KHAGGANAPALLE MUNEPPA Vs. KURUBA SEGUNIGUTLA THIPPANNA

JUDGEMENT

(1.) This revision petition is directed against the Order of the District Judge, Chittoor, in a Civil Miscellaneous Appeal preferred before him against the order of the District Munsif, Kuppam, dismissing the application for restoration of the suit on the ground that there was no sufficient cause. The sole point for determination in this revision petition is as to whether the Courts below were justified in dismissing the application for restoration. The brief facts relating to the case are that the plaintiff-petitioner who is a minor, filed a suit by his next friend, being O.S.No. 64 of 1952 in the Court of the District Munsif, Kuppam, for the recovery of his half share as one of the reversioners entitled to the same. This suit was filed as against other reversioner, who was made respondent No. 2, and it was stated that he was entitled to the other half. During the pendency of the suit the plaintiff filed a petition for amendment of the plaint by reason of the subsequent events that took place after the institution of the suit.This, application for amendment of the plaint was allowed by the trial Court and the matter was taken up by way of revision before the High Court of Madras in C.R.P. No. 1082 of 1953 and it was disposed of by the High Court of Madras by its judgment dated 17th October, 1955 and the revision was dismissed and the order of the trial Court confirmed. After the case was disposed of by the High Court the matter came up before the trial Court. The District Munsif issued a notice on 22nd November, 1955, fixing the date of hearing as the 6th of December, 1955 calling upon the parties to be ready to go on with the trial. On that date, the next friend of the minor plaintiff filed an application for adjournment alleging that he went to his vakil to take necessary steps for summoning the witnesses and the vakil asked him to bring all the suit records from his counsel at Guntur, so that he might see the papers and take steps to get ready with the trial of suit, and as per the instructions of the counsel he went to Guntur to bring the case bundle and that he was able to get it only just prior to the date of the trial of the suit and as such had no sufficient time to take steps to go on with the trial of the suit. He stated further that he was not well-acquainted with the Court work and that he was diligently prosecuting the above suit. This application was opposed by the defendant and the Court after enquiry came to the conclusion that there were laches on the part of the next friend of the minor and there were no sufficient or adequate grounds for the unreadiness on the part of the next friend of the minor to go on with the trial of the suit. In the result, the petition was dismissed and the suit was consequently dismissed for default.

(2.) When the matter came up before the lower appellate Court, the learned District Judge, after examining the evidence in the case, disbelieved the statement of the plaintiff's next friend relating to the late receipt of the records. The learned Judge came to the conclusion that the parties had wilfully defaulted and had been negligent in the prosecution of the suit. In the conclusion he arrived at, he agreed with the trial Court that there was no sufficient cause for the restoration of the huit and dismissed the appeal. The plaintiff has now filed this revision aggrieved by the aforesaid decision.

(3.) A preliminary objection is raised by the learned counsel for the respondent to say that no revision would lie and this Court would not ordinarily interfere under section 115, Civil Procedure Code, in a case of this kind, and for this purpose reliance is placed on the oft-cited decision of the Supreme Court in Keshardeo Ghamria v. Radha Kissen Chamria, (1952) S.C.J. 633 : (1953) 1 M.L.J. 100 : A.I.R. 1953 S.C. 23. Their Lordships in that case were concerned with the question as to whether the High Court had, in the exercise of its appellate jurisdiction, any power to reverse the decision of the Subordinate Judge in correcting his own error in exercise of the power vested in him under section 151, Civil Procedure Code. Their Lordships observed that an order under section 151, Civil Procedure Code, simpliciter is not appealable and that such an order did not come within the appealable orders given in Order 43, rule i, Civil Procedure Code, and in those circumstances it is not proper for the High Court to entertain an appeal under the guise of a revision. No doubt, while stating so, they observed that the errors contemplated in section 115 of the Code of Civil Procedure relate to the material defects of procedure and not to errors of either law or fact as much to say any error of law would not be sufficient for interference under section 115, Civil Procedure Code.