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Riaz Ahmed Vs. Habeeb-ur-rehman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 624D of 1965
Judge
Reported in5(1969)DLT630
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantRiaz Ahmed
RespondentHabeeb-ur-rehman
Advocates: M.L. Oberoi and; G.L. Rawal, Advs
Excerpt:
.....power of revision can be properly invoked. where, thereforee, the impugned order did nto suffer from any jurisdictional or other serious infirmity within the contemplation of section 115, c.p.c.: held, interference on revision could nto be made. ; (on facts), that as no such infirmity was discernible in the instant case and indeed the impugned order was nto even otherwise erroneous in any material particular, the revision must be dismissed. ; petition under section 115 c.p.c. for revision of the order of sh. v.k. kaushal, sub judge i class, delhi dated 6th october, 1965. - - the grievance on behalf of the petitioner in this court is, in my opinion, nto well founded because the challenge is based on one sentence taken out of the context in the order. it is only in cases where a..........a preliminary decree was granted in march, 1963 and miss surinder bhatia, advocate, was appointed local commissioner for going into the accounts of partnership. she was directed to submit her report on 1-6-1963. thereafter an application was made by riaz ahmed for withdrawing the suit, but this application was disallowed in september, 1963. in november, 1963, riaz ahmad jnade another application for withdrawing the suit, but this application was also disallowed. on 13-1-1964, an application was made by riaz ahmad to withdraw the papers from miss surinder bhatia and to appoint someone else as local commissioner. this application was disallowed by the court on 1-4-1965 because the court found nothing wrong with the proceedings before the local commissioner. it is common case of the.....
Judgment:

Inder Dev Dua, J.

(1) This revision challenges the order of a learned Subordinate Judge 1st Class, Delhi, dated 6-10-1965 dismissing the petitioner Riaz Ahmed's application for review of an earlier order of the learned Subordinate Judge dated 29-7-1965.

(2) The controversy out of which the impugned order of the learned Subordinate Judge and the present revision have arisen may briefly be stated. The petitioner Riaz Ahmad instituted a suit for dissolution of partnership and rendition of accounts against Habeeb-ur-Rehman in June, 1962. A preliminary decree was granted in March, 1963 and Miss Surinder Bhatia, Advocate, was appointed Local Commissioner for going into the accounts of partnership. She was directed to submit her report on 1-6-1963. Thereafter an application was made by Riaz Ahmed for withdrawing the suit, but this application was disallowed in September, 1963. In November, 1963, Riaz Ahmad Jnade another application for withdrawing the suit, but this application was also disallowed. On 13-1-1964, an application was made by Riaz Ahmad to withdraw the papers from Miss Surinder Bhatia and to appoint someone else as Local Commissioner. This application was disallowed by the Court on 1-4-1965 because the Court found nothing wrong with the proceedings before the Local Commissioner. It is common case of the parties that as Miss Surinder Bhatia had to proceed to the United Kingdom before finalising her report, Shri Brijinder Singh Narang, Advocate, was appointed Local Commissioner. It appears that Riaz Ahmad also applied to the District Judge for transfer of the case from the Court of the learned Subordinate Judge because I find an Explanationn by the learned Subordinate Judge dated 10-5-1965 to the averments made in the transfer application and also a copy of the order of the learned District Judge dated 9-6-1965 dismissing the transfer application as infructuous because Shri Mohinder Singh Subordinate Judge had already been transferred. It is also stated by both sides at the Bar that Habeeb-ur-Rehman, originally a defendant sometime later gto himself transposed as a plaintiff because the original plaintiff Riaz Ahmad was nto keen on proceeding with the case.

(3) An application was again made by Riaz Ahmed for appointment of another Local Commissioner after removing Shri Brijinder Singh Narang. This application was disallowed by the learned Subordinate Judge on 29-7-1965 as he found no suffrient ground for acceding to the prayer. It was also observed in the order as follows:

'THEapicant, plaintiff, also filed another similar application dated 9-2-1965 and the same was dismissed by my learned predecessor vide his order dated 1-4-1965. The application is, thereforee, dismissed. Relevant papers be given to the Local Commissioner and he be directed to proceed with the commission.'

(4) On the same day, Riaz Ahmed appears to have applied for review of the order dated 29-7-1965. It is the order of Shri V.K. Kaushal, Subordinate Judge 1st Class, dated 6-10-1965 which is impugned in this revision.

(5) The learned counsel for the petitioner has very strongly argued that the learned Subordinate Judge is wrong in law in observing that it hardly makes any difference if the order sought to be revised was passed after hearing the counsel or in his absence. The grievance on behalf of the petitioner in this Court is, in my opinion, nto well founded because the challenge is based on one sentence taken out of the context in the order. The relevant part of the order may here be reproduced :-

'THEmain objection taken up by the learned counsel for the applicant-plaintiff is that the order in question was passed in his absence and without hearing him. He has further argued that although his presence is recorded, but in fact he was absent at that time. In my opinion, it hardly makes any difference if the order in question was passed after hearing the learned counsel for the plaintiff-applicant or in his absence. It was the duty of the counsel for the applicant to attend the court and to argue the application when it was called. In case he did nto care to attend the court the order naturally would have to be passed after hearing learned counsel for the opposite party.'

(6) After holding that there was no sufficient ground for reviewing the earlier order, the learned Subordinate Judge proceeded to consider the other submission of the learned counsel for the applicant who argued that the Local Commissioner could nto have legally disallowed the questions put by him in cross-examination of the defendant. This submission was accepted by the Court below and it was ordered that in future the Local Commissioner should nto disallow any question to be put in the examination of the witness and that the Local Commissioner should record the whole of the statement and objection, if any, taken by the opposite party. Shri Oberoi has concentrated his principal attack on the ground that the Court below was competent to review its earlier order on the ground that the counsel had nto appeared when that case was called. I have, however, nto been persuaded to hold that the impugned order suffers from any jurisdictional or other serious infirmity within the contemplation of section 115, Civil P.C. justifying interference on revision. While exercising its jurisdiction under section 115, it is nto competent to the High Court to correct errors of fact, however, gross or even errors of law unless those errors have relation to the jurisdiction of the Court trying the dispute. It is only in cases where a Subordinate Court has exercised a jurisdiction nto vested in it by law or has failed to exercise a jurisdiction vesting in it or has exercised its jurisdiction illegally or with material irregularity that this Court's power of revision can be properly invoked. No such infirmity is discernible in the present case and indeed I am unable to find even otherwise the impugned order to be erroneous in any material particular. The case had already taken very long and the Court below was, in my opinion, fully justified in passing the order it did. I have, thereforee, nto the least hesitation in dismissing this revision with no costs, as the respondent is nto present in Court, for hearing the order.

(7) Before concluding, I cannto help observing that ever since November, 1965 when this revision was admitted, further proceedings before the Local Commissioner have remained stayed, with the result that in the litigation which started as far back as 1962 and indeed a preliminary decree was passed in March, 1963, the accounts have nto been fully gone into till today. Delays like this merely cause frustration to the litigant public and to some extent damage the fair image of justice. I am also somewhat disappointed to see that the record in this case is nto being properly maintained in accordance with the rules. Further, although I am informed that the original plaintiff has become the defendant, the heading of the case still continues to be repeated as in the original suit, with the result that at times confusion is likely to be caused in following the progress of the case. It is hoped that the Court below would now see that the record is properly maintained.

(8) The revision, as observed earlier, fails and the case is sent back to the Court below for further proceedings in accordance with law and in the light of what has been stated above. The Court, I have no doubt, would see that this suit is disposed of with due dispatch and without any avoidable delay. Parties to appear in the Court below on 26-5-1969 when a further date would be fixed before the Local Commissioner within a very short time so that this suit is disposed of at the earliest point of time


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