Saiyid Fazl Ali, J.

1. These applications are directed against an order of the Subordinate Judge refusing leave to the petitioners to amend their plaints in three suits brought by them against the Secretary of State for India in Council and directing the plaints in all the three cases to be rejected. The petitioners claim to be tenants of certain lands situated within the Khas Mahal area in the Patna district and they brought these suits for compensation on the ground that the crops raised by them on the disputed lands had been wrongfully sold by Government in spite of their objections. Sometime after the institution of the suit the petitioners sought to amend the plaint so as to give a more detailed description of the disputed lands and also to state in express terms as required by S. 80, Civil P.C., that notices had been served on the Secretary of State more than two months prior to the institution of the suit. The learned Subordinate Judge whose order is now under revision has held that though there could be no serious objection to allowing the petitioners to amend the plaint so far as the description of the properties was concerned, yet they should not be allowed to state at this stage that the Secretary of State had already been served with notice as required by S. 80, Civil P.C. The learned Subordinate Judge in support of his view cites the case of 1931 Cal 503 Jagadish Chandra Deo v. Debendraprasad Bagchi, 1981 Cal 508 : 132 I.C. 634 : 58 Cal 850 in which an observation has been made to the effect that it is the duty of the Court to look into the plaint and if it is found that there is no averment as to the service of the notice the plaint should be rejected. The learned Subordinate Judge has also expressed the view that it would have been unfair to allow amendment inasmuch as a portion of the claim was barred at the date of the proposed amendment. It appears to me however that the learned Subordinate Judge has taken much too narrow and technical a view of the matter and in the circumstances of the case the question of limitation did not arise at all. In 1931 Cal 503 Jagadish Chandra Deo v. Debendraprasad Bagchi, 1981 Cal 508 : 132 I.C. 634 : 58 Cal 850 it was found to be a fact that no notice of the intended suit had been served on the Secretary of State and in those circumstance's the learned Judges very rightly pointed out that S. 80 being mandatory the plaint should have been rejected. The observations made by the learned Judges must thus be read in the light of the special circumstances of the case and in my opinion they do not warrant the view that the Court is not competent to allow amendment, if there is no averment in the plaint of the fact that notice under S. 80 has been served as required by that section on the Secretary of State, even though it may be proved as a fact that a notice required by S. 80 had been served upon the Secretary of State in the manner provided by the section. In this particular case there is a definite statement in the affidavit sworn in support of the application that notices under S. 80 were duly served, and although a general ground was taken in the written statement filed in the Court below that the provision of S. 80 had not been complied with, it was not specifically asserted there that no notice had been served upon the Secretary of State, However that may be, it appears to me that in the circumstances of the case the amendment should have been allowed and the defendants should have been called upon to plead to the amended plaint. If it is a fact that no notice was served upon the Secretary of State the suit was liable to be dismissed on that ground alone; but when it is asserted by the plaintiff that a notice had been served and it is further asserted that a statement to that effect was not made in the plaint owing to the oversight of the typist, the learned Subordinate Judge should not have rejected the plaint without enquiring into the allegation made by the plaintiffs. It is well settled that where the effect of the amendment would be to take away a legal right from a defendant which has accrued to him by lapse of time, leave to amend the plaint should be, refused. Such a case might arise when a person who was a necessary party to a suit was not impleaded and a step is taken to implead him after the suit is barred against him. Similarly leave should be refused when the effect of the amendment will be to alter the whole nature of the suit. The present case however is not a case of such a description and in my opinion no question of limitation could arise if notices had in fact been served as required by S. 80. As the learned Subordinate Judge has apparently proceeded in the matter on the assumption that he had no power to allow the amendment, he has failed to exercise a jurisdiction which was vested in him by law and this brings the case well within the ambit of S. 115, Civil P.C. A further point is raised on behalf of the opposite party that an application in revision should not be entertained inasmuch as the petitioner had a right of appeal to the District Judge from an order rejecting the plaint. It is true that ordinarily this Court will be reluctant to entertain an application in revision where the party has not resorted to a remedy available to him by way of appeal, but it does not follow that merely because the petitioners did not prefer an appeal to the District Judge in this case, the High Court has no power to interfere in revision, S. 115 provides that the High Court may act under that section in a case which has been decided by a Court subordinate to it and in which no appeal lies to the High Court. It does not provide that it cannot interfere in a case where an appeal lies to an inferior Court. The identical point seems to have been raised in Mahadeo Prasad v. Khubi Ram,  1929 All 793 : 118 I.C. 189 : 51 All 1023, and it was dealt with by the learned Judges of the Allahabad High Court as follows:

"Section 115. Civil P.C., empowers this High Court to call for the record of any case which has been decided by any Subordinate Court if no appeal lies thereto. This obviously includes a trial Court and the appeal referred to therein means an appeal to the High Court. The present case therefore fulfils the conditions required by that section. It therefore a trial Court has acted with material irregularity in the exorcise of its jurisdiction, or acted illegally, the High Court has power to interfere in revision, provided that no appeal lies to the High Court. The section does not require that no appeal in the meantime should have been preferred to the Court of the District Judge or that, if preferred, it is only the order of the District Judge which can be revised."
2. In my opinion there is no substance in the technical objection raised on behalf of the opposite party. The applications are therefore allowed and the order rejecting the plaints is set aside and the cases are sent back to the Court below for allowing the amendment on such terms as to costs or otherwise as it considers fit and proper. There will be no order for costs in this Court.