1955 Supreme(Raj) 376

Rajasthan High Court
Modi, J.
Laxmichand - Appellant
Versus
Harakchand - Respondents
Civil Revision No. 38 of 1954
Decided On : December 21, 1955

Headnote:(a) Civil P.C., sec. 105—Affecting decision of the case—Order merely opening stage for trial of case, not order affecting merits of case.(b) Civil P. C., sec. 115—Question of jurisdiction —Courts order challenged as being without jurisdiction(c) Civil P. C, O. 41, R. 23—Remand of case conditional as to payment of costs and presenting amended plaint both within certain time—Trial Court cannot very such order.

       In an appeal to this Court a Division Bench, by its judgment dated the 2nd Sept., 1953, allowed the appeal and remanded the case for retrial with the direction that the trial court will give notice to the parties on receipt of this record from this court, and the plaintiff will be allowed to file an amended plaint within one month of the receipt of the notice by him, provided the plaintiff pays the defendant Rs. 200/- as costs for the amendment within that period of one month...If costs are not paid and the amended plaint is not filed within the time allowed, the suit will stand dismissed. After remanded the record was placed before the trial court on the 21/09/1953. On that day the Senior Civil Judge passed an order by which it registered the suit and directed that counsel for the parties be informed of the next date of hearing which was fixed as the 4/11/1953. Neither the parties nor their counsel were present on the date. However, counsel for the defendant and counsel for the plaintiff accepted the notice on the 12th and 13/10/1953, respectively, and in lieu thereof, put their signatures on the order sheet. On the 4/11/1953, both counsel were present. A prayer was made on behalf of counsel for the plaintiff for time to deposit the sum of Rs. 200/- and to put in the amended plaint. The court gave a direction that counsel for the plaintiff should comply with the order of the High Court dated the 2/09/1953 and the case was fixed for the 19/11/1953. In the meantime, on the 9/11/1953, Mr. Singhi,counsel for the plaintiff deposited the some of Rs.200/- by an application in which he also prayed that an order be given for allowing the necessary amendments in the plaint. The amended plaint was, however, put in on the 19/11/1953. An objection was at once raised on behalf of the defendant that the amended plaint had been presented beyond the time fixed by the High Court in its order dated the 2/09/1953. This objection was rejected by the Senior Civil Judge by his order dated the 2/01/1954, against which the present revision has been brought. (Para 2)

       Held that the order passed by the Senior Civil Judge to the effect that the amended plaint was presented in the trial court within the time specified by the High Court in its order and therefore the trial should proceed is a decision which cannot be said to have any bearing on the merits of the case. In fact at the date this order was passed, the suit had already been dismissed and had been allowed by the High Court to be revived provided certain conditions were fulfilled, and it was only on the fulfilment of those conditions that the suit could be revived and not otherwise, and it could be upon such revival only that a trial as to the merits of the case would begin but before such inquiry it is too much to say that the decision which the trial Judge gave on the matter which arose before him was a decision affecting the merits of the case The order of the trial Judge only opened the stage for a trial on the merits and was not some thing which was connected with the merits by itself. In this view of the matter, it necessarily follows that this order is not capable of being challenged in any appeal from the eventual decree which may be passed against the present petitioner within the meaning of sec. 105. (Para 4)

       What the appellant is attacking here is the very authority or jurisdiction of the trial court to have admitted the amended plaint and allowed the proceeding to commence onwards and, therefore, it cannot be said that what is challenged here is merely an erroneous order not involving the question as to jurisdiction. (Para 5)

       On merits, the only notice which this Court wanted to be given to the parties was that the record has reached the trial court. On the 13/10/1953, when counsel for the plaintiff signed the order-sheet, he got notice that the record had been received from the High Court, and no further notice was required to be given or should have been given by the trial Judge in connection with the compliance of the High Courts order of remand permitting the amendment. The High Court had ordered that the plaintiff must do both things within one month of the notice of the receipt of the record by the plaintiff. On the 19th of November, 1953, when the plaintiff put in the amended plaint, his suit already stood dismissed by virtue of the express language of the order of the High Court and it was beyond the power of the learned Senior Civil Judge to revive it any further. (Para 7)