SURJIT SINGH Vs. RAJ RANI

JUDGEMENT

(1.) THIS Revision Petition is directed against the order passed by the Subordinate Judge First Class, Ambala City, in a suit filed by Surjit Singh and another petitioners against Shri Ram etc. defendants (the former who is since deceased represented by his legal Representatives) for the recovery of Rs. 8,980/-.

(2.) THE facts relevant for the purpose of the present Revision Petition may be briefly noticed. During the pendency of the above suit, when the matter was at the argument stage, an application was moved by the petitioners on December 1, 1981 for permission to produce additional evidence. The application was dismissed with costs of Rs. 50/- and the cse was adjourned to December 17, 1981 for arguments. On December 18, 1981 an application was filed on behalf of the defendant-respondents that the suit of the petitioners be dismissed under section 35-B of Code of Civil Procedure because the costs ordered against the petitioners on December 2, 1981 had not been paid on the next day. The application was resisted by the petitioners. After hearing the counsel for the parties, the trial Court accepted the application of the respondents and debarred the petitioners from prosecuting the suit. In fact, the suit itself was ordered to be dismissed.

(3.) ON the question as to whether a Revision Petition was competent or not, Mr. M.L. Sarin, learned counsel for the petitioners has submitted that the present Revision Petition was directed against the order passed by the trial Court, disposing of the application filed by the respondents with a prayer for dismissal of the suit under Section 350B of the Code and this being so, there was no necessity for the petitioners to impugn the order of dismissal of the suit which was only a consequential order, to the order passed on the above-mentioned application. After hearing the learned counsel for the parties, we find that the contention is indeed forceful. The trial Court appears to have passed a consolidated order, not only allowing the application filed by the respondents but also dismissing the suit of the petitioners in toto. Such an order is not sustainable. As already observed, no decree-sheet had been drawn by the trial Court and this fact is also obvious from the original application for copy filed by the petitioners before the trial Court which has been produced before us for perusal. On the said application, there is a report of the Copying Agency that the decree-sheet was not available, meaning thereby that the same had not been drawn. Apart from this fact, there can be no objection against the petitioners impugning only the order passed by the trial Court on the application of the respondents which order is not appealable as postulated under Order 41II, rule 1, Code of Civil Procedure. A Revision against such an order was, therefore, competent. The argument advanced by Mr. J.S. Chawla, learned counsel for the respondents that the impugned order had finally disposed of the suit and the same amounted to a decree against which only an appeal could be filed, is not tenable. The dismissal of the suit was only a consequential order and if the order passed by the trial Court on the application of the respondents is legally sustainable, the consequential order would automatically fall. What is, therefore, required to be seen is the legality and validity of the order passed on the application as aforesaid.