Skip to content


Yaqoob Ali Vs. Firm Haji Taj Khanji Ibrahimji, Udaipur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 49 of 1979
Judge
Reported inAIR1984Raj1; 1982()WLN666
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 105 - Order 16, Rule 1; Code of Civil Procedure (CPC) (Amendment), 1976 - Sections 97(1)
AppellantYaqoob Ali
RespondentFirm Haji Taj Khanji Ibrahimji, Udaipur
Appellant Advocate R.L. Maheshwari, Adv.
Respondent Advocate L.R. Mehta, Adv.
DispositionRevision dismissed
Cases ReferredBasti Sugar Mills v. Stale of U. P.
Excerpt:
civil procedure code - section 115 & 105--revision--maintainability--order of addl. civil judge assailable under section 105--order relating to jurisdic-tional error falling within expression 'any case decided'--held, revision is barred;the interlocutory order relating to jurisdictional error and if it falls within the expression 'any case which has been decided', can be challenged in revision provided the aggrieved party satisfies the high court that order has resulted in failure of justice or has caused irreparable injury to him;the order dated january 15, 1979 is revisable and the revision is not barred by clause (b) of proviso to sub-section (1) of section 115, cpc merely because the correctness of the order dated january 15, 1979 of the learned additional civil judge, udaipur,.....s.k. mal lodha, j. 1. this is a joint reference made by a learned single judge of this court in the two revisions involving somewhat similar questions, as according to him there are conflicting decisions of the learned judges of this court relating to the provisions of order xvi, rule 1, c. p. c. as amended by the civil procedure code (amendment) act (no. 104 of 1976) (for short 'the amendment act'), which came into force from feb. 1, 1977.2. we will notice the facts giving rise to s. b. civil revision no. 49 of 1979, yaqoob ali v. firm taj khan ibrahim. as s. b. civil revision no. 289 of 1979, heeralal v. pyarelal was disposed of by a division bench onjanuary 8, 1982 on account of the concession made, it was not considered proper to decide it on merits. s. b. civil revision no. 48 of.....
Judgment:

S.K. Mal Lodha, J.

1. This is a joint reference made by a learned single Judge of this Court in the two revisions involving somewhat similar questions, as according to him there are conflicting decisions of the learned Judges of this Court relating to the provisions of Order XVI, Rule 1, C. P. C. as amended by the Civil Procedure Code (Amendment) Act (No. 104 of 1976) (for short 'the Amendment Act'), which came into force from Feb. 1, 1977.

2. We will notice the facts giving rise to S. B. Civil Revision No. 49 of 1979, Yaqoob Ali v. Firm Taj Khan Ibrahim. as S. B. Civil Revision No. 289 of 1979, Heeralal v. Pyarelal was disposed of by a Division Bench onJanuary 8, 1982 on account of the concession made, it was not considered proper to decide it on merits. S. B. Civil Revision No. 48 of 1979.

3. The plaintiffs-non-petitioners filed a suit again the defendant-petitioner for specific performance of contract, damages etc. The suit was contested on various grounds by the defendant. Issues were framed on May 9, 1977. The plaintiffs led evidence, and closed it on July 11, 1978. Thereafter, the defendant tiled his list of witnesses including himself in rebuttal on July 17, 1978. An objection was raised by the plaintiffs that as list was tiled beyond fifteen days of July 22, 1977 when the issues were amended, the defendant could not be allowed to examine the witnesses whose names have been mentioned in the list because of the provisions of Order XVI, Rule 1, C.P. C. as amended by the amendment Act. The learned Additional Civil Judge, Udaipur by his order dated January 16, 1979, held that the list of witnesses tiled by the defendant was beyond time and, therefore, he was not entitled to examine the witnesses. A revision was filed under Section 115, C. P. C. by the defendant in this Court on February 13, 1979. When the revision came up for hearing before the learned Judge, two grounds were raised: (1) that the amended provisions of Order XVI, Rule 1, C. P. C. were not inconsistent with Order XVI, Rule 1, Civil P. C, as substituted by the Rajasthan High Court and, therefore, they do not stand repealed by the amendment Act; and (2) that in any case, a liberal view ought to have been taken by the learned Additional Civil Judge and the defendant should have been given permission to examine his witnesses. At the time of hearing, a preliminary objection was raised by the learned counsel for the non-petitioners that no revision lay against the impugned order because no ease of failure of justice or irreparable injury was made out in the case. Attention of the learned single Judge was invited to Ramchand v. Laxmikumar, AIR 1980 Raj 128 a decision of G.N. Lodha, J., wherein there was a reference of Narain Lal v. Someshwar Dayal, (Civil Revn. No. 62 of 1977 decided on Feb. 6, 1979 by M L. Joshi J.). The learned Judge has referred to the following extract appearing in Ramchand's case:

'Mr. Jain, appearing for the respondent-plaintiff has drawn by attention to the judgment of Hon. Justice Joshi dated February 6, 1979 in Narain Lal v. Someshwar Dayal, (C. R. No. 62 of 1977 decided on 6-2-1979) (Raj), in the matter of revision application against refusal of the trial Court to examine witnesses who were present in the Court. In that case, this Court observed as under:--

'The question therefore calls for consideration is whether in the facts and circum-stances of this case the Court should invoke its revisional jurisdiction. Under Section 115, C. P. C the High Court shall not invoke the revisional jurisdiction under Section 115 for varying or reversing any order made unless the order by itself disposes of the suit or unless the order if allowed to stand would occasion failure of justice or cause irreparable injury to the party against whom it was made. Neither of these conditions mentioned in the proviso to Section 115, C. P. C. is satisfied in the present case. Neither the interference with the impugned order would dispose of the suit nor it can be said that the non-interference with it would occasion failure of justice within the meaning of Section 115 of the Code of Civil Procedure inasmuch as the defendant has remedy under Section 105 of the Code whereunder he can challenge the impugned order in the memorandum of appeal. Whatever sympathies may be for the defendant, looking to the legislative intent contained in Section 115 it is difficult for me to interfere with the impugned order in the revisional side. The learned counsel for the petitioner submits that his one more application dated 15-1-1977 is still pending. The Court has to decide that application according to law and whatever arguments are legally permissible, the defendant can raise those arguments before the trial Court. With these observations the revision application is dismissed.

In the above cited case, the observation of Hon. Justice Joshi tantamounts to this that it cannot be said that this would result in failure of justice or irreparable injury. Implication is very clear that though injury may be caused to the party who may be compelled to file appeal, will it be called irreparable injury ?

The judgments referred to by Mr. Khan are judgments on the point of correctness or otherwise of the recording of evidence under Order 16. Undoubtedly interference has been made in revision but the question whether irreparable loss or failure of justice is caused and if so in what particular circumstances, was neither agitated in those cases nor discussed at length. It is only in the judgment of Narain Lal v. Someshwari Dayal's case that the objection was considered and adjudicated upon after a careful examination and consideration of the Scheme of the provision to Section 115 and more particularly Clause (b) of the proviso which mention phrase 'failure of justice or irreparable injury'.'

It was pressed at the time of hearing before the learned Judge, by the defendant on the basis of the various decisions of this Court that interference was made in revisions by this Court in such cases in somewhat similar circumstances. G. M. Lodha, J. distinguished the various authorities of this Court referred to in Ramchand's case on the ground that a specific point was not raised in those decisions that where an order can be challenged in appeal, it cannot be said that it would result in failure of justice or irreparable injury. The learned Judge was of the opinion that because of the conflict of the opinion on this point, the view taken by G. M. Lodha, J. and Joshi, J. requires reconsideration.

4. We have heard the arguments of Mr. R. L. Maheshwari, learned counsel for the petitioner and Mr. L. R. Mehta, learned counsel for the non-petitioners.

5. On the basis of the submissions that were made by the learned counsel for the parties, it will be convenient to formulate the following questions, which require to be answered by us:

(1) Whether the revision under Section 115, C. P. C. would be barred by Clause (b) of proviso to Sub-section (1) of Section 115, C. P. C., as correctness of the order of the learned Additional Civil Judge, Udaipur dated Jan. 15, 1979 can be assailed under Section 105 in an appeal against the decree by setting forth a ground of objection in the memorandum of appeal?

(2) Whether the provisions of Order XVI, Rule 1 (i) (including the proviso), C. P. C. (Rajasthan) are inconsistent with the provisions of Order XVI, Rule 1, C. P. C. as amended by the Civil Procedure Code (Amendment) Act (No. 104 of 1976) and they had ceased to be applicable after Feb. 1, 1977?

(3) Whether the provisions of Order XVI, Rule 1, C. P. C. as amended by the Cavil Procedure Code (Amendment) Act (No. 104 of 1976) are applicable to the suit out of which the revision has arisen Re. Question No. 1:

6. Here, we may notice material portions of Sections 105 and 115 of the Civil P. C.

'105. Other orders.-- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.'

Section 115, C. P. C. is as follows:--

'Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so verted, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court op to any Court subordinate thereto.

Explanation.-- In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'

The expression 'the case which has been decided' used in Section 115, was considered in S.S. Khanna v. Dhillon, AIR 1964 SC 497 (at p. 501), wherein it was observed as under:--

'The expression 'case' is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the Section to the entirely of the proceedings, in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'

The aforesaid decision was considered in Baldev Das v. Filmistan Distributors, AIR 1970 SC 406 (Para 10). Shah, J., as he then was, speaking for the Court, laid down as under :--

'A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy, every order, in the suit cannot be regarded as a 'case' decided within the meaning of Section 115'.

It is, thus, clear that a case may be said tobe decided if the subordinate Court decidesit or adjudicates in a suit some right onobligation of the parties in controversy. Further Explanation to Section 115, C. P. C., toour mind, makes it abundantly clear that theexpression 'any case which has been decided' also includes an order made in thecourse of the suit or other proceeding. Thereis no room for controversy that the HighCourt is empowered to rectify an order ofsubordinate Court at any stage of the suitor other proceeding. Proviso (b) to Sub-section (1) of Section 110, C. P. C. (hereinafter'proviso (b)') lays down that no variation orreversal of any order under Section 115,C. P. C. in the course of a suit or otherproceeding, shall be made by the High Courtuntil and unless it is satisfied that the orderof which revision is sought, if allowed tostand, would either occasion failure of jus-lice or cause irreparable injury to the party,which has challenged it in revision. Sub-section (2) of Section 115 lays down that novariation or reversal of any order can bemade by the High Court in exercise of itspower under Section 115. C. P. C. if an appeal lies against that decree or order to theHigh Court or to any Court subordinate toit.

7. Section 105, C. P. C. enacts that every interlocutory order made in the course of suit or other proceeding which has not been appealed from because no appeal lay or because even though an appeal lay, an appeal was not taken, except an order of remand can be so attacked in an appeal from the final decree on the grounds that there is an error, defect or irregularity in it; and that such error, defect or irregularity has affected the decision of the case. It was so held in Satyadhyan V. Smt. Deorajin Debi, AIR 1960 SC 941. 'Affecting the decision of the case' means affecting the decision of the case on merits. Such error, defect or irregularity in the order, which has affected the decision of the case, may be set forth as a ground of objection in the memo of appeal, which may be filed against the decree. In other words, error, defect or irregularity in any order can be challenged in an appeal against the decree by taking a ground of objection in the memo of appeal.

8. In Narainlal's case (supra), the learned Judge was of the opinion that revisional jurisdiction should not be invoked by the High Court for varying or reversing any order made during the trial of a suit unless the order by itself disposes of the suit or if that order is allowed to stand, it is likely to occasion a failure of justice or cause irreparable injury to the party against whom it is made. He was further of the opinion that in that case the order under revision has neither disposed of the suit nor can it be said that non-interference with it would result in failure of justice within the meaning of proviso (b), as the defendant has remedy under Section 105, C. P. C. inasmuch as he can challenge the impugned order in the memo of appeal. According to the learned single Judge, if any error, defect or irregularity is committed by a subordinate Court while passing an order and it falls under the category of 'case which has been decided' can be challenged by setting forth as a ground of objection in the memo of appeal against the decree that may ultimately be passed; then that order cannot be said to occasion failure of justice or irreparable injury 10 the party against whom that order has been passed. In Ramchand's case (AIR 1980 Raj 128) G. M. Lodha, J., while following Narainlal's case (supra) distinguished the various authorities of this Court Wherein interference was made by the High Court in exercise of its power under Section 115. Civil P. C. against the orders refusing to record evidence under Order XVI, Rule 1, Civil P. C. on the ground that though interference was made, the question regarding failure of justice or irreparable less was neither agitated nor discussed at length. According to him, what was laid down in Narainlal's case (supra) was that when an order can be challenged in appeal, it cannot be said that this would occasion failure of justice or cause irreparable injury. He posed the question that though injury may be caused to the party, who may be compelled to tile appeal, will it be called irreparable injury In Ramchand's case he observed:

'I am of the opinion that the same applies to the interpretation of Sub-clause (b) of Proviso of Sub-section (1) of Section 115, C. P. C. The petitioner who comes to this Court for invoking the jurisdiction under Section 115, C. P. C. should by cogent reasons arid material on the record, make out a clear case of failure of justice or irreparable injury.'

It will also be useful here to excerpt para 15 of the report:--

'15. For all the above reasons, I am ofthe opinion that though the impugned ordermay be challenged in an appeal, if the judgment finally goes against the defendant inthe civil suit, there is absolutely absence ofproof of failure of justice or irreparable injury in this case, so far as the invoking ofthe jurisdiction of this Court under Section 115,C. P. C. is concerned.' We have carefully considered Narainlal's case(supra) and Ramchand's case in the light ofSections 105 and 115, Proviso (b), C. P. C.It was clearly laid down in S. S. Khanna'scase (AIR 1964 SC 497) that where the decision itself is not appealable to the HighCourt directly, exercise of the revisionaljurisdiction by the High Court would not bedeemed excluded. Apart, from that theobject behind Section 115, C. P. C. is to provide means to an aggrieved party to obtaincorrection or rectification of non-appealableorder though this power has to be exercisedon the fulfilment of all the conditions, laiddown in it. If the interpretation which hasbeen taken in Narainlal's case (supra) andRamchand's case is accepted, that will, in ouropinion, frustrate the very purpose andobject, of Section 115, C. P. C. Apart fromthis, it should also not be lost sight of that,amongst others, the Explanation to Section 115unambiguously lays down that in Section 115, expression 'any case which has been decided'includes any order made in the course of asuit or any other proceeding. This Explanation is more than clear that 'case decided'means even a part of case and as such onthe fulfilment of the conditions laid down inProviso (b), interference can be made withthe order refusing to record evidence. Itfollows from what has been discussed abovethat if any jurisdictional error has been committed by the subordinate Court in the courseof a suit or other proceeding, it can be corrected in revision provided that order has occasioned failure of justice or caused irreparable injury to the party against whom the order has been made The mere fact that such an order can be challenged by setting forth an objection in memo of appeal against the decree under Section 105, C. P. C. would not be sufficient for not invoking the revisional jurisdiction under Section 115, C. P. C. on the ground that as that order can be challenged by setting forth as a ground of objection in the memo of appeal against the decree in an appeal it cannot be said to occasion a failure of justice or not to have caused irreparable injury to the party against whom it was made. On the basis of S.S. Khanna's case (AIR 1964 SC 497) and Baldevdas's case (AIR 1970 SC 406) and the Explanation to Section 115, C. P. C., we are unhesitatingly of the opinion that the inter-locutory order relating to jurisdictional error, if it falls within the expression 'any case which has been decided', can be challenged in revision provided the aggrieved party satisfies the High Court that that order has resulted in failure of justice or has caused irreparable injury to him. The contrary view taken in Narainlal's case (supra) and Ramchand's case is overruled. For the reasons aforesaid, our answer to the first question formulated by us is that the order dated Jan. 15 , 1979 is revisable and the revision is not barred by Clause (b) of proviso to Sub-section (1) of Section 115, C.P.C. inetely because the correctness of the order dated Jan. 15, 1959 of the learned Additional Civil Judge, Udaipur, can be challenged under Section 105, C. P. C. in an appeal against the decree by setting forth a ground of objection in the memorandum of appeal. Re. Question No. 2 :

9. Now, we take up second question, namely, whether the provisions of Order XVI, Rule 1 (i) (including the proviso), C. P. C. (Rajasthan) are inconsistent with the provisions of Order XVI, Rule 1, C. P. C. as amended by the Civil P. C. (Amendment) Act (No. 104 of 1976) and so they had ceased to be applicable after Feb. 1, 1977?

18. We may read material portion of Order XVI, Rule 1, C. P. C. which is in force from Feb. 1, 1977. It is as under :--

'Rule 1. List of witnesses and summons towitnesses:

(I) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of

witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) ... .. ... ... ..

(3) The Court may, for reasons to be recorded , permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) ... ... ... ... ...'

Order XVI, Rule 1, C. P. C. as substituted by the Rajasthan High Court in exercise of its powers under Section 122, C. P. C., reads as under:--

' (i). On such date as the Court may appoint and not later than thirty days after the settlement of issues, each party shall present in Court a list of witnesses whom it proposes to produce: (23-3-1961)

Provided that a party giving evidence in rebuttal may file a list of witnesses not LATER THAN FIFTEEN DAYS FROM THE DATE OF closure of the evidence of his opponent (19-11-1970)

(ii) No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in Sub-rule (i) except with the permission of the Court and the Court granting or refusing such permission, shall record reasons for so doing (23-3-1961 and 19-11-1973).

(iii) ... .. ... ... ..

(iv) .. ... ... .. ...'

11. Section 97 of the amendment Act deals with Repeal and Savings made by the amendment Act. Sub-section (1) of Section 97 of the amendment Act lays down that any amendment made, or any provision inserted in the Civil P. C. 1908, by a State Legislature or a High Court before the commencement of the amendment Act, shall except so far as such amendment or provision is inconsistent with the provisions of the said Code, shall stand repealed. Sub-section (2) of Section 97 of the amendment Act lays down the extent of applicability of the amendments and insertions, made by the amendment Act. Sub-section (3) of Section 97 of the amendment Act says that except as otherwise provided the provisions of the Civil P. C. 1908, as amended by the Civil P. C. (Amendment) Act, 1976, shall apply to every suit, appeal, proceeding or application pending on the date off commencement of the amendment Act.

12. Before we proceed further, we have to first find out the tests for determining when the two provisions can be said to be inconsistent.

13. According to Black's Legal Dictionary, 'inconsistent' means 'mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other'.

14. Their Lordships of the Supreme Court in Basti Sugar Mills v. Stale of U. P., (1979) 2 SCC 88 : (AIR 1979 SC 262), while considering Section 34 of the Bonus Act, 1955 and Section 3(b) of the U. P. Industrial Disputes Act, 1947, held as under:--

'If they relate the same subject-matter to the same situation, and both substantially overlap and are co-extensive and at the same tone no contrary and repugnant in these terms and impact that one must perish wholly k the other were to prevail at all then, only then, are they inconsistent.'

Order XVI, Rule 1, C. P. C. deals with the list of witnesses and summons to witnesses. Order XVI, Rule 1, C. P. C. provides that within the time specified therein after the date on which the issues are settled, the parties shall file in Court the list of witnesses whom they propose to call for; (i) either to give evidence; (ii) to produce documents and obtain summonses to such persons, for their attendance in Court. The time specified under Sub-rule (1) of Order XVI, is any date which may be specified by the Court after the data on which the issues are settled but in arty case not latter than 15 days after that date. There is no provision made in Order XVI, Rule 1, C. P. C. for filing fist of the witnesses by the defendant in rebuttal after the closure of the plaintiff's evidence, for, the words used in Order XVI, Rule 1 (1), C. P. C. are 'parties shall present in Court a list of witnesses within the time specified therein'. Order XVI, Rule 1 (i), C. P. C. (Rajasthan) provides that on the date which may be appointed by the Court but not later than thirty days after the settlement of issues, each party to the suit may file list of witnesses. Under Order XVI, Rule 1, C. P. C. the period provided is fifteen days whereas in Order XVI, Rule 1, C. P. C. (Raj.) the period mentioned is thirty days for filing list of witnesses. Under the proviso to Rule 1 (i) of Order XVI, C. P. C. (Rajasthan), the party who Wants to produce evidence in rebuttal, has been given a right to file list of witnesses not later than fifteen days from the date of the closure of the evidence of its opponent.

There is no such provision, as stated above, in Order XVI, Rule 1, C. P. C. According to Section 97 (1) of the amendment Act, any amendment made or any provision inserted in the Civil P. C., 1968 by a Slate legislature or a High Court, before the commencement of the amendment Act, shall, except so far as such amendment or provision is inconsistent with the previsions of the said Code, shall stand repealed.

15. The learned single Judge, who made the reference, has observed: 'Prima facie it also appears that both the provisions can co-exist''. There cannot be any controversy that Order XVI, R, 1, C. P. C. and Order XVI, Section 1(i) (including the proviso), C. P. C. (Rajasthan) cover the same field. In other words, they relate to the same subject-matter, namely, Sling of list of witnesses and summonses to them. Both the aforesaid provisions relate to the filing of the list of wit-nesses after the settlement of the issues by the parties to the suit. The subject-matter is the same. The provisions substantially overlap and are co-extensive. If Order XVI, Rule 1 (i) (including the proviso), C. P. C. (Raju) is to prevail and remain applicable, each party can file in Court list of witnesses to whom it proposes to examine on the date that may be appointed by the Court but not later than thirty days after the settlement of the issues and also a party who wants to produce evidence in rebuttal can file a list of witnesses not later than fifteen days from the date of closure of she evidence of its opponent whereas under Order XVI, Rule 1, C. P. C. parties to the suit are required to file fist of witnesses whom they propose to examine or to produce documents on or before the date, which, may be fixed by the Court, but in any case not later than fifteen days after the date on which issues have been settled. No right has been given under Order XVI, Rule 1, C. P. C. to the party in leading evidence in rebuttal to file list of witnesses after the closure of the evidence of its opponent. It is, thus, dear that Order XVI, Rule 1 (i) (including the proviso), C. P. C. (Rajasthan) and Order XVI, Rule 1, C. P. C. are contrary in respect of the matters specified hereinabove. Both cannot prevent simultaneously for the result of giving effect to one in its terms, the other is to perish wholly. The words used in Section 91 (1) of the amendment Act are 'amendment made or any provision inserted in the Civil P. C. 1968 by a State Legislature or a High Court, before the commencement of the aforesaid amendment Act, shall except so far as such amendment or provision presonsistent with the pro-visions of the said Code, shall stand repealed.' We have not been shown any good reason by which the incensistency of the aforesaid two provisions can be avoided. Order XVI, Rule 1 (i) (including the proviso) C. P. C. (Rajasthan) is inconsistent with the provisions of Order XVI, Rule 1, C P. C. and in our considered opinion, both cannot stand together as they relate to the same subject-matter to the same situation and substantially cover the same field. In view of Section 97 (I) of the amendment Act and in the light of the principles laid down in Basti Sugar Mills' case (AIR 1979 SC 262) we have reached the conclusion that the provisions of Order XVI, Rule I (i) (including the proviso), C P. C. (Rajasthan) are inconsistent with the provisions of Order XVI, Rule 1. C. P. C. and as such they ceased to be applicable after Feb. 1, 1977. Re. Question No. 3 :

16. The only question that remains to be answered is whether the provisions in Order XVI, Rule 1. C. P. C. as amended by the amendment Act are applicable to the suit out of which the revision has arisen ?

17. A few facts may be recalled. The original suit was instituted on May 6, 1976. The amended plaint was filed on Oct. 8, 1976. Issues were framed on May 9, 1977 and they were amended on July 22, 1977. It is, thus, clear that the issues were framed and amended after Feb. 1, 1977, when the provisions of Order XVI, Rule 1, C. P. C. had comes into force. Section 97 (2) of the amendment Act lays down the extent of applicability of the amendment Act to the pending proceedings and subjection (3) of Section 97 say that except as otherwise provided the provisions of the Code of Civil Procedure (Amendment) Act, 1976 shall apply to every suit, appeal, proceeding or application pending on the data of commencement of the amendment Act. There is no mention of Order XVI, Rule 1, that it will not apply to the pending suit in Section 97 (2) of the amendment Act. In these circumstances, though the suit was instituted prior to Feb. 1, 1977, the date when the amendment Act came into force, still in view of Section 97 (2) and (3) of the amendment Act, Order XVI, Rule 1, C. P. C. is applicable to the suit out of which the revision has arisen. We answer the third question formulated by us accordingly.

19. In the referring order, the learned single Judge has stated as under:--

'It may be noted that provisions of Order 16, Rule 1 are directory and not mandatory.'

As the question whether the provisions of Order XVI, Rule 1, C. P. C. are directory or mandatory does not arise in the revision, though the learned single Judge has stated so while making the reference, we refrain from expressing any opinion on it.

19. In view of the answers to the questions above, the revision petition is dismissed without any order as to costs.

20. Learned counsel appearing for the petitioner submitted that the learned Additional Civil Judge, Udaipur may be directed to permit the defendant to examine Saifuddin, Mohd. Hussain, Yusuf, Zakir and Surendra as his witnesses in defence under the amended provisions of Order XVI, Rule 1, C. P. C. on sufficient cause being shown.

21. We do not consider it proper to pass any order in this regard. It may, however. be mentioned that this order will not preclude the learned Additional Civil Judge, Udaipur to consider, as and when such a request for the examination of the aforesaid witnesses is made in writing and, thereafter, to pass an appropriate order in accordance with law.


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