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Nand Kishore and ors. Vs. Gauri Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 65 of 1950
Judge
Reported inAIR1951Raj48
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 26, Rule 1
AppellantNand Kishore and ors.
RespondentGauri Lal
Appellant Advocate Jagan Prasad, Adv.
Respondent Advocate Jagdish Prasad, Adv.
DispositionRevision dismissed
Cases ReferredN.S. Venkatagiri Iyengar v. Hindu Religious Endowment Board
Excerpt:
.....exercised. c, are satisfied. c, are satisfied in this..........lower court has neither refused to issue summons to any witness of the applicants, nor refused to issue commission. in fact, the commission was issued, but on account; of the fact that the name or the designation of the person to be examined was not clearly given and the name of the person who was dead was given, the learned munsif refused to give any further time to the applicant. it was within the discretion of the learned munsif to give time or not under such circumstances. i am not concerned with the fact whether the discretion was rightly or wrongly exercised. even if it was wrongly exercised, the action of the munsif cannot be said to amount to failure to exercise jurisdiction vested in him or illegality or material irregularity in the exercise of his jurisdiction. if the.....
Judgment:
ORDER

Sharma, J.

1. This is an application by the defendants to revise the order of the learned Munsif Alwar rejecting the defendants' request to direct the commissioner at Dehradun to record the statement of one Ramkishan Das of the firm Mitrasen Jagannath at Deharadun and arises under the following circumstances. The defendants got a commission issued for the production of certain account books of the firm Mitrasen Jagannath at Dehradun. In the first instance they named Jagannath, proprietor of the firm, as witness who was to be examined and produce the account books of the firm. Subsequently, however, they omitted the name of any person and wanted a commission to be issued only for the firm Mitrasen Jagannath. When, however, the Com- missioner proceeded to examine the witness, it was found that Jagannath had long since been dead. The defendants wanted to examine Bam Kishan in place of Jagannath, but the commissioner did not comply until he had received a direction from the Court issuing the commission. When the direction was sought, the learned Munsif rejected the request of the defendants saying that the proceedings of the commission had been pending for a very long time and it was for the defendants to have given the correct names in the first instance The defendants have come in revision against this order.

2. It was argued by the learned counsel for the applicant that the learned Munsif failed to exercise jurisdiction which he had to issue the commission for the examination of Ram Kishan Das under Order 26, Rule 1, Civil P. C, or at least he an illegality in not directing the record the statement of the said was contended that the defendants had not named any particular parson to be examined on commission but the firm mitrasen Jagannath and therefore the Munsif should have ordered the recording of the statement of Ram Kishan Das , who was the proprietor of the firm, on commission . The rulings reported in Ghulam Bimlimmmad v. Rasul Bibi, A.I.R. (18) 1931 Lah. 135 : (132 I. C. 579), Santram v. Ishwar A.I.R. (20) 1933 Lah. 538 : (145 I. C. 329), M. G. Sheth & Co. v. Ramiza Bi, A.I.R. (25) 1938 mad 646 : (178 I. C. 290), Mrs. Zohada Begam Sahiba v. Messrs. Haji Dawood Ayed Firm A.I.R. (27) 1940 pat. 437 : (189 I. C. 468) and Bhuralal v. Kasim, A.I.R. (37) 1950 Ajmer I were referred to.

3. In Ghulam Mohammad v. Rasul Bibi, AIR (18) 1931 Lah. 135 : (132 I. C. 579) it was held that Order 36, Rule 1 renders it obligatory on a court to issue summons on an application made by either of the parties at any time after the institution of the suit. The Court cannot disregard the clear provisions of the Civil Procedure Code in this respect even though the though the conduct of party as been scandalous and reprehensible in not complying with the orders of the Court as to the payment of the process-fee and diet money. Revision was allowed against the order of the tower Court refusing to issue summons to the witness of the plaintiff in that case. In santram v. Ishwardas, A.I.R. (20) 1933 Lah. 538 : (145 I. C. 329) an arbitrator was summoned as a witness but the Court refused to summon him. It was held that the conduct of the Court in not summoning the arbitrator under the circumstances of the case was not only a material irregularity but it was an illegality and so the order passed by the lower Court filing the award and passing decree on its basis was improper. In that case it would appear that the revision was against the order filing the award and that revisions was allowed on the ground that the lower Court acted illegally in not summoning the arbitrator. In the Madras case the lower Court refused to issue the commission for the examination of the witnesses residing outside British India, whom it could not compel to appear before court. In Zohada Begum Sahiba v. Haji Dawood Ayed Firm A.I.R. (27) 1940 pat. 437 : (189 I. C. 463), too, the commission was refused for the examination of a witness living more than 200 miles from the Court where the suit was pending. In the Ajmer case the defendant got summons issued for the examination of a certain witness, but he died in the meanwhile. The other witness was not available. The lower Court abruptly closed the case and the defendant's request to produce another attesting witness of the mortgage deed was turned down. The revision was accepted on the ground that it was not within the power of the defendant to examine the witness who had died and the witness who was not available. Therefore, the lower Court was wrong in abruptly closing the case.

4. It is clear from the perusal of the facts of all the said cases that they were quite different from the facts of the present case. I have no necessity to say in this revision whether the circumstances, under which the revision applications were allowed in the cases referred to before me, warranted interference in revision or not. In some of the cases the Court refused to issue summons at all. In others the issue of the commission was altogether refused, although under the circumstances it should have been legally issued. In the present case, the lower Court has neither refused to issue summons to any witness of the applicants, nor refused to issue commission. In fact, the commission was issued, but on account; of the fact that the name or the designation of the person to be examined was not clearly given and the name of the person who was dead was given, the learned Munsif refused to give any further time to the applicant. It was within the discretion of the learned Munsif to give time or not under such circumstances. I am not concerned with the fact whether the discretion was rightly or wrongly exercised. Even if it was wrongly exercised, the action of the Munsif cannot be said to amount to failure to exercise jurisdiction vested in him or illegality or material irregularity in the exercise of his jurisdiction. If the discretion was not rightly exercised, the applicants might well have a remedy in appeal which might be filed against the decree which might be ultimately passed by the Munsif, but in revision an order cannot be set aside on the ground that the discretion was not rightly exercised.

5. In a recent ruling in N.S. Venkatagiri Iyengar v. Hindu Religious Endowment Board, Madras, A.I.R. (36) 1949 P.C. 156: (76 I.A. 67), their Lordships held that interference cannot be made in revision even though a subordinate Court makes gross and palpable errors in law. A revision lies only when the conditions given in Section 115, Civil P. C, are satisfied.

6. I do not find that any of the conditions in Section 116, Civil P. C, are satisfied in this case.

7. The application for revision is dismissed, The coats shall be the costs in the cause.


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