1. This is a revisional application by the defendants against the order passed by the learned Civil Judge. Senior Division, Ahmedabad, directing that certain additional issues should be raised on condition, that the defendants deposited in Court within a week Rs. 1,000/- towards the costs of the suit of the plaintiffs to be paid to them in case they succeeded. It is the latter part of the order to which exception is taken by Mr. Thakor on behalf of the defendants.
2. It is well settled that in its revisional jurisdiction this Court does not usually interfere with interlocutory orders. The framing of issues or the refusal to frame issues, granting a request for amendment of the pleadings or refusing to allow amendment of the pleadings, are matters which are in the discretion of the learned trial Judge, and the decision of the learned trial Judge in such discretionary matters is not usually open to be revised by this Court. But where, in exercising his discretionary powers, the learned Judge acts unreasonably and even capriciously this Court undoubtedly can and must interfere with the capricious exercise of such discretionary powers. Theorder passed by the learned Judge in the present case is an illustration in point. The issues were framed in the present suit on 16-7-1955 and the case had been fixed for hearing on the 1st of September. On this date the case could not be taken up because the defendants' lawyer was ill.
Before the next date of hearing, an application was made by the defendants' lawyer suggesting that on the pleadings as they stood six more issues should have been framed and praying that the said issues should accordingly be framed. The plaintiffs objected to the framing of the additional issues on the ground that they did not arise on the pleadings, I assume that the learned Judge was satisfied that the issues did arise on the pleadings; Otherwise it is inconceivable that he would allow these issues to be framed.
If the issues arose on the pleadings, the only infirmity in the approach of the defendants on which criticism could be made was that on 16-7-1955, when the issues were framed, the defendants' lawyer was present and he did not tell the learned Judge that the issues framed did not cover alt the pleadings and that six additional issues needed to be framed.
There can be no doubt that, though the duty to frame issues under the Code of Civil Procedure is cast on the Court, the learned Pleaders appearing for both the parties must share that responsibility, and it may be said with justification that the defendants' lawyer should have invited the attention of the learned Judge To the additional issues which arose on the pleadings and which had not been framed by him.
Even so, ultimately the responsibility to frame issues was on the learned Judge himself, and if before the suit had made any substantial progress the defendants' pleader satisfied the learned Judge that additional issues had to be framed on the pleadings, I see no justification whatever for imposing upon the defendants the condition that they must deposit Rs. 1,000/- within a week. Mr. Shastri for the Opponents argues that I should ask the learned Judge to consider whether the issues arise on the pleadings or not.
I am not prepared to accede to this argument because asking the learned Judge to consider this question would, I apprehend, be unfair to the learned Judge. I am not prepared to accept the assumption that the issues have been framed by the learned Judge without satisfying himself that they arose on the pleadings as they were filed before him. If the issues had not arisen on the pleadings, the learned Judge would have rejected the application for the framing of these additional issues. Therefore, it must be assumed now by all the parties that the issues do arise on the pleadings and the suit must be tried on all the issues framed so far.
The only point which needs to be considered is whether, in the circumstances of this case, the exercise of discretion by the learned Judge in imposing the very unusual condition on the defendants for raising these additional issues is not capricious and unreasonable; and I have no hesitation in answering this question in favour of the petitioners. Courts undoubtedly have wide powers in imposing terms on parties when they seek for amendment of pleadings or ask for other discretionary orders. But just because the powers vested in the Court are very wide, the Courts are expected to exercise their powers with restraint and always in a judicious manner.
In the present case, I do not feel satisfied that the learned Judge has exercised his discretion judiciously at all. That is why I think, the ends of Justice require that this order, though interlocutory, must be set aside in the exercise of my revisional jurisdiction,
3. In the result, the revisional application would be allowed and the order imposing the condition on the defendants for the framing of the additional issues would be set aside. The learned Judge should now proceed to deal with the suit in the light of the issues originally framed by him on 16-7-1955 and the six issues ordered to be framed by the order under revision.
4. Rule absolute. There will be no order asto costs in this revisional application.
5. Application allowed.