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Vishnu Kumar Vs. State Bank of Bikaner and Jaipur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 474 of 1975
Judge
Reported inAIR1976Raj195; 1976(9)WLN222
ActsCode of Civil Procedure (CPC) , 1908 - Order 10, Rules 1, 2 and 4
AppellantVishnu Kumar
RespondentState Bank of Bikaner and Jaipur and ors.
Appellant Advocate H.C. Jain, Adv.
Respondent Advocate M.M. Vyas, Adv.
DispositionPetition allowed
Cases Referred and Chetanram v. Mangharam
Excerpt:
.....complying with order 10 rules 1 & 2--held, it is illegal exercise of jurisdiction.; the learned district judge did not comply with the provisions of order 10 rule 1 and 2, cpc inasmuch as that he did not examine the learned counsel for the defendants when such counsel was duly instruct ed by the defendants. the power under order 10 rule 4, cpc could only be invoked if after the examination of the learned counsel for the defendants under order 10 rule 2, cpc the court still felt that further elucidation was necessary on material points the order of the learned district judge is, therefore, clearly in contravention of the provisions of order 10 rule 2, cpc. ;(b) civil procedure code - section 115--revision--illegal exercise of jurisdiction--held, revision under section 115..........defendant vishnu kumar as a duly authorised and instructed counsel is appearing on his behalf. the learned district judge on 2-9-1975 held that the defendant vishnu kumar should appear personally in the court for examination under the provisions of order 10 rule 4, cpc. the defendant vishnu kumar feeling aggrieved against this order of the learned district judge has come up in revision before this court.3. on behalf of the defendant-applicant vishnu kumar, it has been contended that the learned district judge acted illegally and with material irregularity in ordering that the defendant should appear in person for examination under the provisions of order 10 rule 4, cpc. it was contended that the application made by the plaintiff purported to be one under order 10 rules 1 and 2, cpc, and.....
Judgment:
ORDER

P.D. Kudal, J.

1. This is a revision petition under Section 115, CPC against the order of the learned District Judge, Pali dated September 2, 1975.

2. The facts of the case which are relevant for the disposal of this revision petition are that the State Bank of Bikaner and Jaipur filed a suit against the defendants for the recovery of a sum of Rs. 76,281.21. Along with the plaint some documents were also produced. On behalf of the plaintiff an application under Order 10 Rules 1 and 2, CPC was filed on July 4, 1975, wherein it was contended that the admission and denial of the documents on behalf of the defendant Vishnu Kumar were not specific, and as such, the defendant Vishnu Kumar may be examined orally. On behalf of the defendants, a reply was submitted on July 8, 1975 stating therein that the admission and denial of documents have been in accordance with General Rules (Civil), 1952, and that there was no occasion for examining the defendant Vishnu Kumar as a duly authorised and instructed counsel is appearing on his behalf. The learned District Judge on 2-9-1975 held that the defendant Vishnu Kumar should appear personally in the Court for examination under the provisions of Order 10 Rule 4, CPC. The defendant Vishnu Kumar feeling aggrieved against this order of the learned District Judge has come up in revision before this Court.

3. On behalf of the defendant-applicant Vishnu Kumar, it has been contended that the learned District Judge acted illegally and with material irregularity in ordering that the defendant should appear in person for examination under the provisions of Order 10 Rule 4, CPC. It was contended that the application made by the plaintiff purported to be one under Order 10 Rules 1 and 2, CPC, and thus there was no occasion for the learned District Judge to have passed an order under the provisions of Order 10 Rule 4, CPC. It was further contended that if a duly authorised and instructed counsel was appearing on behalf of the defendant-applicant, then under the provisions of Order 10 Rules 1 and 2, CPC, questions ought to have been put to the learned counsel, and if the learned District Judge felt that still some further elucidation was necessary, then alone the powers under Order 10 Rule 4, CPC could be invoked, and the defendants could be directed to appear in person, Reliance was placed on Sadeshwar Narain v. Qadir Baksh, AIR 1918 Oudh 429. Parmarath v. Krishna Dayal, AIR 1933 All 517 and Chetanram v. Mangharam, 1956 Raj LW 339.

4. On behalf of the plaintiff-respondent, it was contended that though the application was made under Order 10 Rules 1 and 2, CPC, yet an order could be passed under Order 10 Rule 4, CPC. It was also contended that the case law cited by the learned counsel for the defendant-applicant does not apply to the facts and circumstances of the present case. It was also contended that the learned lower Court had jurisdiction to decide the application which was mode under Order 10 Rules 1 and 2, CPC, and that a Court of Revision has no jurisdiction to interfere in such interlocutory orders. It was also contended that a Court of revision shall interfere only when there is an improper exercise of jurisdiction, or that there has been a patent illegality in the procedure.

5. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. The plaintiff applied under Order 10 Rules 1 and 2, CPC for examination of the defendant, as the plaintiff contended that the denial and admission of the documents were not specific, and a vague reply has been given. The learned District Judge considered the admissions and denials made by the learned counsel for the defendant Vishnu Kumar, and felt that it needed further elucidation as the admissions and denials were not of a specific character. The ratio decidendi laid down in the rulings cited by the learned counsel for the defendant-applicant is that if the party has a duly authorised and instructed counsel, then the counsel should be initially examined under the provisions of Order 10 Rules 1 and 2, CPC, and if after that examination the Court feels that further elucidation is still necessary then orders could be issued under the provisions of Order 10 Rule 4, CPC. In the present case, the defendants had given a specific rep]y that a duly authorised and instructed counsel is appearing on their behalf. The learned District Judge did not consider this aspect of the case, and passed an order under the provisions of Order 10 Rule 4, CPC directing the defendant Vishnu Kumar to appear in person. The learned District Judge did not comply with the provisions of Order 10 Rules 1 and 2, CPC inasmuch as that he did not examine the learned counsel for the defendants when such counsel was duly instructed by the defendants. The power under Order 10 Rule 4, CPC could only be invoked if after the examination of the learned counsel for the defendants under Order 10 Rule 2, CPC the Court still felt that further elucidation was necessary on material points. The order of the learned District Judge is, therefore, clearly in contravention of the provisions of Order 10 Rule 2, CPC, and there has been an illegal exercise of jurisdiction in not following the procedure laid down under Order 10 Rules 1 and 2, C. P.C. The preliminary objection raised on behalf of the plaintiff-respondent that the revision does not lie, in face of these circumstances, cannot be sustained. The preliminary objection is, therefore, overruled.

6. For the reasons stated above, the revision petition is allowed, and the order of the learned District Judge is hereby set aside. The learned District Judge shall examine the learned counsel for the defendant-applicant under Order 10 Rule 2, CPC and if after examination of the learned counsel for the defendant, the learned District Judge still feels that certain further elucidation is necessary on material points, he may call upon the defendant to appear in person to answer such questions as may be necessary under the provisions of Order 10 Rule 4, CPC.

7. The learned counsel for the defendant-applicant also urged that as the Presiding Officer has changed, a discretion may be given to him to examine the learned counsel for the defendant or the defendant or not. I am afraid, this submission of the learned counsel for the defendant cannot be entertained as a Court of law goes by interpretation of statutes and not by the discretion which a Presiding Officer may exercise. An application under Order 10 Rules 1 and 2, CPC has been made and the Court has to pass a definite order. By mere change of a Presiding Officer, the interpretation of the provisions of Order 10 Rules 1 and 2, CPC cannot change.

8. Hence, the revision petition is allowed, and the case is remanded to the learned District Judge, Pali for disposal of the application under Order 10 Rules 1 and 2, CPC in the light of the observations made above.


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