Skip to content


M.P. State Co-operative Land Development Bank Ltd., Bhopal Vs. J.L. Chouksey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 750 of 1976
Judge
Reported inAIR1980MP204; 1980MPLJ772
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 115 - Order 6, Rule 5 - Order 41, Rule 1
AppellantM.P. State Co-operative Land Development Bank Ltd., Bhopal
RespondentJ.L. Chouksey
Appellant AdvocateK.L. Issarani, Adv.
Respondent AdvocateGulab Gupta, Adv.
Cases ReferredBudhulal v. Chhotelal
Excerpt:
.....the suit as well as the order of the lower appellate court holding that no appeal lay. tax, bill of costs was endorsed on the back of last page of the order .13. it has been held by their lordships of the supreme court in jagat dhish v. their lordships have also observed in the said decision that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under order 41, rule 1 of the code and then contemplating certain contingencies indicated the procedure to be followed by the appellate court in case of such incomplete, defective and incompetent appeals. it has also endorsed a bill of costs on the last page of the impugned order. this order, if allowed to stand, would occasion a failure of justice. the error is obvious enough and..........court and should have filed the regular appeal after the decree was drawn. he argued that the appeal filed as a miscellaneous appeal in the court below against an order was not competent. he also argued that at any rate when the impugned order of the trial court was appealable as a decree; appeal was filed in the lower appellate court; on its dismissal a second appeal should have been filed, the revision is not competent.8. the question whether the dismissal of a suit for non-furnishing the particulars ordered under order 6, rule 5 of the code by the court amounts to a decree and was appealable as such is a question which is covered by the decision in abbas sujjat all v. raza azamshah sulemanshah, air 1941 nag 223 which has been approved by a full bench decision of this court in.....
Judgment:
ORDER

U.N. Bhachawat, J.

1. This is a revision by the plaintiff which has arisen in the following manner:

2. The applicant filed a suit for ejectment and arrears of rent on the alleged ground of relationship of landlord and tenant in the Court of Second Civil Judge, Class II, Bhopal being Civil Suit No. 22-A of 1973. In this suit, the defendant non-applicant herein had filed an application under Order 6, Rule 5 demanding further and better particulars in the plaint which was allowed by that Court vide its order dated 26th June, 1973 and the plaintiff was directed to supply the following particulars:

(i) Whether the tenancy is oral or in writing?

(ii) Whether the plaintiff has obtained the necessary permission for the proposed reconstruction?

(iii) Whether the plaintiff has sufficient funds for the same?

(iv) How the plaintiff requires the suit premises for itself?

3. The aforesaid particulars were not supplied till 14th, Nov. 1973 and on various dates falling between this date and the date on which the furnishing of particulars was ordered, adjournments were sought for furnishing particulars by amending the plaint.

4. On 14-11-1973, the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code). This application is not on record. But it is agreed by the learned counsel for the parties that from amongst the 4 particulars that were ordered to be furnished by the trial Court, particulars Nos. 1 and 3 were furnished in the said application and particulars NOS. 2 and 4 were not furnished. The trial Court, vide its order dated 14-11-73, while dismissing this application of the plaintiff, dismissed the suit for the non-compliance with the order of that Court dated 26th June, 1973. The material excerpt of that order reads as under: (Matter in Hindi omitted.--Ed.)

5. The plaintiff against this order, filed an appeal (Misc. Civil Appeal No. 1 of 1974} in the Court of the First Additional District Judge, Bhopal which has been dismissed by that Court vide its order dated 30th March, 1976 whereby the lower appellate Court relying on a decision of this Court in Smt. Chamarin v. Mst. Budhiyarin, AIR 1975 Madh Pra 74 held that no appeal lay against the order of the trial Court dismissing the suit for non-compliance with Order 6, Rule 5 of the Code as it was not a decree within the meaning of Section 2(2) of the Code and dismissed the appeal on that solitary ground, without examining the merits; hence the plaintiff has filed the present revision against both the orders, that is, the order of the trial Court dismissing the suit as well as the order of the lower appellate Court holding that no appeal lay.

6. It was argued on behalf of the plaintiff that the lower appellate Court was wrong in holding that the appeal did not lie; that the trial Court was wrong in dismissing the suit without examining as to what were the particulars which were not furnished and the trial Court had no jurisdiction to dismiss the suit for non-furnishing of some of the particulars. The learned counsel has submitted that the present revision is filed against the order of the trial Court also. He argued that as no decree was drawn by the trial Court and only a memo of costs was prepared, the order of the trial Court would be revisable and the revision can be entertained by this Court. He also argued that as the record of the case is before the Court and the order of the trial Court is patently illegal and without jurisdiction, this Court in exercise of its jurisdiction should set it aside.

7. The learned counsel for the defendant non-applicant herein in his argument in counter supported the order of the trial Court. He submitted that when on a number of occasions, the case was adjourned at the request of the plaintiff and still the plaintiff did not furnish the full particulars, the trial Court had no other alternative, but to dismiss the suit. He also argued that the impugned order of the trial Court was appealable as decree and not as appeal against an order. Therefore, the plaintiff ought to have filed a regular appeal in the lower appellate Court. If the decree was not drawn, he ought to have made an application for the drawing of the decree to the trial Court and should have filed the regular appeal after the decree was drawn. He argued that the appeal filed as a miscellaneous appeal in the Court below against an order was not competent. He also argued that at any rate when the impugned order of the trial Court was appealable as a decree; appeal was filed in the lower appellate Court; on its dismissal a second appeal should have been filed, the revision is not competent.

8. The question whether the dismissal of a suit for non-furnishing the particulars ordered under Order 6, Rule 5 of the Code by the Court amounts to a decree and was appealable as such is a question which is covered by the decision in Abbas Sujjat All v. Raza Azamshah Sulemanshah, AIR 1941 Nag 223 which has been approved by a Full Bench decision of this Court in Budhulal v. Chhotelal, 1976 Jab LJ 797 : (AIR 1977 Madh Pra 1). The decision relied on by the trial Court in Chamarin v. Budhiyarin, AIR 1975 Madh Pra 74 the equivalent of which is reported in 1975 Jab LJ 52 : 1975 MPLJ 82: (AIR 1975 Madh Pra 74) has been overruled by the afore referred Full Bench decision. The question before the Full Bench was whether the dismissal of suit for non-payment of adjournment costs amounted to a decree and was appealable as such. Their Lordships, while answering this question, have observed as under:

'The second question, to which we have now to advert, is really this: whether the order dismissing a suit for nonpayment of adjournment costs is appealable. There is divergence of views on this question also. The view taken in Chamarin v. Budhiyarin, 1975 Jab LJ 52 : 1975 MPLJ 82 : (AIR 1975 Madh Pra 74) and Gauhati Bank Ltd v. Baliram, AIR 1950 Assam 169 is that word 'default' in Section 2(2), C.P.C. which defines 'decree' is comprehensive enough to include nonpayment of costs or any other default, and it is not restricted to default of appearance. Therefore, an order dismissing a suit for non-payment of costs is excluded from the definition of decree so that it is not appealable. Contrary view has been taken in Abbas Sujjat Ali v. Raza Azam Shah, 27 MPLC 27 : (AIR 1941 Nag 223); Radhabai v. Purnibai, 29 MPLC 254: ILR (1943) Nag 613: (AIR 1943 Nag 149). In the former case, the plaintiff had been given two opportunities to furnish further particulars but he did not comply with the order. Thereupon the trial Court discharged the defendants. Mr. Justice Vivian Bose held that the order of dismissal amounted to a decree and hence an appeal lay from it. It was further observed that no fresh suit could be brought on the same cause of action. We respectfully concur in the latter view.'

In this view of the matter, the lower appellate Court was not right in holding that the dismissal did not amount to a decree and no appeal lay against it.

9. From the discussion in paragraph 4, it is evident that the following particulars were not supplied by the plaintiff;

'Whether the plaintiff has obtained the necessary permission for the proposed reconstruction?'

'How the plaintiff requires the suit premises for itself?'

The suit for ejectment has been based on various grounds. On the non-furnishing of these particulars, the grounds to which these particulars related should have been struck out. The whole suit could not be dismissed as there is no finding of the trial Court that on striking out the grounds to which these are related, no cause of action for the suit survived. The Courts are Courts of justice and not of military discipline. The extreme penalty of dismissing the suit is not justified at all.

10. Now the question is, whether this Court in exercise of its revisional power, can correct the errors of the lower appellate Court which it committed in holding that no appeal lay against the impugned order of the trial Court as it did not amount to a decree and of the trial Court in dismissing the suit for the alleged non-furnishing of the particulars ordered under Order 6, Rule 5.

11. The argument of the learned counsel for the plaintiff-applicant was that as no decree was drawn by the trial Court, no regular appeal could be filed, The applicant, therefore, filed it as miscellaneous appeal treating it to be an appeal against the order; the applicant could also file a revision against the order of the trial Court -- as no decree was drawn in this Court directly. He also argued that the applicant has, therefore, filed this revision against the order of the trial Court also and that this Court can in exercise of its revisional jurisdiction suo motu correct the errors of the Court below. The argument in counter of the learned counsel for the non-applicant was on this point that if an appeal lay against the order of the trial Court, it will be treated as an appeal against the decree. If no formal decree was framed by the trial Court, the plaintiff-applicant could have made an application for framing of the decree, that is, he could have adopted a procedure laid down in Jagat Dhish Bhargava v. Jawaharlal Bhargava, AIR 1961 SC 832. He also argued that as an appeal lay against the order of the lower appellate Court against the dismissal of the appeal by the lower appellate Court vide impugned order, a second appeal ought to have been filed before this Court and as there is no second appeal, this Court in exercise of its revisional power cannot correct the error.

12. As already held hereinabove, the order of the trial Court was appealable as a decree. The trial Court, while dismissing the suit did not draw the decree; tax, bill of costs was endorsed on the back of last page of the order .

13. It has been held by their Lordships of the Supreme Court in Jagat Dhish v. Jawaharlal Bhargava (AIR 1961 SC 832) (supra), on interpretation of Order 41, Rule 1 of the Code that the requirement of filing the certified copy of the decree along with the memorandum of appeal is imperative and in the absence of the decree, the filing of the appeal would be incomplete, defective and incompetent. Their Lordships have also observed in the said decision that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41, Rule 1 of the Code and then contemplating certain contingencies indicated the procedure to be followed by the appellate Court in case of such incomplete, defective and incompetent appeals.

14. In the instant case, it is undisputed that a decree has not in fact been drawn up by the trial Court; the memorandum of appeal before the lower appellate Court was naturally, therefore, not accompanied by a certified copy of decree. It is also significant that neither the plaintiff-appellant in the lower appellate Court and applicant herein applied before the trial Court praying for the framing of the formal decree nor the lower appellate Court had issued any direction in that regard. As a matter of fact, the lower appellate Court without noticing this defect proceeded to decide the appeal and held that no appeal lay against the impugned order of the trial court as the dismissal of the suit for non-compliance of the order of the Court under Order 6, Rule 5 of the Code was not a decree within the definition of decree in Section 2(2) of the Code. I have held in paragraph 8 of this Order, that it falls within the scope of decree and was appealable as a decree.

15. In this setting of the facts and in view of the mandatory requirement of Order 41, Rule 1 of the Code, it cannot, but be held that there was no competent appeal before the lower appellate Court; the lower appellate Court had, therefore, no jurisdiction to proceed with such an incompetent, defective and incomplete appeal and decide it. The lower appellate Court has, therefore, committed a jurisdictional error in rendering the impugned decision. Further, the lower appellate Court has also not drawn a formal decree. It has also endorsed a bill of costs on the last page of the impugned order. As there was no competent appeal before the lower appellate Court, there is no question of giving a direction to the lower appellate Court in terms of the decision of the Supreme Court in Jagat Dhish Bhargava v. Jawaharlal Bhargava (AIR 1961 SC 832) (supra). In this view of the matter, the revision against the impugned order of the lower appellate Court is entertainable, and that order can be set aside. How the question is, whether the impugned order of the trial Court can also be revised. For want of formal decree on the basis of the impugned order, though it was appealable, the appeal was not competent.

16. On the perusal of the plaint, it is apparent that the suit is based on the grounds under Sections 12 (1) (a), 12 (1) (h) and 12 (1) (f) of the M. P. Accommodation Control Act (for short hereinafter referred to as the Act). The particulars not supplied relate to grounds under, Sections 12 (1) (h) and 12 (1) (f); on deletion of these grounds, the ground under Section 12 (1) (a) would still survive and as such it cannot be held that the plaint did not disclose the cause of action. Therefore, the dismissal of the suit was erroneous and illegal. The trial Court had no jurisdiction to dismiss the whole suit. The trial Court has acted in excess of its jurisdiction and/or has illegally exercised its jurisdiction. This order, if allowed to stand, would occasion a failure of justice.

17. In the instant case, it appears that the trial Court also considered that the impugned order is not a decree and therefore, did not draw a formal decree and this was even the view taken by this Court in Smt. Chamarin v. Mst. Budhiyarin (AIR 1975 Madh Pra 74) (supra). In the light of the peculiar facts of this case, it would not be just to throw out the plaintiff on the ground that, the plaintiff should have applied for the drawing of a formal decree in the trial Court; after the framing of the decree, should have filed a regular appeal in the lower appellate Court and in the event of dismissal of that appeal, ought to have come to this Court in second appeal in which the order would have been decided. The justice would be lost in technicalities. Since there was no decree drawn, there could be no competent appeal. The order in such a situation was a case decided and was open to revision. [See Ganesh v. Radhelal, 1972 MPLJ (Notes) 78].

18. It would be pertinent to point out here that their Lordships of the Supreme Court have in Shankar Ramchandra Abhayankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 held that when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the. Code circumscribes the limits of that jurisdiction, but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Courts which is being invoked and exercised in a wider and larger sense.

19. It is a matter of technicality whether the impugned order of the trial Court is set aside in exercise of appellate jurisdiction or in exercise of revisional jurisdiction. The laws should be interpreted to advance the cause of justice. My view finds support from a Full Bench decision of this Court in Budhulal v. Chhotelal (AIR 1977 Madh Pra 1) (supra). The relevant observations are these:

'......... The dismissal of the suit was, therefore, erroneous and illegal. It would be merely a matter of technicality whether we set aside the order in exercise of appellate jurisdiction or in exercise of revisional jurisdiction suo motu. The error is obvious enough and the sooner it is corrected, the better in the interest of justice.'

20. As already held hereinabove, the trial Court has committed an illegality and if its impugned order is allowed, it would result in injustice. It is a fit case for exercise of the revisional powers suo motu.

21. In the light of the foregoing discussion, in the exercise of revisional jurisdiction suo motu, I set aside the impugned orders of the Courts below and send the case back to the trial Court with a direction that it shall order the striking off of paragraphs 4 and 5 of the plaint regarding which the particulars were not furnished and thereafter proceed with the trial of the suit according to law.

22. The revision is thus allowed as indicated hereinabove, I make no order as to cost.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //