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Mangal Chand Chauhan Vs. Ratan Lal Nahata - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 132 of 1979
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantMangal Chand Chauhan
RespondentRatan Lal Nahata
Appellant AdvocateJ.N. Sarma, Adv.
Respondent AdvocateD.H. Choudhary, Adv.
DispositionRevision allowed
Prior history
B.L. Hansaria, J.
1. The facts giving rise to this revision lie within a narrow compass. A suit for malicious prosecution was filed by the petitioner which came to be fixed for hearing on 16-7-79. On that day the plaintiff was present with six witnesses and he filed a petition to fix another date to record evidence of two witnesses mentioned in the petition. This prayer was reiected as would appear from the endorsement of the learned trial Court on the bodv of the petition itself. This has
Excerpt:
.....affect the confidence of the people in the process of the administration of justice and as such has to be regarded as 'material'.the dent in the cause of justice is apparent, when arbitrariness creeps in or seems to have crept in the seemingly failure of justice has thus to be..........the explanation has now made clear that 'every order' made in course of a suit would be a case decided, as the word 'any' signified, 'every'. in support of this contention, shri sarma has first referred to chief inspector of mines v. k.c. thapar, air 1961 sc 838. one of the questions which had come up for examination therein was related to the word 'any one of the directors' used in section 36 of the mines act, 1952. it was stated in para 30 that if one examines the use of the words 'any one' in common conversation or literature, there can be no doubt that they are not infrequently used to mean 'every one' --not one, but all, as, when we say 'any one may enter' it does not mean that 'only one person may enter', but that all may enter. the definition given in the oxford english.....
Judgment:

B.L. Hansaria, J.

1. The facts giving rise to this revision lie within a narrow compass. A suit for malicious prosecution was filed by the petitioner which came to be fixed for hearing on 16-7-79. On that day the plaintiff was present with six witnesses and he filed a petition to fix another date to record evidence of two witnesses mentioned in the petition. This prayer was reiected as would appear from the endorsement of the learned trial Court on the bodv of the petition itself. This has led the plaintiff to invoke the revisional jurisdiction of this Court.

2. Shri Sarma has urged that though a matter relating to granting an adjournment is within the discretion of Court, the same has to be exercised judicially and by taking into consideration all relevant materials. In the present case his submission is that the learned trial Court disposed of the petition for adjournment by one word 'reiected' passed on the body of the petition and such a disposal cannot be regarded in accordance with law and it is a fit case where to set at naught the illegal exercise of jurisdiction of the learned trial Court, the impugned order should be quashed. It is urged that for one of the witnesses who was absent namely. Tilak Bora, steps ,for summoning him had been duly taken 'and as

such the plaintiff was not at fault for

his non-appearance. It is brought to my notice that the defendant had also prayed for time to which the learned trial Court had granted and so the progress of the suit would not have suffered by granting at least one further opportunity to the plaintiff.

3. In reply Shri Choudhary has urged that the grant of adjournment being a discretionary matter, no interference by this Court is permissible specially when no cause at all had been shown by the plaintiff for the absence of the witness in question. I am referred to Order 17, Rule 1 which has empowered the Court to grant adjournment after sufficient cause is shown. It is also contended by the learned counsel that the petition in question was not even verified which is so required by Rule 16 of the Civil Rules and Orders framed by the High Court. The further submission is that reasons are required to be recorded only when adjournment is granted and not when it is refused. This is sought to be brought home by referring to Rule 115 (2) of the aforesaid Rules. It is lastly urged that the order in question cannot be regarded to be a case decided so as to attract Section 115 of the Code.

4. It would firstly be useful to deal with the last submission of Shri Choudhury. The meaning of the expression 'any case which has been decided' appearing in Section 115 had been the sub-lect matter of a number of decisions of the Supreme Court. The leading case on this is that of S.S. Khanna v. F. J. Dillon. AIR 1964 SC 497 where it was held that the expression 'case' is not limited in its import to the entirety of the matter in dispute in an action and it was a word of comprehensive import and includes a civil proceeding. After referring to this decision it was pointed out in Baldevdas v. Filmistan Distributors, AIR 1970 SC 406 that fat p. 410):

'It was not decided in S. S. Khanna's case ...... that every order of the Court

in the course of a suit amounts to a case decided. A case may be said to be decided if the Court adiudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of

Section 115 of the Code of Civil Procedure.'

5. The question is whether these decisions hold after the Explanation has been added to Section 115 by the Code of Civil Procedure (Amendment) Act, 1976. The Explanation reads:

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

6. It is contended by Shri Sarma that the Explanation has now made clear that 'every order' made in course of a suit would be a case decided, as the word 'any' signified, 'every'. In support of this contention, Shri Sarma has first referred to Chief Inspector of Mines v. K.C. Thapar, AIR 1961 SC 838. One of the questions which had come up for examination therein was related to the word 'any one of the directors' used in Section 36 of the Mines Act, 1952. It was stated in para 30 that if one examines the use of the words 'any one' in common conversation or literature, there can be no doubt that they are not infrequently used to mean 'every one' --not one, but all, as, when we say 'any one may enter' it does not mean that 'only one person may enter', but that all may enter. The definition given in the Oxford English Dictionary was then noted. The contention of Mr. Pathak who had appeared for the respondents that when the phrase 'any one' is used with the preposition of, it never means 'every one' was examined. It was ultimately stated that the words 'any one of the directors' used in Section 36 was capable of meaning of 'every one of the directors' in view of the scheme and obiect of the Act in Question. Reliance was then placed on a Full Bench decision of Mysore High Court in Veerappa v. State of Mysore, AIR 1965 Mys 227, wherein it was observed in para 8:

'The word 'any' is, a word which excludes limitations or Qualifications. It connotes wide generality ...... the word

'any' should be given a meaning as wide as possible in the context. Hence in the case before ws the words 'any ward of the Municipal Borough' should be understood to mean 'every ward of the Municipal Borough'.

7. As against this, the submission of Shri Choudhary, the learned counsel for the respondent is that the Explanation has not sought to undo the decisions of the Supreme Court on the expression 'case decided' -- It rather reinforces the same in as much as the Amending Act cannot be regarded as a validating statute which alone would have expressed the intention of the legislature to override the decisions of the Supreme Court on this point.

8. It is somewhat difficult to agree with Shri Choudhury because what was held in Khanna's case (AIR 1964 SC 497) was that every order of the Court in the course of suit would not be a case decided, whereas the Explanation precisely states that. Thus the meaning assigned to the expression in the Explanation is in sharp contrast with the one held in Khanna's case. This only indicates that the legislature wanted to strike a different note on this aspect for reasons not quite discernible.

9. In this context it would not be proper to shut eves to a Division Bench decision of Puniab and Haryana High Court in Harvinder Kaur v. Godha Ram, AIR 1979 Puni & Har 76 through which I have come across, wherein the Division Bench has not accepted the argument that the Explanation has widened the scope of the expression 'case decided', and has held that revision would lie against an interlocutory order only if it determines or adjudicates some right or obligation of the parties in controversy. This view was taken because the learned counsel appearing for the petitioner in that case had not gone to the extent of saying that every order passed in the course of suit/proceedings would be revisable under Section 115, despite the addition of the Explanation. But that precisely is the submission of Shri Sarma, which, in view of what has been stated I would accept, as presently advised. This would not however widen the scope of revisional interference because of the restrictions imposed by the proviso, which has narrowed it.

10. Thus, the impugned order being a case decided, it has to be seen whether other requirements of Section 115 are satisfied or not. Undoubtedly granting of adjournment is a discretionary matter and any error committed while

doing so cannot be corrected under Section 115. The contention of Shri Sarma is that the jurisdiction was exercised illegally or with material irregularity inasmuch as considerations which were relevant were unjustifiably ignored and even the order of rejection was not passed by giving reasons incorporating the same in the order sheet. It is submitted by referring to Manorama Bai v. Manishankar. AIR 1967 Madh Pra 139 that where a witness could not be served with summons for want of proper address, the Court cannot refuse adjournment unless the incorrect address was shown to have been deliberately given. In the case at hand there is nothing on record to show, according to Shri Sarma, that non-service of summons on Tilak Bora was due to any deliberate act on the part of the plaintiff, and as such the learned trial Court was bound to bear in mind that the absence of Shri Bora was due to sufficient reasons. But by not applying its mind to this aspect, the relevant ground was unjustifiably ignored, as per Shri Sarma, which would amount to material irregularity in exercise of jurisdiction, as was held in Ajantha Transports v. T.V.K. Transports, AIR. 1975 SC 123. By referring to Rules 333 and 336 of the Civil Rules and Orders, it is impressed that the order of rejection by endorsing the word 'rejected' on the body of the petition was not legal and proper.

11. I have given my due consideration to these aspects of the case and it cannot be denied that some of the questions raised are pertinent. Though a Court has discretion to grant adjournment or not, the same has to be exercised iudicially, and what is more it must appear to have been done so. In the present case no reason at all has been recorded for refusing adjournment, because of which it has become difficult to know what had weighed with the learned Court in passing the order in question. No doubt, the petition as filed does not disclose about the reason of absence of the witnesses except stating that they were material, but that by itself should not be regarded as conclusive as sometime reasons which are available on record are advanced during the course of argument also. What has surprised me most is the rejection of the prayer by incorporating the order on the body of the petition itself and that too by one

word 'Rejected'. This in any case should not have been done and the subordinate judiciary cannot be encouraged to do so. The order sheet of the case has to contain such orders giving reasons as enjoined by Rule 336 of the Civil Rules and Orders. In the present case, the order dated 16-7-79 is absolutely silent about filing of any adjournment petition, not to speak of it containing any reason for rejecting it. Then, though the prayer of the petitioner was rejected, an identical prayer of the opposite party has been allowed, and that too without assigning any reason and about which also the order sheet is silent.

I do not agree with Shri Choudhary

that reason has to be recorded only when granting adjournment. This does not follow from Rule 115(2) of the Civil Rules and Orders. That Rule has specifically required recording of reason when evidence cannot be taken from day to day. This does not mean that for other order? reasons may not be recorded. One of the hallmarks of judicial process or of judicial order is the giving of reason. It is too late in the day to

contend that indicial orders may not be speaking. Even Rule 115 (2) has not been complied with in the present case, as no reason has been given for allowing the prayer of opposite party to adjourn the hearing.

12. I have not thought it proper to

ignore these irregularities, as they affect the confidence of the people in the process of the administration of justice and as such has to be regarded as 'material'. The dent in the cause of justice is apparent, when arbitrariness creeps in or seems to have crept in the seemingly failure of justice has thus to be resorted. The charge of double standard has also to be taken note of and met.

13. On the peculiar facts of this case and in view of all the above. I am of the opinion that the petition should be allowed which I hereby do. The learned trial Court is directed to give one more opportunity to the petitioner to examine the two witnesses in question.


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