BHAGIRATH Vs. SAMDU KHAN

JUDGEMENT

(1.) THIS is a revision by Bhagirath in a receivership matter and has arisen in the following circumstances.

(2.) BHAGIRATH filed a suit for rendition of accounts and dissolution of partnership on the 6th July 1951, in the court of Munsif Nawa. He made an application for appointment of a receiver the same day. On the 9th July, 1951, the Munsif appointed an ad interim receiver ex parte, and also issued notice to the defendants to file any objection to the ex parte appointment. On the same day, Samdu Khan, now opposite party No. 1. appeared, and objected to the appointment of a receiver. On the 21st July, 1951, cause was shown why the receiver should not be allowed to continue any further, and an affidavit was filed by the defendants in support of their objection. On the same day, the plaintiff applied for cross examination of Samdu Khan defendant who had filed the affidavit. 1st of August, 1951, was fixed for that. Samdu Khan did not appear on that date on the ground that he was ill, and a prayer was made for postponement of his cross-examination. The case was then fixed for 11th August, 1951. In the meantime, however, Samdu Khan filed an appeal against the order, and proceedings in the Munsif's court were stopped. The appeal was decided on the 10th September, 1951, and was allowed. Thereupon, the present revision was filed in this 'court. It came up for decision before a learned single Judge who has referred the case to a Division Bench. Two preliminary objections were raised before him, which have been argued at length before us. These objections are - (1) In view of the order of the admission Judge, dated the 18th September, 1951, it was not open to the applicant to contest the correctness of the order of the appellate court; and (2) That the revision is not maintainable.

(3.) WE have, therefore, to see whether in this case the District Judge can be said to have acted illegally or with material irregularity in deciding the appeal before it. Two matters stand out clearly in this case as to the manner in which the District Judge acted in deciding the appeal. The first is that he referred to the material to which he should not have referred, and which was not before the Munsif when he passed the order on the 9th July, 1951. In so doing he acted contrary to the fundamental principles of judicial procedure, and took into account evidence which should not have been considered by him. The second is that he did not apply his mind at all. to the main point that required consideration, and largely misapprehended what he had to decide. He should have directed his mind to the question whether the applicant was entitled to take part in the partnership business, and was wrongfully excluded by the other partners from taking his rightful part in it. In these circumstances, it can be said in; this case that the District Judge acted with material irregularity in exercising his jurisdiction while deciding the appeal, and we have, therefore, power to interfere under sec. 115 (c), and the revision is competent.