S.K. MAL LODHA, J —This is a plaintiffs revision under section 115, C.P.C directed against the order dated September 27, 1980 of the learned Civil Judge,, Pali by which he dismissed the application under O. XIV, r. 5 C.P.C. on September 6, 1980 which was filed on behalf of the guardian-ad-litem of the minor defendants No. 2,3,7 and 8 for framing of the additional issues.

2. The defendant-non-petitioners instituted a suit for redemption of mortgage and rendition of accounts on January 8, 1973. The plaint is dated October 11, 1972. The suit was resisted by defendants No 1 and 4 on various grounds by filing a written statement dated January 10. 1974. A rejoinder was filed by the plaintiffs on February 28, 1974. On behalf of minor defendants No. 2,3,7 and 8. guardian-ad-litem tiled the written statement on July 15, 1973. The learned Civil Judge framed as many as 18 issues inclusive of the relief. Issue No. 13 relating to the court fee was decided in favour of the defendants and the plaintiffs were directed to make up the deficit court fee and amend the plaint. On January 5, 1979, defendant No. 2 Harish moved an application under O. XXXII, rr. 3 and 4 read with Sec. 151, C.P.C. praying that as he has become major one month before the date of the application, he may be permitted to file the written statement and his guardian-ad-litem may be removed and in the light of the written statement that may be filed by him, issues may be struck and evidence may be recorded. On February 3, 1980, the learned Civil Judge directed that defendant No. 2 may participate in the proceedings and if he likes, he may also examine himself as witness and produce evidence. SB. Civil Revision No. 101/80 : Harish vs. Somnath was filed against that order. The revision was dismissed on May 7, 1980. After dismissal of the revision, on September 6, 1980, an application was moved by defendant No. 2 Harish under O. XIV, r. 5, C.P.C. praying that in view of the written statement that was filed on behalf of the minor defendants by the guardian-ad-litem, necessary additional issues arising out of that were not framed and, therefore, issues No. 1 to 6 stated in the application may be framed. This application was opposed on behalf of the plaintiffs by filing a reply on September 20, 1980. The learned Civil Judge, by his order dated September 27, 1980, dismissed the application. Defendant No. 2 has come to this Court in revision as aforesaid.

3. Learned counsel for the parties stated that the revision may be disposed of at the admission stage. This Court, therefore, ordered that the revision will be taken up for hearing after service on non-petitioners No. 4 to 10. Record has been received.

4. I have heard learned counsel for the parties.

5. A preliminary objection was raised by Mr. Calla that revision against the order dated September 27, 1980 of the Civil Judge is not maintainable as it is an order dismissing the application under O. XIV, r 5, C.P.C. and the dismissal as such has not determined the rights and obligations of any of the parties. This preliminary objection is opposed by Mr. B.M. Singhvi. He contends that when the application under O. XIV, r. 5, C.P.C. was dismissed, it certainly amounts to adjudication of the rights and obligations of the parties in controversy and that, in any case, in view of Explanation added to Sec. 115, C.P.C. by the C.P.C. Amendment Act (No. 104 of 1976) the order dismissing an application under O. XIV r. 5, C.P.C. comes within the ambit of the expression case which has been decided. On the basis of M/s. Sadhu Ram vs. Ghanshyam Dass (1), Chotanagpur Banking Assn. vs. Rajib Nath (2) Khamana vs. Surjan (3) and Bishan Singh vs. Murti Shivji (4) Mr. Singhvi contended that the order dismissing the application under O. XIV, r 5, C.P.C. whereby refusing to frame additional issues is a case decided, and therefore, the revision against such an order is competent.

6. I proceed to examine the preliminary objection first.

7. Section 115, C.P.C. read

Click Here to Read the rest of this document