AHUJA AUTO WORKS Vs. POPULAR GASKET IND

JUDGEMENT

(1.) Facts giving rise to this revision petition are that: The respondent firm was a tenant in respect of the part of the property bearing No. 11115 Anand Parbat, New Rohtak Road, New Delhi belonging to the petitioner-firm. Respondent No.2 filed the civil suit bearing No.52/96 for dissolution of partnership and rendition of accounts against respondents 3 & 4, who are the partners of the respondents' firm. During the pendency of the suit, a joint application dated 20.3.1990 was moved by the parties seeking leave of the court to surrender the tenanted premises to the peti-tioner/landlord. On this application, the trial court passed the following order: "Present: Parties in person They have partly compromised to surrender the tenancy premises at 17/15 Anand Parbat New Rohtak Road. Written compromise duly signed by the parties and their advocate is placed on record. It is submitted that the keys of the premises are deposited in the court. Same are hereby returned to the parties for handing over the possession of tenanted premises to the landlord.Put up on 2/7 for compromise." On 2nd July, 1990, the petitioner filed an application under Order 1 Rule 10 read with Section 151 C.P.C.for his impleadment in the suit. Alongwith that application he also filed an application under Order 39 Rules 1 and 2 CPC and the Court adjourned the case for 29th August, 1990. Thereafter, on 24-1-1991, the plaintiff/respondent No. 2 filed an application U/o 23 R 1 CPC seeking leave to withdraw the suit. However, after several adjournments, the case was fixed for 27-2-91. On 27th February, 1991, the plaintiff and the defendant were absent as a result whereof the suit was dismissed for want of prosecution and it was observed by the learned trial court that since the suit Chand KumarVs. U.O.I has been dismissed, the application filed by the petitioner under Order 10 Rule 1 cannot consider. Feeling aggrieved the petitioner has come up in revision before this court.

(2.) The impugned 'order has been assailed on the ground that the learned trial court has no jurisdiction to dismiss the suit during the pendency of the application filed by the petitioner under Order 1 Rule 10CPC. The petitioner's further grievance is that despite the courts order dated 20th March, 1991 the respondents have not delievered the keys of the tenanted premises to him. On a perusal of the impugned order it appears that the case was adjourned to 27.2.1991 for passing an appropriate order on an application filed by the respondent No. 2 under Order 23 Rule I CPC. On that date neither plaintiff nor defendant appeared before the court as a result whereof the learned trial court dismissed the suit under Order IX Rule 3 CPC. The order IX Rule 3 CPC lays down as under: "3.Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."

(3.) Thus, the learned Trial Court had jurisdiction to dismiss the suit under Order IX Rule 3 CPC. It has been held by the Apex Court in Pandurang Dhoni Vs. Mauriti Hari Jadhav AIR 1966 SC 153 that this Court while exercising its jurisdiction U/s 115 CPC cannot correct errors of fact, how -ever gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction or which ultimately go to the root of the jurisdiction of the Court. Since the learned Trial Court had jurisdiction to make the impugned order, it cannot be held that it had exercised its jurisdiction either illegally or with material irregularity. The decision in Ranideo Singh Vs. Kamakhya Narain Singh AIR 1984 Patna 157 cited by the learned counsel for the petitioner in support of his contention is factually distinguishable and the ratio decidendi of the said case does not govern a case like in hand.