Rajasthan High Court - Jodhpur
Kishan Chand Bothra vs Addl.Distt And Session Judge No1 on 1 July, 2008
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
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(1) S.B. CIVIL REVISION PETITION NO. 240/2007.
(Kishan Chand Bothra & Anr. Vs. Lal Chand Bothra & Ors.)
.......
(2) S.B. CIVIL WRIT PETITION NO. 7474/2007.
(Kishan Chand Bothra & Anr. Vs. A.D.J. No.1, Bikaner & Ors.)
.....
(3) S.B. CIVIL WRIT PETITION NO. 7475/2007.
(Kishan Chand Bothra & Anr. Vs. A.D.J. No.1, Bikaner & Ors.)
....
Date of Order :: 1st July 2008.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. S.D. Vyas, for the petitioners (defendants Nos. 2 and 5).
Mr. L.K. Purohit, for the non-petitioner No.1 in CR No.
240.2007 and respondent No.2 in CWP Nos. 7474/2007 and
7475/2007 (plaintiff)
...
BY THE COURT:
These three matters, one civil revision petition under Section 115 of the Code of Civil Procedure (CR No. 240/2007), and two writ petitions under Articles 226/227 of the Constitution of India (CWP Nos. 7474/2007 and 7475/2007) having been filed against similar nature orders dated 26.04.2007 as passed by the Additional District Judge No.1, Bikaner respectively in Civil Suits Nos. 44/2005, 42/2005 and 45/2005; and involving the same parties and similar nature issues, have been heard together and are taken up for disposal by this common order.
By the impugned similar nature orders dated
26.04.2007, the learned Trial Court has allowed the
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applications moved in the respective civil suits by the plaintiff Lal Chand under Order I Rule 10 read with Order VI Rule 17 of the Code of Civil Procedure (CPC) to alter the name of the defendant No.1 firm from "M/s Bikaner Woolen Mills International" to "M/s B.W.M. International" while accepting the submissions of the plaintiff that earlier stated description of the defendant-firm in the plaint had been a bona fide clerical error. The petitioners are the defendants Nos. 2 and 5 in the said civil suits.
The background facts and relevant aspects of the matter are that the plaintiff Lal Chand Bothra has filed the aforesaid three civil suits for money recovery; and from the copy of the plaint relating to Civil Suit No. 44/2005, as placed on the record of CR No. 240/2007, it appears that the plaintiff has claimed money decree against the defendants with the submissions that his late mother had deposited certain amount with the defendant firm that has been duly shown in its books of accounts and balance confirmation had been issued on behalf of the defendant firm upto 31.03.2003 but not thereafter, despite demands. The plaintiff has alleged himself being entitled to one-third of the amount deposited by his late mother in the defendant firm.
The plaintiff has stated the cause title of the suit as under:-
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"ल लचन ब थर पत स . श त जमल ब थर ज तत ब थर उम 68 र
त स इण स यल एर य र ब ज र ब क $र ।
ब म
1. म&. ब क $र 'ल तमलस इन)र $श ल, पल,) .- 1-ब , 1-स , 1-
इण स यल एर य र ब ज र ब क $र । जररय$ पबन0क/ भ ग र
म&. ब क $र 'ल तमलस इन)र $श ल ।
प0 क य लय 4 म र ब हर घ ) स ) कलकत -7
2.ककस चन ब थर पत स र तमल ब थर } भ ग र तम म
3.जयचन ल ल ब थर पत श ककस चन ब थर } म&. ब क $र
4.र जकम र ब थर पत श ककस चन ब थर } ल तमलस
5.श$य -श ब थर पत श जयचन ल ल ब थर } इण)र $श ल
6.स र लत ब थर w/o श ककस चन ब थर }त स गर
ए-144 स ल
ग-ज ब क $र"
The petitioners Kishan Chand Bothra and Shreyansh Bothra, defendants Nos. 2 and 5, have filed their written statement in the respective suits and, from the copy of the written statement in relation to Civil Suit No. 44/2005, it is made out that they have denied existence of defendant No.1 firm and have specifically stated that there was no such partnership firm "M/s Bikaner Woolen Mills International" and they are not the partners of any such alleged firm. While taking other objections regarding competence of the claim of the plaintiff, the defendants-petitioners have stated their objections regarding the defendant No.1 firm in the following terms :-
"16. यह कक $ गलत ए - असतय तथय: पर आ0 ररत पसतत ककय ह& ।
म&सस ब क $र 'ल तमलस इन)र $श ल म क< क ई भ ग र फम अससतत म@ ह - ह& । ऐस फम पल,) मबर 1-स , 1-स , 1- इण स यल एररय र ब ज र ब क $र म@ ससथत ह - ह& । पतत गर ऐस फम क$ प ) र ह - ह& ।
17. यह कक अ लत ल क समम पतत गर 4 पर भ ग र म&सस ब क $र 'ल तमलस इन)र $श ल त स गर ए-144, स लग-ज ब क $र क$ पत$ पर भ$ज$ गय$ ह& । पतत गर इस तथ कतथत फम क$ प ) र ह - ह $ क$ क रर उ पर गलत समम त म ल कर य@ गय$ ह& । क ' प$तच ग य: स$ बच $ क$ तलए ए - सह ससथतत अ लत ल क$ समक ल $ क$ तलए पतत गर क ऊपर सरत अ स र कथ ह& कक फम म&. ब क $र 'ल तमलस इन)र $श ल म क< त क ई फम अससतत म@ ह& और ह उतर त पतत गर इसक$ भ ग र ह& और ह $ क ककस भ रकम अ यग क$ तलए सजमम$ र ह& ।"
After filing of such written statements on 31.08.2005 by the defendants Nos. 2 and 5 and while the matters were pending for service on other defendants, the plaintiff moved similar nature applications in these suits under Order I Rule 10 read with Order VI Rule 17 CPC with the submissions that "M/s B.W.M. International" and its partners were to be impleaded as parties but for inadvertence and clerical mistake, "M/s Bikaner Woolen Mills International" came to be impleaded as defendant. The plaintiff maintained that only the name of the firm was wrongly scribed and else, the address and particulars were the same. The plaintiff submitted that the matter was only at the stage of service and even the served defendants could file amended written statement; and prayed that in the interest of justice and for effectual determination of the real questions in controversy, the name "M/s B.W.M. International" may be permitted to be substituted wherever it was typed as "M/s Bikaner Woolen Mills International".
The petitioners put the said applications to contention 5 and submitted that the plaintiff has filed the suit against M/s Bikaner Woolen Mills International and has stated the cause of action against the said firm and its partners. The petitioners submitted that the defendant No.1 was a distinct and specific firm and, in its place, the plaintiff was not entitled to state the name "M/s B.W.M. International" that itself was a distinct registered partnership firm; that by way of such substitution, the plaintiff's attempt was to bring the suit within limitation that has gone beyond limitation against M/s B.W.M. International; and that prayer as made by the plaintiff would lead to a fundamental change in the parties to the suit.
The learned Trial Court has proceeded to allow the applications as moved by the plaintiff by its impugned orders dated 26.04.2007 with the observations in each case that the suit has been filed against a partnership firm situated at Plot No. 1-B, 1-C, 1-D, Industrial Area, Rani Bazar, Bikaner and having its head office at 4, Meer Bohar Ghat Street, Kolkata-7. After reading the concerning plaint as a whole, the learned Trial Court has been of opinion that the intention of the plaintiff was clear, and it were a clerical error that the name "M/s Bikaner Woolen Mills International" came to be stated in place of "M/s B.W.M. International". The learned Trial Court has further observed that it was not pointed out if the defendants Nos. 2 to 6 were not the partners of M/s B.W.M. International; and has held that the suit was intended to be filed against 6 B.W.M. International and cannot be said to have gone beyond limitation. The learned Trial Court has yet further observed that as far as possible, the matters are required to be decided on merits and the plaintiff could not be thrown out merely for having stated a different name; but has found it appropriate to allow costs to the defendants for inconvenience caused by the mistake of the plaintiff. The learned Trial Court has, therefore, allowed the applications in the respective suits on costs of Rs. 1,000/- each.
It may be pointed out that the petitioners chose to file in the first place, on 11.07.2007, a revision petition under Section 115 CPC, i.e., CR No. 240/2007, challenging the order so passed in relation to Civil Suit No. 44/2005 taking the grounds that by way of amendment an accrued legal right cannot be taken away; that by the impugned order virtually a new suit has been ordered to be filed beyond limitation; that it has not been the case of clerical mistake because the plaintiff himself had been a partner of the firm M/s B.W.M. International; that the application as moved by the plaintiff was not supported by affidavit; that there could be the same address of many firms and merely for identity of address, M/s Bikaner Woolen Mills International would not become M/s B.W.M. International. The petitioners have further stated that if the revision petition is allowed, the suit would be disposed of finally for the plaintiff having admitted there being no cause of action against M/s 7 Bikaner Woolen Mills International; and, according to the petitioners, because the suit would be dismissed as such, the revision petition is maintainable. In this revision petition, notices for final disposal were issued on 30.10.2007, and further proceedings in Civil Suit No. 44/2005 were ordered to remain stayed.
The petitioners, thereafter, proceeded to file the aforesaid two writ petitions on 13.11.2007 against the similar nature orders of the even date, i.e., 26.04.2007, in relation to Civil Suits Nos. 42/2005 and 45/2005 respectively. While stating the same facts as noticed above, the petitioners have stated the grounds that as per Order I Rule 10 CPC, the Limitation Act is applicable in the matter of substitution or addition of parties; and for the purpose of Section 21 of Limitation Act, 1963 it is not sufficient to add the party or allow the application but thereafter it should further be specifically ordered as to whether this substitution or addition relates back to the date of filing of the suit and else it would operate from the date of order. According to the petitioners, in this case no such further order having been passed, the suit has gone out of limitation and is required to be dismissed. The decision of the Hon'ble Supreme Court in the case of Ramalingam Chattiyar Vs. P.K. Pattabiraman : AIR 2001 SC 1185 has been referred in this regard. Further, the petitioners have referred to the decision of the Hon'ble Supreme Court in the 8 case of Radhika Devi Vs. Bajrangi Singh : AIR 1996 SC 2358, to submit that the amendment cannot be allowed so as to take away the legal right of the defendants that has accrued because of bar of limitation. The petitioners have contended that the order impugned has virtually permitted a new suit to be filed beyond limitation because the limitation expired on 30.03.2006 and the amendment was allowed only on 26.05.2007. While again stating the grounds that the case is not of a clerical mistake as the plaintiff himself has been the partner of M/s B.W.M. International; that the plaintiff has not filed the requisite affidavit; and that merely for identity of address, Bikaner Woolen Mills International would not become B.W.M. International, the petitioners have proceeded to state in ground (iii) in these two writ petitions the same ground as has been stated in the revision petition that if the revision petition would be allowed by making an order in favour of the petitioners, the suit would be disposed of finally because the plaintiff has admitted there being no cause of action against M/s Bikaner Woolen Mills International and hence, according to the petitioners, the revision petition is maintainable. In these two writ petitions, notices for final disposal were issued on 15.11.2007 and further proceedings in the respective civil suits were ordered to be stayed.
Thereafter, on 29.01.2008, when CWP No. 7474/2007 was placed for orders with the report that the notices of the 9 respondents Nos. 2 and 3 had been received unserved, this Court noticed that the respondent No.3 was arrayed in the writ petition as "M/s. Bikaner Woolen Mills International, Plot No. 1- B, 1-C, 1-D, Industrial Area, Rani Bazar, Bikaner through its Manager/Partner" and found it doubtful, looking to the subject matter of the writ petition, if the named respondent No.3 would at all be served? The process server's reports on the notices sent to the said respondent No.3 were to the effect that the named firm was stated to have been closed but nobody having verified the facts. In the circumstances of the case and looking to the subject matter of the petition, service on the said respondent No.3 was ordered to be dispensing with; and following the said order dated 29.01.2008 in CWP No. 7474/2007, service on the same named respondent/non- petitioner was ordered to be dispensed with in CWP No. 7475/2007 on 28.02.2008 and in CR No. 240/2007 on 04.03.2008, of course while keeping open the objection of learned counsel for the plaintiff-non-petitioner No.1 on the competence of the revision petition.
All the three matters were thereafter taken up for consideration and heard together on 15.04.2008. It may be pointed out that at the commencement of the submissions, in relation to S.B. Civil Revision Petition No. 240/2007, learned counsel for the petitioners sought permission to withdraw the same with liberty for the petitioners to file a writ petition; 10 however, learned counsel for the parties were heard on merits in CWP Nos. 7474/2007 and 7475/2007 and order was reserved in all the three cases.
Learned counsel for the petitioners contended that it were not a case of any clerical error or mistake because the plaintiff himself had been the partner of M/s B.W.M. International and was aware about the name, particulars, and description of the firm concerned. Learned counsel submitted that when the plaintiff knowingly and specifically impleaded a particular firm as defendant, alteration in the name of the firm to a different name clearly amounts to substitution of a new defendant in place of the impleaded defendant; and being a case of substitution of the defendant firm as stated in the plaint with another firm as stated in the application, such amendment or substitution of parties could not have been allowed for the suit against the firm sought to be substituted having already gone beyond limitation. Learned counsel emphasized, with reference to the decision of the Hon'ble Supreme Court in Ramalingam (supra) that mere addition or substitution as defendant is not sufficient and unless a separate order is made that the impleadment of newly added or substituted party shall take effect from any previous date, the period of limitation in relation to the newly added or substituted party shall run from the date of impleadment in the suit; and for no such separate order having been made in the present case, 11 the suit against B.W.M. International shall be deemed to have been filed from the date of order and would remain hopelessly barred by limitation. Learned counsel for the plaintiff, respondent No.2 in the writ petitions, opposed with the submissions that soon after filing of the written statements by the petitioners on 31.08.2005, the plaintiff proceeded to move the present applications and clearly pointed out that it were a case of misdescription of party where the firm name "B.W.M. International" was stated as "Bikaner Woolen Mills International" while writing in full the letters in abbreviation. Learned counsel submitted that it had been a case of simple bona fide mistake with misdescription of party and else the balance confirmations relied upon by the plaintiff are from the firm B.W.M. International; the address of the firm B.W.M. International is the same as stated in the plaint in relation to defendant No.1; and the partners of the firm are also the same as already joined in the suit. Learned counsel referred to the decision of the Hon'ble Supreme Court in the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply: AIR 1969 SC 1267 and submitted that in the case of mere misdescription of a party, question of limitation does not arise; and on amendment, the plaint would be deemed to have been presented against the real defendant on the original date of institution.
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Learned counsel for the petitioners rejoined with the submissions that as per the operation of the provisions of Order I Rule 10 CPC read with the provisions of Limitation Act, 1963, the proceedings as against the person substituted or added as defendant shall be deemed to have been instituted when he is so made a party and for the benefit of proviso to Section 21 of the Limitation Act, specific order was requisite and the same having not been passed, the suit against the substituted defendant remains barred by limitation.
Having given a thoughtful consideration to the rival submissions and having examined the records of the cases with reference to the law applicable, this Court is clearly of opinion that these petitions remain bereft of substance and deserve to be dismissed with costs.
A comprehensive examination of the plaint averments makes it clear that the plaintiff intended to file the suit against the firm that stands in the capacity of a debtor in relation to the amount deposited by his mother; and the plaintiff claims his right to recover one-third of such deposit. The plaintiff has not only arrayed the debtor firm as defendant No.1 but has further sued the defendants Nos. 2 to 6 in their capacity as partners of the debtor firm. The name of the firm, arrayed as defendant No. 1 has of course been stated as "M/s Bikaner Woolen Mills International" but, according to the plaintiff, it were a wrong 13 description of the firm name "M/s B. W. M. International". The clinching aspect of the matter is that the defendants Nos. 2 to 6 are stated to be the partners of the firm M/s B.W.M. International; and this fact has not been denied by the petitioners, defendants Nos. 2 and 5, in the entire length of their submissions. Noteworthy further it is that the petitioners have taken a categoric stand in the written statement that there was no such firm in the name of "Bikaner Woolen Mills International" as sued by the plaintiff; but have attempted to improve upon, rather alter, such assertion while stating the reply to the application moved by the plaintiff and suggested that " M/s Bikaner Woolen Mills International" and "M/s B.W.M. International" were distinct and separate firms. In any event, the case remains that of misdescription of a party where it appears that the firm name "B.W.M. International" came to be stated as "Bikaner Woolen Mills International" while taking 'B.W.M.' to be the abbreviation of "Bikaner Woolen Mills". Another significant feature of the case is that the plaintiff maintains that the address stated in the particulars of the defendant No.1 remains the same; and this fact has also not been denied by the petitioners.
The submission on behalf of the petitioners about it being not a case of clerical error or bona fide mistake cannot be accepted. Even when it is assumed that the plaintiff himself had been a partner of the firm M/s B.W.M. International, the 14 error in question does not looses its character of a bonafide mistake in describing a firm name. In any case, when the partners of the firm sought to sued against have been joined as parties to the suit, the address remains the same, and even the firm name sought to be substituted is not totally away and different from the existing name, in the totality of circumstances, the description of the firm name as contained in the plaint could only have been regarded as clerical error and the learned Trial Court has not committed any illegality in permitting its correction.
In this fact situation, the case being clearly of misdescription of the party, the contentions as advanced on behalf of the petitioners with reference to the operation of proviso to sub-section (1) of Section 21 of the Limitation Act, 1963 remain fundamentally misplaced. The provisions of Section 21 of the Limitation Act do not apply where the person has been sued in wrong name or capacity; or when a plaintiff gives a wrong description of a person he intends to sue and seeks amendment to give a correct description of such a defendant. In such a situation, the case is not of substitution or addition of a party within the meaning of Section 21 of the Act of 1963 but is only of correction of description of the party already joined that could be carried out any time; and the suit nevertheless remains instituted from the date of presentation of the plaint. The Hon'ble Supreme Court has been pleased to 15 hold in no uncertain terms in the case of Jai Jai Ram Manohar Lal (supra),-
"Since the name in which the action was instituted w as merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted."
The present one being clearly a case of correction of misdescription, the decision of the Hon'ble Supreme Court in Ramalingam's case (supra) has no application. In Ramalingam, the State of Tamil Nadu, a necessary party in the suit for cancellation of auction sale was not joined at all; and application was later on moved by the plaintiff to join the said necessary party. The Hon'ble Supreme Court found that in view of Section 21 of the Limitation Act, so far the State of Tamil Nadu was concerned, the suit had to be treated as instituted when the application for its impleadment was allowed and by that time the suit had gone beyond limitation. In such a scenario, the Hon'ble Supreme Court pointed out that after substituting or adding a party in the suit, a separate/further order is required that the suit as regards the newly added defendant or plaintiff would be deemed to have been instituted with effect from the date the suit was laid; and merely adding or substituting a plaintiff or defendant is not enough; and in the absence of any order that impleadment 16 shall take effect from the date of institution, the period of limitation in relation to the newly added or substituted parties would run from the date of their impleadment. The matter was being considered by the Hon'ble Supreme Court after the suit was dismissed by the Trial Court but was decreed by the First Appellate Court and such a decree was maintained by the High Court; and the Hon'ble Supreme Court pointed out from the records that no order was found having been passed by the Trial Court and thus, in the absence of such an order, the suit filed by the respondent was held barred by limitation with reference to the provisions of Section 59 of Tamil Nadu Revenue Recovery Act. In the present case, as noticed, the provisions of Section 21 (1) do not apply for it being not a case of addition or substitution of a party but only of correction of the description of the defendant No.1 firm.
There arise no question of defeating of any accrued legal rights of the defendants. There is no such right in the defendants-petitioners that could be deemed to have accrued in the present case merely for misdescription of the firm name. The decision in Radhika Devi (supra) has no co-relation to the present case. Therein, the contesting defendants in the partition suit filed their written statement on 15.06.1988 pleading about registered gift deed in their favour executed on 28.07.1978 but the plaintiff did not take timely steps to put a challenge to the gift deed and filed an application for 17 amendment seeking declaration against the gift deed only on 11.11.1992. The Trial Court allowed the amendment but the High Court reversed the order passed by the Trial Court. Upholding the order passed by the High Court, the Hon'ble Supreme Court pointed out that gift deed executed and registered as early as 28.07.1978 was a notice to everyone and even after filing of the written statement, for 3 years no steps were taken to seek amendment. In such a fact situation, the Hon'ble Court held that accrued right in favour of the respondents would be defeated by the amendment. The plaintiff herein has not made any new claim nor even added any allegation in the plaint. The theory of accrued legal right does not fit in the present kind of correction in the description of a party.
So far the argument regarding want of affidavit is concerned, suffice is to say that such contention relates more to the form than substance; and is of no avail. The core of the issue that the plaintiff wanted to sue the firm "M/s B.W.M. International" and proceeded to state the firm name while giving meaning to the letters in abbreviation being clear on the face of the record, the application could not have been thrown out for so-called want of affidavit in support. No specific averment on the error is requisite when the same is discernible from the material available on record. The Hon'ble Apex Court, in the said case of Jai Jai Ram Manohar Lal has pointed out,- 18
"...In our view, there is no rule that unless in an appli- cation for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such nar- row or technical limitations.
As a result of the discussion aforesaid, these petitions are required to be dismissed but the process adopted by the petitioners in invoking revisional and writ jurisdictions of this Court per force invites further comments. With amendment to Section 115 of the Code of Civil Procedure by the Amendment Act of 1999, the scope of revisional jurisdiction came to be curtailed and in the case of Shiv Shakti Cooperative Housing Society, Nagpur Vs. Swaraj Developers & Ors. : 2003 (6) SCC 659 the Hon'ble Supreme Court held incompetent a revision petition against an interlocutory order. However, thereafter, the Hon'ble Supreme Court explained the principles in Surya Dev Rai Vs. Ram Chander Rai & Ors.: 2003 (6) SCC 675 that amendment of Section 115 CPC does not take away the certiorari and supervisory jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India; and in a given case of grave injustice, the matter could be considered in such jurisdiction. Further in the case of Salem Advocate Bar Association, T.N. Vs. Union of India: (2005) 6 SCC 344, the Hon'ble Supreme Court, while affirming the ratio of Surya Dev Rai in relation to Section 115 CPC said that the power of the 19 High Court under Articles 226 and 227 of the Constitution of India is always in addition to the revisional jurisdiction conferred on it and curtailment of revisional jurisdiction under section 115 CPC does not take away the constitutional jurisdiction of the High Court; and pointed out that the power exists, untrammeled by the amendment in section 115 and is available to be exercised subject to the well settled rules of self-discipline and practice.
With such development of law, the orders passed by the civil Courts during the course of a civil litigation are examined in appropriate cases by this Court in writ petitions, usually labeled as the petitions under Article 226 & 227 of the Constitution of India; and in practice, such jurisdiction of this Court is invoked as if a substitute of revisional jurisdiction. However, the fact remains that the jurisdiction under Articles 226 & 227 of the Constitution of India is an extraordinary jurisdiction and is, sparingly, exercised in the kind of cases of manifest jurisdictional error that might lead to substantial failure of justice; and within the parameters defined in Surya Dev Rai(supra).
Profitable it shall be to recall that before amendment to the Code of Civil Procedure, even when a revision petition in relation to an interlocutory orders was maintained on the grounds as spelt out in Section 115(1) CPC and when a case was made out of the impugned order resulting in failure of 20 justice or irreparable injury, as per the requirements of proviso
(b) to Section 115(1) as inserted by the Amendment Act of 1976, the limitation for filing a revision petition under Section 115 CPC had always been 90 days as per Article 131 of the Limitation Act, 1963. With the change in the law of procedure as noticed hereinabove, when an interlocutory order passed by a civil Court during the course of a civil litigation is now attempted to be challenged while invoking the writ jurisdiction of this Court under Articles 226 and/or 227 of the Constitution of India, by the very nature of proceedings, a litigant cannot be acceded the latitude to take up such challenge at any time at his sweet will.
Even when no limitation as such is provided for filing a petition for writ yet, for the purpose of the petitions of the present nature, 90 days period as provided for the revision petitions under the Limitation Act could, broadly, be considered to be a reasonable period of time for taking up such challenge, subject to variance on either side of that period in the circumstances of a particular matter. However, and in any case, it cannot be assumed that with amendment to the Code of Civil Procedure, particularly to Section 115; and with the decisions of the Hon'ble Supreme Court in Surya Dev Rai and Salem Advocate, a litigant has been acceded a freedom to invoke the writ jurisdiction of this Court at any time, thereby putting into uncertainty the very progress of a civil 21 litigation before the subordinate Court. This Court is of opinion that the writ petitions so filed against the orders passed by the civil Courts ought to conform to the reasonable time limit requirement and else are liable to be rejected on this count alone unless sufficient cause is shown for delay.
It is noticed that in the present matters, the petitioners in the first place filed a revision petition against the order dated 26.04.2007 as passed in Civil Suit No.44/2005, of course within limitation, but did not put any challenge to the other two orders of the even date for long despite having obtained the certified copies of the three orders more or less simultaneously, a few days from the date of the order; and, only after notices were issued in the revision petition on 30.10.2007 that the petitioners proceeded to file the writ petitions in other two matters. Noticeable it is, as pointed hereinbefore, that the writ petitions contain even the ground that is relevant for the revision petition.
It appears that the petitioners proceeded in the first place on the assumption that the matters were to be taken up in revision petition but limitation therefor having expired chose to file the writ petitions in the other two matters later. Other way round, if it be assumed that the revision petition was initially filed under some mistaken impression; and later the petitioners became aware that only a writ petition would be competent in challenge to the order in question, the petitioners 22 did not take appropriate steps in relation to the revision petition; and continued with the same, simultaneously and parallel to the writ petitions.
The conduct of the petitioners cannot be said to be forthright so far invoking different jurisdictions of this Court in similar matters is concerned; and in the circumstances of this case, the writ petitions filed more than six months after passing of the order dated 26.04.2007 could only be said to be belated and deserve to be dismissed on this count alone.
Moreover, the jurisdiction under Articles 226/227 being exercised by this Court fundamentally on the principles of equity, justice, and good conscience, is not meant to provide a litigant a hunting ground to find faults in every proceeding in the civil Court and to question the same by way of a writ petition so as to somehow avoid decision of the matter on merits and to put spokes in the progress of the litigation. As already noticed, even on merits, the petitioners have no case and a simple matter relating to correction of misdescription of the defendant No.1 firm has been sought to be questioned with hyper-technical suggestions. These writ petitions deserve to be dismissed with costs.
So far the revision petition is concerned, the same remains wholly incompetent for the law laid down by the Hon'ble Supreme in Shiv Shaktri (supra) and is required to be rejected as such. The petitioners do not appear correct in 23 submitting that if an order is made in the revision petition in their favour, the suit is bound to be dismissed. Then, at the time of arguments, the revision petition was sought to be withdrawn with liberty to file a writ petition. The prayer as made for withdrawal with liberty is required to be refused for multiple reasons: First, that the revision petition remains incompetent; second, that the petitioners had not been forthright in their conduct; and third, that no useful purpose would be served by granting any such liberty as the conclusion reached by this Court on the merits of the case covers squarely the grounds sought to be urged in relation to the order impugned in the revision petition too. The prayer as made for withdrawal of this revision petition with liberty to file a writ petition is, therefore, refused; and this revision petition too, for all the reasons aforesaid, deserves to be dismissed with costs.
As a result of the aforesaid, all the three petitions, S.B. Civil Revision Petition No. 240/2007, S.B. Civil Writ Petition No. 7474/2007, and S.B. Civil Writ Petition No.7475/2007, are dismissed with costs quantified at Rs. 3,300/- in each case payable by the defendants-petitioners to the plaintiff.
(DINESH MAHESHWARI), J.
Mohan/