Rajasthan High Court - Jodhpur
Shyam Kumar vs Surendra Kumar Goyal & Anr on 2 March, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.Civil Writ Petition No. 2653 / 2017 Shyam Kumar S/o Shri Kheta Ram Ji Goyal,, Aged About 70 Years, By Caste Kumawat, Resident of PWD Area, Near Sophia School, Jodhpur (Raj.)
----Petitioner Versus
1. Surendra Kumar Goyal S/o Shri Kheta Ram Ji Goyal,, Aged About 68 Years
2. Kalu Ram S/o Shri Kheta Ram Ji Goyal,, Aged About 73 Years, All by Caste Kumawat, Resident of PWD Area, Near Sophia School, Jodhpur (Raj.)
----Respondents _____________________________________________________ For Petitioner(s) : Mr Arpit Bhoot _____________________________________________________ JUSTICE DINESH MEHTA Judgment 02/03/2017 Heard learned counsel for the petitioner, in a writ petition impugning an order dated 25 th January 2017 passed by learned Additional District Judge No.5, Jodhpur Metropolitan rejecting the application dated 11.03.2016, filed by the petitioner-defendant No.2 under section 151 of CPC.
Mr Arpit Bhoot, learned counsel for the petitioner, narrating the facts stated that the plaintiff filed an application (Annx.2) under Order XXI rule 35 read with sections 51 & 54 of the Code of Civil Procedure, 1908 for passing a final decree in terms of the preliminary decree dated 17.10.2012.
He contended that the provisions of Order XXI rule 35 of CPC is not relevant and germane for the purpose, for which the (2 of 3) [CW-2653/2017] application in question had been filed by the respondent and similarly, sections 51 and 54 of the Code of Civil Procedure apply to property relating to Government and hence, the petitioner- defendant No.2 filed a specific application under section 151 of CPC, seeking rejection of the application under consideration filed by the plaintiff-respondent.
Challenging the order impugned dated 25.01.2017, it was contended that the learned court below, though found that there is wrong mentioning of the provision, yet has proceeded with the matter and that the civil court is governed by the procedure provided under the Code of Civil Procedure, 1908 and can not entertain an application, which has been filed invoking wrong provision of law.
This Court has considered arguments of Mr Bhoot and has given its thoughtful consideration over the matter.
It is settled proposition of law that the court looks at the substance of the matter and not on the form. It is technically true that the caption of the application and the provisions mentioned therein, particularly Order XXI rule 35 of CPC, is not relevant and germane to the purpose, for which the application was filed and it ought to have been under Order XX rule 18 of CPC.
The learned trial court has rightly observed that the application should be decided on the substance and purpose for which it has been filed. It is a trite position of law that substance should prevail over the form. A bare look at the application filed by the respondents shows that the purpose of filing the application was to get a final decree issued, pursuant to the preliminary (3 of 3) [CW-2653/2017] decree, as such rejecting such application on technicalities does not serve the cause of justice. The court should apply objective and justice oriented approach and that is precisely what has been done by the court below.
The court has inherent and infinite power to consider an application even if filed mentioning wrong provision. No party can be permitted to sidetrack the main issue and protract the proceedings by going into elementary procedural law and pressing hyper-technical issues. The court's power, if does exist, cannot be sent in hybernation, if a litigant refers to a wrong provision.
It is well settled position of law that quoting wrong provision of law in the application can not be a bar by itself in granting the remedy (AIR 1922 Mad 446).
Be that as it may, since the learned court below has decided to proceed with the matter considering the subject application for passing of a final decree, pursuant to preliminary decree dated 17.10.2012, this Court does not see any reason to interfere in the matter, just for the sake of academic purpose, to decide a point aptly and succinctly raised by Mr Arpit Bhoot.
The writ petition is, therefore, dismissed. Needless to observe that the trial court will be governed by the provisions provided for the preparation of final decree as contained in Order XX rule 18 of Code of Civil Procedure, 1908.
(DINESH MEHTA)J.