1. One Shri Jagdish Chander Dhawan is the petitioner in Civil Revision petition No. 492-D of 1960. One Shri Karam Chand Mehra is the first respondent in the said Civil Revision petition and one Rai Sahib Amar Nath Mehra is the second respondent in the said revision petition and the parties will be referred to hereinafter with reference to their position in this Civil Revision Petition.
2. The first respondent herein filed a suit of dissolution of partnership and taking of accounts, impleading the second respondent herein as the first defendant. In that suit, the petitioner herein filed a written statement contending inter alia, that the first respondent herein also was liable to render accounts as some of the books of the partnership were in his possession and according to the petitioner, on rending of such accounts, he would be found entitled to a decree for Rs. 50,000. In the prayer clause, the petitioner prayed that the partnership be dissolved, a decree for rendition of accounts be passed, accounts be gone into and a decree be passed for the amounts found due in favor of the partners. Issues were framed and the evidence of the plaintiff was concluded except for his own statement. On 14-6-1960, the Court passed the following order:--
'In accordance with the statement of the parties, the case should come up on the 22nd July 1960 for compromise, toherwise the statement of the plaintiff be recorded on that day and the evidence of the defendant should be adduced on the 23rd July 1960.'
According to the petitioner, he received on 20-7-1960, a letter dated 13-7-1960 from the plaintiff, intimating him that in case he was feeling all right, he would attend the Court on the date of hearing, toherwise he would send a medical certificate. Meanwhile, it would appear that on 20-7-1960, the plaintiff and the second respondent herein, who was the first defendant in the suit, went to the Court and the plaintiff filed the following application:--
'1. The above-ntoed suit for rendition of partnership accounts was filed by the plaintiff against the defendants in this Court.
2. The applicant wants to withdraw the suit as he is nto entitled to any relief since the suit was filed due to misunderstanding.
It is prayed that the above-ntoed suit may be dismissed as withdrawn and the parties be left to bear their own costs. The contesting defendant has agreed to bear his own cost of the suit.'
The plaintiff also made a statement on solemn affirmation:
'The suit may be dismissed as withdrawn. Parties shall bear their own costs.'
Similarly, the first defendant also made a statement on solemn affirmation:
'I have heard the statement of the plaintiff and the same is correct. I forgo the cost of the suit.'
On this, the learned Judge on 20-7-1960 passed the following order:--
'In accordance with the statements of the parties, the suit of the plaintiff is dismissed as withdrawn. Parties shall bear their own costs. Announced.'
Against this order, the petitioner herein, who was the second defendant in the suit, filed a Civil Revision Petition No. 492-D of 1960. The case of the petitioner in this Civil Revision pettion is that this order dismissing the suit was passed behind his back with a view to defeat his claims or rights put forward by him in his written statement in the suit.
3. At the same time, the petitioner herein, also filed an application for a review of this order dated 20-7-1960. A learned Subordinate Judge, 1st class, Delhi, by an order dated 11-1-1961 reviewed this order and restored the suit to file and directed ntoice to the parties with regard to toher prayers of the second defendant for 1-2-1961. The first defendant preferred an appeal against this order dated 11-1-1961 and the learned Additional District Judge, Delhi, by an order dated 2-5-1962 allowed the appeal. It is against this order, Civil Revision Petition No. 476-D of 1962 has been preferred. In my opinion, the order passed by the learned Subordinate Judge on 20-7-1960 cannto stand.
As indicated already, the suit was adjourned to 22-7-1960 in the presence of all the parties. Without there being any specific order after ntoice to all the parties for advancing the hearing of the case, it was nto open to the learned Subordinate Judge to take up the case in the absence of one of the parties on 20-7-1960 itself and dismiss the same on the basis of the application filed by the plaintiff. It has to be ntoiced that though the application filed by the plaintiff for withdrawing the suit referred to the fact that the contesting defendant has agreed to bear his own cost of the suit, there was no reference whatever to the toher defendant, viz., the second defendant. The suit was for dissolution of partnership and rendition of accounts. The pleadings of all the parties clearly alleged that there was a partnership between all the three parties. In such a case, the second defendant in the suit is vitally concerned and interested in the result of the suit, particularly when he has put forward a claim that if accounts were taken, he would be entitled to a payment of Rs. 50,000. Under these circumstances, it was highly irregular on the part of the learned Subordinate Judge to dispose of the matter on 20-7-1960, when the suit had been adjourned to 22-7-1960 in the presence of all the parties and that too without any ntoice to the second defendant of the application filed by the plaintiff for withdrawing the suit.
4. The plaintiff remained ex parte in this Court in spite of service of ntoice. Mr. H. R. Sawhney, who appeared for the second respondent vehemently contested these two petitions. According to him, under Order 23 of the Code of Civil Procedure, it is open to the plaintiff to approach the Court at any time and seek suit and it is wholly unnecessary to give ntoice to the defendant for this purpose. I am unable to agree with this contention of Mr. Sawhney for more than one reason. Firstly, 'any time' mentioned in Rule 1 (1) of O. 23 of the Code of Civil Procedure does nto mean any particular point of time; it merely refers to a stage that after the suit has been instituted and before the suit has been disposed of, it is open to the plaintiff to approach the Court at any time anterior to that date without ntoice to the toher side and can have the suit itself disposed of. Obviously, since the suit has already been adjourned to 22-7-1960, on 20-7-1960 the suit was nto one of the causes placed for disposal before the learned Subordinate Judge. Only on the application of the plaintiff, the suit has been disposed of. This is a grave irregularity in relation to the procedure followed, particularly because of the fact that all parties to the suit had nto approached the Court on 20-7-1960 for the purpose of having this order passed. It is nto as if the plaintiff alone approached the Court. He had taken the first defendant with him and the learned Judge recorded his statement on solemn affirmation. He did nto apply his mind to the fact that the suit was for dissolution of partnership and for taking accounts and to the existence of the petitioner herein as a second defendant to the suit. Secondly, Rule 1 (3) of Order 23 states that where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. thereforee, at least for the purpose of considering the question whether the plaintiff should be called upon to pay any costs to the second defendant or nto, the second defendant should have been given ntoice of this application for withdrawal of the suit and should have been heard. It is pertinent to point out that even the application of the plaintiff seeking to withdraw the suit mentioned only that the contesting defendant agreed to forgo his costs, obviously meaning the first defendant only and there was no mentioned about the second defendant in this behalf. Admittedly, the entire thing was done behind the back of the second defendant and, consequently, the procedure followed by the learned Subordinate Judge cannto be said to be in accordance with law, and on the toher hand, can be said to be destructive on the very basic procedure prescribed by the Code.
5. Mr. Sawhney appearing for the first defendant contended that the jurisdiction of the High Court under Section 115, Code of Civil Procedure, is very limited and cannto be invoked for the purpose of correcting mere errors of law. In support of his submission, he relied upon the decision of the Supreme Court in Pandurang Dhondi v. Maruti Hari, reported in : 1SCR102 and in Ratilal Balabhai v. Ranchhodbhai Shankarbhai, reported in the same volume : AIR1966SC439 . In my view, the defects and grave and material irregularities which I have already pointed out in relation to the order passed by the learned Subordinate Judge affect his jurisdiction and, consequently, do nto constitute mere error in the procedure or mere error of law. thereforee, in my view, this Court has jurisdiction to interfere with the order of the learned Subordinate Judge dated 20-7-1960, in exercise of its powers under Section 115, Code of Civil Procedure. Ntohing can be more destructive of the confidence of the litigant public in the fairness, impartiality and the propriety of the procedure that has to be followed by the Courts than to advance a case which has been posted to a particular date in the presence of all the parties, without reference to one of the parties and to pass an order behind his back. If such an order cannto be corrected by means of supervisory and superintending jurisdiction of this Court under Section 116, Code of Civil Procedure or under Article 227 of the Constitution of India, much of the utility and the value of that jurisdiction will be lost. Under these circumstances, I am of the view that the order of the learned Subordinate Judge dated 20-7-1960 is liable to be set aside, and is accordingly set aside.
6. Mr. Sawhney contended that in view of that order having been subsequently reviewed by the learned Subordinate Judge, that order is no longer available to be set aside. But this argument is obviously misconceived. At the instance of the first defendant, that order of the learned Subordinate Judge reviewing the order dated 20-7-1960 has been set aside in appeal, with the result the order dated 20-7-1960 has been restored so that it is available for being set aside by me in exercise of the jurisdiction of this Court under Section 115, Code of Civil Procedure. In view of this conclusion of mine, I consider it unnecessary to refer to and deal with the various contentions put forward in the toher Civil Revision Petition, viz., Civil Revision Petition No. 476-D of 1962. In btoh these cases, the relief that the petitioner claims is the setting aside of the order dated 20-7-1960 and since petitioner succeeds with regard to his prayer in Civil Revision Petition No. 492-D of 1960, it is unnecessary to pass any orders in Civil Revision Petition No. 476-D of 1962. Hence, the Civil Revision Petition No. 492-D of 1960 is allowed and the Civil Revision Petition No. 476-D of 1962 is dismissed. There will be no order as to costs in any of these petitions.
8. Order accordingly.