MATTHAN SINGH Vs. ADDL D J MEERUT

JUDGEMENT

(1.) D. K. Seth, J. The present petition has been sought to be moved under Article 226/227 of the Constitution of India against the order dated 2nd September 1995 passed by the learned IInd Additional District Judge, Meerut in Misc. Appeal No. 78 of 1992 arising out of the order dated 14th February 1992 passed by the learned Civil Judge, Meerut in Original Suit No. 1225 of 1991.

(2.) ORIGINAL Suit No. 1225 of 1991 was initiated by one Raghubir against Matthan Singh and others for permanent injunction restraining the defendants from interferring in the possession of the plaintiff over the suit property. On the application for grant of temporary injunction filed by the plaintiff, the learned Civil Judge passed an interim order on 28th November, 1991. After the defendant had contested the said application, the interim order of injunction was vacated by order dated 14th February 1992 passed by the learned Civil Judge in the said suit. Aggrieved, the plaintiff preferred an appeal being Misc. Appeal No. 78 of 1992 in the Court of the District Judge, Meerut against the said order dated 14th February 1992. The said appeal was ultimately transferred to the Second Court of Additional District Judge, Meerut. The said Misc. Appeal No. 78 of 1992 was taken up for hearing on 29th May, 1995 when the defendant-respondent, petitioner herein, was present in the Court Room. The counsel for the petitioner, on account of his personal difficulty, had moved an application for adjournment which was dismissed, whereupon the counsel for the petitioner had moved another application immediately for permission to withdraw from the appeal since he was unable to attend the Court so that the interest of his client may not suffer. The learned Additional District Judge did not pass any order on the said application and proceeded to hear the appeal in the presence of the petitioner's counsel without giving opportunity to the petitioner to engage any other counsel and the petitioner, being an illiterate rustic person, was unable to participate in the proceeding. He was neither heard nor argued the matter. By order dated 29th May, 1995, the appeal was allowed. In the order, it was recorded incorrectly that the petitioner was also heard though he could not participate in the proceedings. In the circumstances, on 31st May 1995, the petitioner filed an application for recalling the order dated 29th May 1995 to which the plaintiff-appellant, respondent herein, filed his written objection on 25th August, 1995. Out of the said application for recalling, Misc. Case No. 20 of 1995 was registered. The said Miscellaneous case was dismissed by order dated 2nd September, 1995 on the ground that the order dated 29th May, 1995 was not an ex parte order. It is this order which is under challenge in the present petition.

(3.) AFTER the Code of Civil Procedure was amended by Act No. 104 of 1976 which came into force on 1st February 1977. The same stood further amended by the Code of Civil Procedure (Uttar Pradesh Amendment) Act No. 31 of 1978 which came into force on 1st August, 1978. The present Section 115 of the Code of Civil Procedure, as amended by the said U. P. Act No. 31 of 1978 reads as follows: "115. The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before Aug. 1, 1978 and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity; the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit. Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this Section. Provided further that the High Court or the District Court shall not under this Section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceedings, except where: (i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding ; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Explanation - In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceeding. "