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2016 Supreme(All) 1258
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
KAUSHAL KUMAR AGARWAL AND OTHERS ....Petitioners
Versus
NEW LINE MERCANTILE PVT. LTD. ....Respondent
(Civil Misc. Writ Petition (227) No. 7569 of 2016, decided on 19th October, 2016)
Counsel :
Prabhu Narain Srivastava and Suresh Srivastava for the Petitioners; Ashish Kumar Singh for the Respondent.
Headnote:(A) Code of Civil Procedure, 1908—Order X, Rule 2 and Section 115—Dismissing application—Remedy against—Not revision under Section 115—Because that order is interlocutory in nature and also does not decide any substantive right of parties—It does not even terminate any stage of proceedings so as to come within meaning of ‘case decided’, as envisaged by Section 115—But such order can be challenged by filing writ petition under Article 227 of Constitution of India, 1950 for judicial review. [Paras 7 and 8]
(B) Code of Civil Procedure, 1908—Order X, Rules 2(1), 2(2) and 2(3)—Constitution of India, 1950—Article 226—Applictation—Filed by defendant—On ground that plaint is vague and therefore, it is necessary to summon particular party of plaintiffs’ side for its elucidation by examining him—Dismissed—Order of dismissal neither cause any prejudice nor affect any right of parties—It is amenable to challenge even after decision of suit—Word “shall” used in Rule 2(1)—Does not make provision mandatory—This view is clear from word ‘may’ used in Rules 2(2) and 2(3)—Court can elucidate nature of controversy on basis of pleadings and other materials on record—In this case Court below refused to summon person, who was sought to be summoned, for examination under its discretionary powers—High Court while exercising its powers of Superintence under Article 227 found no ground to interfere with order of Court below. [Paras 9, 10 and 12 to 20]
Result; Petition Dismissed.
Hon’ble Pankaj Mithal, J.—Heard Sri P.N. Srivastava, learned counsel for the petitioners and Sri Ajay Kumar Singh, learned counsel appearing for the plaintiff-respondent.
2. The petitioners have impugned the order dated 3.9.2016 passed by the Court of first instance in Original Suit No. 52 of 2015 by which the application purported to have been filed under Order X Rule 2 C.P.C. has been rejected.
3. The facts of the case reveal that the plaintiff-respondent filed a suit for declaring the sale-deed dated 15.12.2014 to be void and for a decree of permanent injunction in respect of the suit property. In the said suit, after parties have exchanged pleadings and the matter was fixed for framing of issues, the petitioners moved an application on 22.8.2016 under Order X Rule 2 C.P.C. contending that the plaint is very vague and, therefore, Saurabh Agarwal, Managing Director of the plaintiff-responent be summoned for examination to get elucidated the facts stated therein.
4. The aforesaid application has been rejected by the impugned order dated 3.9.2016.
5. Sri Ajay Kumar Singh, learned counsel for the petitioner has raised a preliminary objection that the impugned order is revisable under Section 115 C.P.C. and the application under Order X Rule 2 C.P.C. itself was not maintainable.
6. The purpose of Order X C.P.C. is to authorize the Court to examine the parties to ascertain if they admit or deny the allegations of facts as contained in the pleadings and to elucidate matters in controversy. It is not an examination on oath but mere oral statement.
7. The examination or refusal to examine the parties under the aforesaid provision does not decide any substantive rights of the parties and does not even terminates any stage of the proceedings so as to make the order a case decided for the purposes of seeking its revision. The order impugned is rather purely interlocutory in nature and is not a case decided within the meaning of Section 115 C.P.C.
8. In view of the above, it is not a revisable order and is open for judicial review, if necessary, by this Court in exercise of power of superintendence under Article 227 of the Constitution.
9. Order X Rule 2 C.P.C, no doubt, does not envisages filing of any application by either of the parties but the filing of the application for drawing the attention of the Court to the said provision is not barred and does not cause any prejudice to the parties or affects the power of the Court to examine the parties under Order X Rule 2 C.P.C.
10. In such a situation filing of the application even though not necessary for inviting the attention of the Court to the provisions of Order X Rule 2 C.P.C.cannot be said to be an abuse of the process and to hold that such an application is not maintainable.
11. Sri Srivastava has argued that the provisions of Order X Rule 2 C.P.C. are mandatory in nature as the word ‘shall’ has been used therein and, therefore, his application was not liable to be rejected.
12. It is well acknowledged that at times the use of the word ‘shall’ is read as ‘may’, more particularly when the Statute does not provide for any penal consequence.
13. The provisions of Order X Rule 2 do not provide for any penal consequences if the Court ignores the mandate of getting the matters in controversy in the suit elucidated by orally examining either of the parties appearing in person or present in Court. In this view of the matter the word ‘shall’ used in sub Rule (1) of Rule 2 of Order X C.P.C. is obviously discretionary in nature and not mandatory despite the use of word ‘shall’ in sub-rule (1) of Rule 2 of Order X C.P.C.
14. A plain and simple reading of the provisions of the Order X Rules 2(1) and 2(3) C.P.C. reveals that the word ‘shall’ has been used in sub Rule (1) whereas the word ‘may’ has been used in sub Rule (3).
15. The use of word ‘may’ in sub-Rule (3) further confirms that the word ‘shall’ used in sub-Rule (1) is not intended to convey that the provision is of mandatory
