ARUN KUMAR MITTAL Vs. HARI SHANKAR

JUDGEMENT

(1.) Heard Sri Shubham Agarwal, the learned Counsel for the petitioner and Sri B.B. Jauhari, the learned Counsel for the respondents.

(2.) It transpires that on 1.1.2002 an application 48-Ga, to keep certain documents on record, was rejected by the trial Court. While rejecting the application 48-Ga the trial Court recorded that since the date was fixed for evidence and the plaintiff had not produced any witness, therefore, the case would proceed under Order XVII, Rule 3 C.P.C. The Court accordingly fixed 5.10.2002 for the delivery of the judgment. Immediately after the passing of the said order, an application 59 Ga of the same date, was moved by the plaintiff stating therein that the plaintiff himself was present in the Court and was ready to give his evidence and that, by an error, an order under Order XVII, Rule 3 had been passed. The plaintiff, therefore, prayed that in the interest of justice, this portion of the order be recalled and, that the petitioner be permitted to lead the evidence. This application came up for consideration before the trial Court on 23.10.2002 on which date the Court recalled its order by exercising its inherent powers holding that the suit should be decided on merit after evidence is led by the parties. Aggrieved, the defendant filed a revision which was allowed by an order dated 20.5.2005 holding that once an order was passed under Order XVII, Rule 3, the said order cannot be recalled relying upon judgment reported in AIR 1954 Alld. 222, Faiyaz Khan Vs. Mithan, in which it was held that against and order passed under order XVII, Rule 3, no application under Order IX, Rule 13 was maintainable. The revisional Court further relied upon a decision of the Supreme Court in AIR 1964 SC 993, Arjun Singh Vs. Mohindra Kumar and others, on the proposition that an application under Order IX, Rule 7 of the C.P.C. was not maintainable where the hearing was adjourned.

(3.) In my opinion, the revisional Court committed an error in allowing the revision. The judgments cited are not applicable and are totally distinguishable. The trial Court rightly exercised its inherent powers in holding that there was some doubt as to whether the plaintiff was ready with his witness or not. It has already come on record that the plaintiff was present in the Court when the order dated 1.10.2002 was passed. Accordingly, it is doubtful as to whether the trial Court could have proceeded under Order XVII, Rule 3 of the C.P.C. In view of the aforesaid, the trial Court rightly recalled its order dated 1.10.2002 by its order dated 23.10.2002.