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1967 Supreme(Del) 172
High Court Of Delhi
JAGDISH CHANDER DHAWAN - Appellant
Versus
KARAM CHAND MEHRA - Respondent
Civil 492D of 1960
Decided On : 10/24/1967
ANUP SINGH, H.R.SAWHNEY, S.P.AGARWAL
The Court has jurisdiction to interfere with an order passed by a subordinate court without notice to a party affected by the order, as such an order affects the jurisdiction of the court and does not constitute a mere error in procedure or law.
Headnote:
WITHDRAWAL OF SUIT - ORDER 23 RULE 1(1) CPC - INTERPRETATION - NOTICE TO ALL PARTIES NECESSARY - JURISDICTION OF HIGH COURT UNDER SECTION 115 CPC - EXTENT - ORDER PASSED WITHOUT NOTICE TO PARTY AFFECTED - JURISDICTION AFFECTED - INTERFERENCE JUSTIFIED.
Fact of the Case:
Plaintiff filed a suit for dissolution of partnership and taking of accounts, impleading the first and second respondents as defendants. The second respondent filed a written statement contending that the plaintiff was also liable to render accounts and that on rendition of such accounts, he would be entitled to a decree for Rs. 50,000. The case was adjourned to 22-7-1960 in the presence of all the parties. On 20-7-1960, the plaintiff and the first respondent went to the Court and filed an application for withdrawal of the suit. The Court passed an order dismissing the suit as withdrawn. The second respondent filed a Civil Revision Petition challenging the order.
Finding of the Court:
The Court held that the order dismissing the suit was passed behind the back of the second respondent with a view to defeat his claims. The Court further held that the learned Subordinate Judge erred in passing the order without notice to the second respondent and that the procedure followed was destructive of the basic procedure prescribed by the Code.
Issues: 1. Whether the order dismissing the suit was passed without notice to the second respondent? 2. Whether the learned Subordinate Judge erred in passing the order without notice to the second respondent? 3. Whether the procedure followed was destructive of the basic procedure prescribed by the Code?
Ratio Decidendi: 1. Order 23 Rule 1(1) CPC does not mean that the plaintiff can approach the Court at any time without notice to the other side and can have the suit itself disposed of. 2. Rule 1(3) of Order 23 states that where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Therefore, at least for the purpose of considering the question whether the plaintiff should be called upon to pay any costs to the second defendant or not, the second defendant should have been given notice of this application for withdrawal or the suit and should have been heard. 3. The defects and grave and material irregularities which I have already pointed out in relation to the order passed by the learned Subordinate Judge affect his jurisdiction and, consequently, do not constitute mere error in the procedure or mere error of law.
Final Decision: The Court allowed the Civil Revision Petition No. 492-D of 1960 and set aside the order dated 20-7-1960. The Court dismissed the Civil Revision Petition No. 476-D of 1962.
( 2 ) THE first respondent herein filed a suit for dissolution ot partnership and taking of accounts, impleading the second respondent herein as the first defendant and the petitioner herein as the second defendant. In that suit, the petitioner herein filed a written statement contending inter alia, that the first respondent herein also was liable to render accounts as some of the books of the partnership were in his possession and according to the petitioner, on rendition of such accounts, he would be found entitled to a decree tor Rs. 50. 000, In the prayer clause, the petitioner prayed that the partnership be dissolved, a decree for rendition of accounts be passed, accounts be gone into and a decree be passed for the amounts found due in favour of the partners. Issues were framed and the evidence of the plaintiff was concluded except for his own statement. On 14-6-1960 the Court passed the following order:
"in accordance with the statement of the parties, the case should come up on the 22nd July 1960 for compromise, otherwise the statement of the plaintiff be recorded on that day and the evidence of the defendant should be adduced on the 23rd July I960. "according to the petitioner, he received on 20-7-1960, a letter dated 13-7-1960 from the plaintiff intimating him that in case he was feeling all right, he would attend the Court on the date of hearing, otherwise he would send a medical certificate. Meanwhile, it would appear that on 20-7-1960. the plaintiff and the second respondent herein, who was the first defendant in the suit, went to the Court and the plaintiff filed the following application:
"1. The above-noted suit for rendition of partnership accounts was filed by the plaintiff against the defendants in this Court.
2 The applicant wants to withdraw the suit as he is not entitled to any relief since the suit was filed due to misunderstanding. s It is prayed that the above-noted suit may be dismissed as withdrawn and the parties be left to bear their own costs. The contesting defendant has agreed to bear his own cost of the suit. "the plaintiff also made a statement on solemn affirmation: "the suit may be dismissed as withdrawn. Parties shall bear their own costs. " Similarly, the first defendant also made a statement on solemn affirmation: "i have heard the statement of the plaintiff and the same is correct. I forgo the cost of the suit. " On this, the learned Judge on 20-7-1960 passed the following order:
"in accordance with the statements of the parties, the suit of the plaintiff is dismissed as withdrawn. Parties shall bear their own costs. Announced. "against this order, the petitioner herein, who was the second defendant in the suit, filed a Civil Revision Petition No. 492-D of 1960. The case of the petitioner in this Civil Revision Pettion is that this order dismissing the suit was passed behind his back with a view to defeat his claims or rights put forward by him in his written statement in the suit.
( 3 ) AT the same time, the petitioner herein, also filed an application for a review of this order dated 20-7-1960. A learned Subordinate Judge, 1st Class, Delhi, by an order dated 11-1-1961 reviewed this order and restored the suit to file and directed notice to the parties with regard to other prayers of the second defendant for 1-2-1961. The first defendant preferred an appeal against this order dated 11-1-1961 and the learned Additional District Judge, Delhi, by an order dated 2-5- 1962 allowed the appeal. It is against this order. Civil Revision Petition No. 476-D of 1962 has been preferred. In my opinion, the order passed
