment so as to permit, without good cause shown, a belated challenge to the preliminary decree."

The appeal was allowed with costs, the judgment of the High Court set aside and that of the trial court restored.