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1979 Supreme(MP) 9
High Court Of Madhya Pradesh
U. N. Bhachawat, J.
M.P.STATE CO-OPERATIVE LAND DEVELOPMENT BANK LTD., BHOPAL - Appellant
Versus
J.L.CHOUKSEY - Respondents
Civil Revn. 750 Of 1976
Decided On : 01/12/1979
Gulab Gupta, K.L.ISSRANI
Headnote:(1) Civil P.C., 1908 - Ss. 2(2) and 96, O. 6, R. 5 - suit dismissed because the plaintiff did not furnish better particulars - order amounts to decree and is appealable.
Where the trial Court dismisses a suit on the ground that the plaintiff has failed to give better particulars, the order amounts to decree and is appealable. 1976 JLJ 797 (FB) relied on. 1975 JLJ 52 held overruled by the Full Bench. [Para 8
(2) Civil P.C., 1908 - O.6, R.5 - suit for ejectment on various grounds-better particular not furnished in respect of some grounds-whole of the suit cannot be dismissed.
The suit for ejectment has been based on various grounds. On the non furnishing of these particulars the grounds to which these particulars related should have been struck out. The whole suit could not be dismissed as there is no finding of the trial Court that on striking out the grounds to which these are related, no cause of action for the suit survived. The Courts are Courts of justice and not of military discipline. The extreme peualty of dismissing the suit is not justified at all. [Para 9
(3) Civil P.C. 1908 - O. 41, R. 1 - requirement of filing certified copy of the decree - is mandatory - order on such incompetent appeal - is without jurisdiction. The requirement of filing the certified copy Of the decree: along with the memorandum of appeal is imperative and in the absence of the decree, the filing of the appeal would be incompleate, detective and incompetent. AIR 1961 SC 832 relied on. [Para 13
In view of the mandatory requirement of Order 41 rule 1 of the Code, it cannot, but be held that there was no competent appeal before the lower appellate Court. The lower appellate Court had therefore no jurisdiction to proceed with such incompetent; defective and incomplete appeal and decide it. The lower appellate Court has, therefore, committed a jurisdictional error in rendering the impugned decision. [Para 15
(4) Civil P. C., 1908 - S. 115 - suo motu revisional powers - when may be exercised - order appealable as decree but decree not drawn up-order of trial Court materially illegal and will cause in justice - powers of suo motu revision should be exercised.
(5) Revision - powers of suo motu - when may be exercised even when appeal not filed.
In the light of the peculier facts of this case, it would not be just to throw out the plaintiff on the ground that, the plaintiff should have applied for the drawing of a formal decree in the trial Court after the framing of the decree, should have filed a regular appeal in the lower appellate Court and in the event of dismissal of that appeal ought to have come to this Court in second appeal in which the order would have been decided. The justice would be lost in technicalities. [Para 17
It is a matter of technicality whether the impugned order of the trial Court is set aside in exercise of appellate jurisdiction or in exercise of revisional jurisdiction. The laws should be inserpreted to advance the cause of justice. AIR 1970 SC 1 relied on. [Para 19
The trial Court has committed an illegality and if its impugned order is allowed, it would result in injustiee. It is a fit case for exercise of the revisional powers suo motu. [Para 20
( 1 ) THIS is a revision by the plaintiff which has arisen in the following manner:
( 2 ) THE applicant filed a suit for ejectment and arrears of rent on the alleged ground of relationship of landlord and tenant in the Court of Second Civil Judge, class II, Bhopal being Civil Suit No. 22-A of 1973. In this suit, the defendant non-applicant herein had filed an application under Order 6, Rule 5 demanding further and better particulars in the plaint which was allowed by that Court vide its order dated 26th June, 1973 and the plaintiff was directed to supply the following particulars:
(i) Whether the tenancy is oral or in writing? (ii) Whether the plaintiff has obtained the necessary permission for the proposed reconstruction? (iii) Whether the plaintiff has sufficient funds for the same? (iv) How the plaintiff requires the suit premises for itself?
( 3 ) THE aforesaid particulars were not supplied till 14th, Nov. 1973 and on various dates falling between this date and the date on which the furnishing of particulars was ordered, adjournments were sought for furnishing particulars by amending the plaint. ( 4 ) ON 14-11-1973, the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code ). This application is not on record. But it is agreed by the learned counsel for the parties that from amongst the 4 particulars that were ordered to be furnished by the trial Court, particulars Nos. 1 and 3 were furnished in the said application and particulars NOS. 2 and 4 were not furnished. The trial Court, vide its order dated 14-11-73, while dismissing this application of the plaintiff, dismissed the suit for the non-compliance with the order of that Court dated 26th June, 1973. The material excerpt of that order reads as under:. . (Text in Hindi not Printed ). .
( 5 ) THE plaintiff against this order, filed an appeal (Misc. Civil Appeal No. 1 of 1974} in the Court of the First Additional District Judge, Bhopal which has been dismissed by that Court vide its order dated 30th March, 1976 whereby the lower appellate Court relying on a decision of this Court in Smt. Chamarin v. Mst. Budhiyarin, AIR 1975 Madh Pra 74 held that no appeal lay against the order of the trial Court dismissing the suit for non-compliance with Order 6, rule 5 of the Code as it was not a decree within the meaning of Section 2 (2) of the Code and dismissed the appeal on that solitary ground, without examining the merits; hence the plaintiff has filed the present revision against both the orders, that is, the order of the trial Court dismissing the suit as well as the order of the lower appellate Court holding that no appeal lay.
( 6 ) IT was argued on behalf of the plaintiff that the lower appellate Court was wrong in holding that the appeal did not lie; that the trial Court was wrong in dismissing the suit without examining as to what were the particulars which were not furnished and the trial Court had no jurisdiction to dismiss the suit for non-furnishing of some of the particulars. The learned counsel has submitted that the present revision is filed against the order of the trial Court also. He argued that as no decree was drawn by the trial Court and only a memo of costs was prepared, the order of the trial Court would be revisable and the revision can be entertained by this Court. He also argued that as the record of the case is before the Court and the order of the trial Court is patently illegal and without jurisdiction, this Court in exercise of its jurisdiction should set it aside.
( 7 ) THE learned counsel for the defendant non-applicant herein in his argument in counter supported the order of the trial Court. He submitted that when on a number of occasions, the case was adjourned at the request of the plaintiff and still the plaintiff did not furnish the full particulars, the trial Court had no other alternative, but to dismiss the suit. He also argued that the impugned order of the
