Rajasthan High Court - Jaipur
Smt. Sudha And Anr. vs Manmohan And Ors. on 23 February, 1995
Equivalent citations: AIR1996RAJ59, 1995(3)WLC195, 1995(1)WLN281
Author: R.R. Yadav
Bench: R.R. Yadav
ORDER R.R. Yadav, J.
1. The instant revision petition has been posted for disposal of the stay application in the Daily Cause List although vide order dated 9-2-95, the office was directed to list this case today for hearing. However, with the consent of learned counsel appearing for the parties, this revision petition is being heard and decided on merits at admission stage.
2. The factual matrix of the case necessary to be noticed for disposal of the present revision petition, are that the respondents submitted an application under Section 20 of the Arbitration Act on 28-3-89 as there was a clause in the partnership deed of the firm Agra Sweet Home, Sojatiya Gate, Jodhpur dated 3-9-80 by which a new firm under the name and style was constituted in place of the old firm which had previously been constituted vide partnership deed dated 1-4-77 stipulating that in case of a dispute in between the partners it shall be referred to arbitration. It is to be noticed that the matter was instituted under the Arbitration Act along with an application under Order 40, Rule 1, C.P.C. which was registered as case No. 10-B/89 in the court of Civil Judge, Jodhpur. I am constrained to observe that the application which was moved under Order 40, Rule 1, C.P.C. in the year 1989 could not be disposed of even; till 1995 despite due service. It is further noticed that arguments on the aforesaid application could not be heard for one reason or the other till April 2, 1994. On 2-4-1994, the respondents submitted an application under Order 6, Rule 17 read with Order 22, Rule 10, C.P.C. for amendment of the previous application moved under Order 40, Rule 1, C.P.C. by adding new persons in the array of respondents on the plea that respondents Nos. 1 to 4 have closed the old firm and instead of that, a new firm Agra Sweets is carrying on business at that place. It is also alleged that the respondents submitted an application on 1-10-94 for taking on record the affidavits of Man Mohan, Ashok Gupta, Kan Singh, Sunial Gehlot and Ravinder Singh on the plea that filing of further affidavits has become necessary on account of subsequent events. The revisionists before me filed their reply to the said application on 17-10-94 stating therein that the affidavits filed by the aforesaid persons do not relate to subsequent events and further contended that in case the additional affidavits are taken on record then the revisionists should also be allowed to file counter-affidavits.
3. It is brought to my notice that the learned trial court vide its order dated 24-10-94 accepted the prayer of the respondents and received on record the additional affidavits filed by the five persons named-above. The trial court allowed the revisionists to file counter affidavits. The revisionists filed their counter-affidavits controverting the facts stated in the aforesaid five additional affidavits. On 7-11-1994, the revisionists submitted an application under Order 19, Rules 1 and 2, C.P.C. for leave of the Court to cross-examine the aforesaid five persons, who had filed their additional affidavits. Learned Civil Judge heard the arguments on 11-11-94 and dismissed the application moved under Order 19, Rules 1 and 2, C.P.C. for grant of leave of the Court to summon five deponents for cross-examination vide his impugned order dated 16-11-1994 with costs of Rs.200/-.
4. 1 have heard Mr. R. R. Chacha, learned counsel for the revisionists and Mr. L. R. Calla, learned counsel appearing for the respondents at length and critically examined the order dated 16-11-1994 under challenge.
5. The main thrust of arguments of the learned counsel for the revisionists, is that the impugned order passed by the trial Court is perverse and the learned Civil Judge has exercised his jurisdiction illegally with material irregularity in rejecting the application of the revisionists moved under Order 19, Rules 1 and 2, C.P.C. for summoning the witnesses for cross-examination. He further contended that the impugned order passed by the trial Court would occasion failure of justice and cause irreparable injury to the revisionists as contemplated under amended proviso (b) of sub-section (1) of Section 115, C.P.C. In support of his arguments learned counsel for the revisionists has placed reliance upon the decisions reported in (1989) 2 Rajasthan LR 100 : (AIR 1990 Raj 87), (1989) 2 Rajasthan LR 376 : AIR 1990 Raj 127 and (1989) 2 Rajasthan LR 472, 1990 (2) RLR 165 (sic) and 1981 WLN 343 : (AIR 1982 NOC 224).
6. Learned counsel for respondents Nos. 1 to 4 has refuted the aforesaid arguments advanced on behalf of the revisionists and urged before me that mere irregularity in exercise of jurisdiction, jurisdictional error, illegality or impropriety is no ground for interference under the amended Section 115, C.P.C.. In support of his argument, he placed reliance on the decisions reported in AIR 1991 Raj 119 and (1993) 2 Rajasthan LR 764. Learned counsel for the respondents also placed before me a photostat copy of the application moved by the revisionists before the trial Court in order to demonstrate that no specific reason has been disclosed in that application which could have necessitated for the trial Court to summon the aforesaid five witnesses for cross-examination as contemplated under Order 19, Rules 1 and 2, C.P.C. It is also brought to my notice that the revisionists have already filed counter affidavit controverting the affidavits filed by the above five deponents named sin the preceding paragraphs.
7. I have given my thoughtful consideration to the rival contentions raised at the Bar. A close scrutiny of the order impugned throws a flood of light that earlier also the revisionists had come up before this Court and this Court passed the following order, which has been quoted in the impugned order:--
"The order-sheet of the case of the trial Court shows that Sunil Gupta, Smt. Sudha Gupta and others had adopted dilatory tactices. They are moving applications after applications raising technical objections in order that the case may not proceed further."
8. The learned trial Court has recorded a categorical finding that the application moved by the revisionists for summoning the deponents for cross-examination under Order 19, Rule 2, C.P.C. is vague and does not disclose reasons which can be said to be bona fide. According to the trial Court, the summoning of the aforesaid five persons who had filed the additional affidavits for the purpose of cross-examination is not necessary in the interest of justice. In my considered opinion, the present revision filed by revisionists Smt. Sudha Gupta and Sunil Kumar falls within the definition of acrobatic exercise to delay the disposal of the case as well as application moved under Order 40, Rule 1, C.P.C. which is to be deprecated. Undaunted with dismissal of their earlier revision with stricture against them, they have filed the present revision.
9. In my humble opinion, the legality and propriety of the order passed by the trial Court cannot be gone into under Section 115, C.P.C. even if the order of the trial Court is wrong or may not be in accordance with law unless if the order is allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
10. The legislation in modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is directed to the problems before the legislature based on information derived from the past and present experience. In the above back-ground, the original Section 115 was re-numbered as Sub-section (1) thereof by the Civil Procedure Code (Amendment) Act, 1976, which is enforced with effect from 1-2-1977, the proviso added to sub-section (1) of Section 115, C.P.C. is reproduced below:
"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 proceedings, 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 proceedings, 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.
Sub-section (2) of Section 115, C.P.C. along with explanation was further inserted after re-numbering sub-section (1) of Section 115, C.P.C.
11. By Clause 45 of the Bill, Section 115, C.P.C. was proposed to be omitted but later on a Committee was constituted to examine as to whether it is necessary to retain Section 115, C.P.C. in view of Article 227 of the Constitution of India as recommended by the Law Commission twice. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty Seventh Reports, the Committee recommended that Section 115 of the Code should be retained subject to the modification that no revision would lie against an interlocutory order unless either of the conditions enumerated under proviso (a) and (b) added to re-number sub-section (1) of Section 115, C.P.C. is attracted. The Committee felt that the expression of the word "case decided" should be defined, so that, the doubt as to whether Section 115, C.P.C. is attracted in a particular interlocutory order may not remain obscure before a Court of law while exercising its revisional jurisdiction. Accordingly, the Committee has added proviso (a) and (b) and explanation, to Section 115, C.P.C.
12. In the aforesaid back-ground of added sub-section (1) of Section 115, C.P.C., in my opinion, a Civil Revision Petition against the interlocutory order can only be entertained if it fulfil the conditions contained in the proviso either (a) or (b) in addition to the conditions contained in sub-section (1) (a), (b) and (c) of Section 115, C.P.C. A pointed question was asked to the learned counsel for the.revisionists Shri R. R. Chacha as to which of the provision is attracted in the case in hand in addition to the conditions contained under Section 115 (l)(a) and (b) and (c). The learned counsel appearing on behalf of the revisionists pointed out that proviso (b) of sub-section (1) of Section 115, C.P.C. is attracted in the instant case. As according to the learned counsel for the revisionists if the order impugned is allowed by this Court to stand, it would occasion a failure of justice and would also cause irreparable injury to the revisionists. It is not disputed before me that the order impugned is an interlocutory order.
13. A close scrutiny of amended Section 115, C.P.C. reveals that its scope has been amplified with the amendment introduced in the year 1976 as stated in the preceding paragraphs. The expressions "case decided" has received a liberal approach and takes in its fold any interlocutory order made or any order deciding an issue in the course of suit or other proceedings. But there cannot be a strait jacket formula as to when an interlocutory order may amount to a case decided. In my humble opinion, the expression "case decided" includes interlocutory order also and if in exercising its revisional jurisdiction, a re-visional Court is satisfied that if the order impugned is allowed to stand it would occasion failure of justice or would cause irreparable injury to the party against whom it was made the revisional Court has jurisdiction to interfere with such order but not only on the basis of jurisdictional error. The expression "case" used under explanation of amended Section 115, C.P.C. has a wider meaning than the word "suit".
14. In the present case, the trial Court has passed the impugned order refusing to summon the deponents for cross-examination under Order 19, Rule 2, C.P.C. after giving cogent and convincing reasons. The revisionists in the present case cannot be permitted to claim to have a vested right to stall the proceedings in the suit as well as decision on the application under Order 40, Rule 1, C.P.C. before the trial Court. If the revisionists are permitted to do so by filing the present revision for delay in disposal of the suit and application under Order 40, Rule 1, C.P.C. it would amount travesty of justice. Delay in dispensation of justice amounts denial of justice. The order impugned is eminently just and proper and does not require indulgence under amended Section 115, C.P.C. For the reasons stated above, I am not satisfied with the argument of learned counsel for the revisionists that if the order impugned is allowed to stand it would occasion either failure of justice or irreparable injury to the revisionists.
15. There is yet an another reasons to dismiss the revision petition at admission stage in limine in as much it is well to remember that Order 19, Rule 1, C.P.C. is a sort of exception to Order 18, Rule 4, C.P.C. according to which the evidence of the witnesses attendance shall be taken orally in viva voce form in Open Court in the presence and under the personal direction and superintendence of the Judge.
16. It is pertinent to mention that in Order 18, Rule 4, C.P.C. the High Court of Judicature for Rajasthan at Jodhpur has inserted the following words at the commencement of Rule viz. --
"Subject to the provisions of Rule 1 of Order XVI."
17. The order for attendance of deponent of the affidavit for cross-examination, is absolute discretion of the Courts-below. It is true that absolute discretion means not arbitrary but judicious discretion having justice oriented approach in summoning the deponent of an affidavit for cross-examination. Order for attendance of the deponent for cross-examination would not be ordinarily be made unless the Court is satisfied and convinced that application for summoning the deponent for cross-examination is bona fide and summoning of the deponent for cross-examination is necessary in the interest of justice. Unless both the conditions co-exist the subordinate Courts have no jurisdiction to summon a deponent for cross-examination under Order 19, Rule 2, C.P.C.
18. I have examined the order impugned in revision refusing summoning of five deponents for cross-examination under Order 19, Rule 2, C.P.C. on the anvil of two conditions mentioned above and found that learned trial Court has given cogent and convincing reasons to the effect that out of two conditions, none of the conditions are fulfilled for passing an order for summoning of the five deponents for cross-examination. I am at one with the finding recorded by the trial Court in the present case, therefore, the revision petition is liable to be dismissed on this ground alone without further ceremony at admission stage.
19. In view of the aforesaid facts and circumstances, it is not necessary to undertake to discuss thread bare other arguments raised by the learned counsel for the parties nor it is necessary to go into the details of the decisions cited by the learned counsel for the parties before me, inasmuch as, in my opinion, the instant revision petition is not maintainable under Section 115, C.P.C.
As a result of the aforesaid discussion, the instant revision lacks merit and is hereby dismissed at admission stage in limine with a direction to the trial Court to decide the application under Order 40, Rule 1, C.P.C. on the basis of material available on record within one month from today. It is further directed that arbitration proceedings in between the parties must be finally decided on priority basis preferably within four months from today.
Under the peculiar facts and circumstances of the case, since the instant revision is being dismissed at admission stage in limine, therefore both the parties are directed to bear their own costs.