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B.N. Das and ors. Vs. Bijaya Ketan Mohanty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 592 of 1981
Judge
Reported inAIR1982Ori145; 53(1982)CLT547
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 6, Rule 17
AppellantB.N. Das and ors.
RespondentBijaya Ketan Mohanty
Appellant AdvocateP.C. Misra, ;S.P. Misra, ;S.K. Choudhury, ;S. Latif, ;D. Das and ;M. Ghosh, Advs.
Respondent AdvocateM.M. Sahu, Adv.
DispositionRevision dismissed
Cases Referred(Badri Prasad Soni v. S. Kripal Singh
Excerpt:
.....india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the defendants filed objection on the grounds that they had pleaded right from the initial stage that the suit was bad for non-joinder of the association as a party and, therefore, the plaintiffs petition should be dismissed as mala fide and that as the hearing had been concluded and the case already posted for judgment, the plaintiffs petition could not be entertained by the court at that stage. it may be seen that under order ix, rule 7 a defendant may appear and assign good cause for his..........already posted for judgment, the plaintiffs petition could not be entertained by the court at that stage. after hearing both sides the learned munsif held that the association was a necessary party, that no effective decree could be passed in its absence and that its presence was essential for a just decision of the suit. the plaintiffs petition was accordingly allowed. this order of the learned munsif is under challenge in the revision.3. the impugned order is assailed mainly on the ground that after the hearing of the suit had been concluded and the case posted for judgment. it was not open to the court to entertain an application under order vi, rule 17 read with order i, rule 10 of the code. support for this contention is claimed from the following observations of the supreme court.....
Judgment:
ORDER

B.N. Misra, J.

1. This revision is directed against the order dated 17-9-1981 passed by the learned Munsif, Dhenkanal, in T. S. No. 3 of 1980 allowing the opposite party's application under Order VI, Rule 17 read with Order I, Rule 10 of the Code of Civil Procedure (hereinafter referred to as the Code).

2. The opposite party is the plaintiff and the petitioners are the defendants in the Court below. The plaintiffs prayer is for declaration that the elections to the Circle Executive Committee and the Zonal Executive Committees of the State Bank of India Officers' Association, Orissa (hereinafter referred to as the Association), for the years 1980-82 are null and void and for permanent injunction against defendants 1, 2, 5 and 6 in order to restrain them from proceeding further with the elections. After the hearing of the suit commenced in the lower Court, evidence was closed on 13-8-1981, arguments on both sides were concluded on 24-8-1981 and the case was posted to 3-9-1981 for judgment. On 31-8-1981 the plaintiff filed a petition under Order VI, Rule 17 read with Order I, Rule 10 of the Code to implead the Association as a party and for consequential amendment of the plaint. The defendants filed objection on the grounds that they had pleaded right from the initial stage that the suit was bad for non-joinder of the Association as a party and, therefore, the plaintiffs petition should be dismissed as mala fide and that as the hearing had been concluded and the case already posted for judgment, the plaintiffs petition could not be entertained by the Court at that stage. After hearing both sides the learned Munsif held that the Association was a necessary party, that no effective decree could be passed in its absence and that its presence was essential for a just decision of the suit. The plaintiffs petition was accordingly allowed. This order of the learned Munsif is under challenge in the revision.

3. The impugned order is assailed mainly on the ground that after the hearing of the suit had been concluded and the case posted for judgment. it was not open to the Court to entertain an application under Order VI, Rule 17 read with Order I, Rule 10 of the Code. Support for this contention is claimed from the following observations of the Supreme Court in the case Arjun Singh v. Mohindra Ku-mar (AIR 1964 SC 993) (at p. 1004):--

'......... Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX, Rule 7 and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice Mr. Pathak, however. strenuously conteded that a case of the sort no v on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider, that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit : (1) where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX. Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX, Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX, Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX, Rule 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated May 31, 1958 purporting to be under Order IX, Rule 7; and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order IX, Rule 13 filed by the appellant.'

In view of the provisions contained in Order IX of the Code what was decided by the Supreme Court was that after the stage contemplated under Order IX, Rule 7 was over, an application for relief could not be entertained by the Court during the period between conclusion of hearing and pronouncement of judgment; the aggrieved party must wait till a decree was passed and then make an application under Order IX, Rule 13, C. P. C It may be noted that the provisions of Order VI, Rule 17 or Order I, Rule 10 of the Code were not under consideration before the Supreme Court. It may be seen that under Order IX, Rule 7 a defendant may appear and assign good cause for his previous non-appearance at or before the adjourned ex parte hearing. The implication of the expressions 'at any stage of the suit' in Order I, Rule 10 and 'at any stage of the proceedings' in Order VI, Rule 17 is very different from that of its expression 'at or before such hearing' in Order IX, Rule 7. The former two expressions are obviously much wider in their application. On consideration of the provisions of Order VI, Rule 17 and Order I, Rule 10 of the Code I am of the view that the expressions 'at any stage of the proceedings' and 'at any stage of the suit' should cover the period between conclusion of hearing and pronouncement of judgment. This view finds support in a recent decision of Madhya Pradesh High Court. In AIR 1981 Madh Pra 228 (Badri Prasad Soni v. S. Kripal Singh), cited by learned counsel for the opposite party, it was held (at p. 230):--

'The suit is commenced on the presentation of plaint as is obtainable from Order 4, Rule 1, Civil P. C. instituted as 'suit to be commenced by plaint' and is disposed of so far as the trial Court is concerned, on the pronouncement of judgment under Order 20, Rule 3 of the Civil P. C. This being the position regarding the commencement of the suit and its termination in the trial Court, in the light of the discussion contained in the preceding paragraph of this order, the irresistible conclusion is that delivery of judgment by the trial Court is a stage in the proceeding. In this view of the matter, it can safely be held that because of the expression 'at any stage of the proceedings' employed in Order 6, Rule 17 of the Civil P. C., the Court is competent to allow either party to alter or amend his pleading any time before the judgment is pronounced, as till then the Judge has the seisin over the case and is not functus officio........,'

4. In the present case the learned Munsif has held that the Association is a necessary party and that its presence is essential for a just decision of the suit. In the facts of this case I find no reason to take a different view.

5. In the result, the civil revision fails and is dismissed. As the plaintiff has filed the application under Order VI, Rule 17 read with Order I, Rule 10 of the Code after the conclusion of the hearing and is responsible for the harassment to the defendants, he is directed to pay a consolidated cost of Rs. 240/- (Rs. two hundred and forty) to defendants 1 to 6 before further hearing of the suit failing which the aforesaid petition filed by the plaintiff and the suit would stand dismissed.


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