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Harish Vs. Som Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 400 of 1980
Judge
Reported inAIR1982Raj77
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 14, Rule 5
AppellantHarish
RespondentSom Nath and ors.
Appellant Advocate B.M. Singhvi and; M.D. Boob, Advs.
Respondent Advocate L.R. Calla and; Rewa Chand, Advs.
DispositionRevision partly allowed
Cases ReferredIn Modi Spg. Wvg. Mills v. Ladha Ram
Excerpt:
.....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. are satisfied. 1, 2, 3, and 6 stated in the application do arise and thelearned civil judge while, declining to frame these additional issues has failed to exercise jurisdiction vested in him or at any rate, has exercised jurisdiction with material irregularity. 4. i am also satisfied that if the issues which have been referred to above are not framed and the order under revision is allowed to stand, it would cause irreparable injury to defendant no......that the order dismissing the application under order xiv, rule 5, c. p. c. where by refusing to frame additional issues is a 'case decided', and therefore, the revision against such an order is competent.6. i proceed to examine the preliminary objection first.7. section 115, c. p, c. reads as under:--'115. 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 liesthereto, 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 vested, 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.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. This is a plaintiffs' revision under Section 115, C.P.C. directed against the order dated September 27, 1980 of the learned Civil Judge, Pali by which he dismissed the application under Order XIV, Rule 5, C. P. C. on Sept., 6, 1980 which was filed on behalf of the guardian-ad-litem of the minor defendants No. 2, 3, 7 and 8 for framing of the additional issues.

2. The defendant-non-petitioners instituted a suit for redemption of mortgage and rendition of accounts on January 8, 1973. The plaint is dated Dec. 11, 1972. The suit was resisted by defendants Nos. 1 & 4 on various grounds by filing a written statement dated Jan. 10, 1974. A rejoinder was filed by the plaintiffs on Feb. 28, 1974. On behalf of minor defendants Nos. 2, 3, 7 and 8, guardian-ad-litem filed the written statement on July 15, 1973. The learned Civil Judge framed as many as 16 issues inclusive of the relief. Issue No. 13 relating to the Court fee was decided in favour of the defendants and the plaintiffs were directed to make up the deficit Court fee and amend the plaint On Jan. 5, 1979, defendant No. 2 Harish moved an application under Order XXXH, Rules 3 and 4 read with Section 151, C.P.C. praying that as he has become major one month before the date of the application he may be permitted to file the written statement and his guardian-ad-litem may be removed and in the light of the written statement that may be filed by him, issues may be struck and evidence may be recorded. On Feb. 3, 1980, the learned Civil Judge directed that defendant No. 2 may participate in the proceedings and if he likes, he may also examine himself as witness and produce evidence. S. B. Civil Revision No. 101/80: Harish v. Somnath was filed against the order. The revision was dismissed on May 7, 1980. After dismissal of the revision, on Sept. 6, 1980, an application was moved by defendant No. 2 Harish under Order XIV, Rule 5, C.P.C., praying that in view of the written statement that was filed on behalf of the minor defendants by the guardian-ad-litem, necessary additional issues arising out of that were not framed and, therefore, issues Nos. 1 to 6 stated inthe application may be framed. This application was opposed on behalf of the plaintiffs by filing a reply on Sept. 20, 1980. The learned Civil Judge, by his order dated Sept. 27, 1980, dismissed the application. Defendant No. 2 has come to this Court in revision as aforesaid.

3. Learned counsel for the parties stated that the revision may be disposed of at the admission stage. This Court, therefore, ordered that the revision will be taken up for hearing after service on non-petitioners No. 4 to 10. Record has been received.

4. I have heard learned counsel for the parties.

5. A preliminary objection was raised by Mr. Calla that revision against the order dated Sept. 27, 1980 of the Civil Judge is not maintainable as it is an order dismissing the application under Order XIV, Rule 5, C. P. C. and the dismissal as such has not determined the rights and obligations of any of the parties. This preliminary objection is opposed by Mr. B.M. Singhvi. He contends that when the application under Order XIV, Rule 5, C. P. C. was dismissed, it certainly amounts to adjudication of the rights and obligations of the parties in controversy and that, in any case, in view of Explanation added to Section 115, C. P. C. by the C. P. C. Amendment Act (No. 104 of 1976) the order dismissing an application under Order XIV, Rule 5, C. P. C. comes within the ambit of the expression 'case which has been decided'. On the basis of Sadhu Ram v. Ghanshyam Dass, AIR 1975 Punj & Har 174, Chotanagpur Banking Assn. v. Rajib Nath, AIR 1947 Pat 40, Khazana v. Surjan, AIR 1953 Bilaspur 33 and Bishan Singh v. Murti Shivji AIR 1969 J & K 50, Mr. Singhvi contended that the order dismissing the application under Order XIV, Rule 5, C. P. C. where by refusing to frame additional issues is a 'case decided', and therefore, the revision against such an order is competent.

6. I proceed to examine the preliminary objection first.

7. Section 115, C. P, C. reads as under:--

'115. 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 liesthereto, 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 vested, 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 or 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'.

In S.S. Khanna v. F. J. Dhillon, AIR 1964 SC 497 (at p. 501), 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 entirety 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 power 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 decision was considered in Baldevdas v. Filmistan Distributors, AIR 1970 SC 406, wherein, 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.'

In Modi Spg. Wvg. Mills v. Ladha Ram & Co., AIR 1978 All 260, it was observed by a learned single Judge as under (At p. 263):--

'Order 14 of the Civil P. C. lays down rules for the settlement of issues and determination of suits on issues of law or on issues agreed upon. Under Rule 1 issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Rule 2 gives a discrection to the Court to decide a particular issue as a preliminary issue. Rule 3 gives a discretion to the Court to frame issues on the basis of the allegations made on oath by the parties or by the persons present on their behalf or made by the pleaders of such parties, the allegations made in the plaint or in answer to interrogatories delivered in the suit and on the basis of the documents produced by either party. Rule gives power to the Court to examine witnesses or documents before framing issues. By Rule 5 power is conferred on the Court to amend and strike out issues. Further power is given under Rule 5 to frame additional issues on such terms as it thinks fit or as may be necessary for determining the matter in controversy between the parties. The power to frame additional issues is a discretionary power of the trial Court. Additional issues may be framed if the Court thinks necessary for determining the matter in controversy. By an order refusing to frame additional issues or allowing an application for framing of additional issues no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter only of procedure. The Court, after examining the pleading and other material on record as required under Rule 3, may frame the issues. Since no right or obligation of a party is determined by an order refusing to frame additional issues such an order cannot be held to be deciding a case between the parties and in my opinion, it would not come within the ambit of the expression 'case which has been decided'. Similar would be the position in regard to an order by which additional issues are framed or amended.'

The Full Bench of the Punjab and Haryana High Court in M/s. Sadhuram's case, AIR 1975 Punj & Har 174, considered S.S. Khanna's case, AIR 1964 SC 497 and Baldeo Dass's case, AIR 1970 SC 406 and took the view that a revision lies to the High Court against an order of a subordinate Court refusing to change the onus of an issue. Explanation to Section 115, C. P. C. makes it abundantly clear that the expression 'any case which has been decided' also includes an order made in a suit or other proceeding. The High Court has, therefore, power to rectify an order of a subordinate Court at any stage of the suit or proceeding.

8. In the light of the principles of law enunciated in the above authorities of the Supreme Court the question has to be decided whether an order dismissing the application under Order XIV, Rule 5, C.P.C. falls within the words 'case decided'. The dismissal of the application under Order XIV, Rule 5 thereby refusing to frame additional issues, in my opinion, would certainly be an adjudication in; the course of a suit of some right or obligation of the parties in controversy and so according to the law enunciated by their Lordships of the Supreme Court, such an order would fall within the words 'case decided', as it has beenj passed in the course of a suit. I respectfully express my dissent with Modi Spg's case, AIR 1978 All 260 and hold that a revision is maintainable. The order dismissing the application under Order XIV, Rule 5, C. P. C. thereby refusing to frame additional issues arising out of the pleadings of the parties can be revised provided the conditions laid down in the poviso appended to Section 115, C. P. C. are satisfied. I, therefore, overrule the preliminary objection raised by Mr. L.R. Calla, learned counsel for non-petitioners Nos. 1 to a.

9. This brings me to the merits of the revision.

10. I have carefully examined the order of the learned Civil Judge by which he declined to frame additional issues. In view of the averments made in the plaint and the written statement of defendants Nos. 2, 3, 7 & 8, I am of opinion that issues Nos. 1, 2, 3, and 6 stated in the application do arise and thelearned Civil Judge while, declining to frame these additional issues has failed to exercise jurisdiction vested in him or at any rate, has exercised jurisdiction with material irregularity. So far as issue No. 5 stated in the application is concerned, there is no necessity for framing this issue as issue No. 2 has already been framed covering its subject matter. Having considered the mortgage-deed and the pleadings, I am of opinion that it is not necessary to frame issue No. 4. I am also satisfied that if the issues which have been referred to above are not framed and the order under revision is allowed to stand, it would cause irreparable injury to defendant No. 2.

11. I, therefore, allow this revision petition in part and modify the order dated Sept. 27, 1980 of the Civil Judge and direct him to frame issues Nos. 1, 2, 3 and 6 stated in the application dated Sept 6, 1980. The learned Civil Judge will take further proceedings in the suit in accordance with law. The parties will be free to lead evidence in regard to the aforesaid additional issues. In the circumstances of the case, I leave the parties to bear their own costs.


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