LAXMICHAND Vs. HARAKCHAND

JUDGEMENT

(1.) THIS is a revision by the defendant Laxmichand against an order of the Senior Civil Judge, Sirohi, dated the 2nd January, 1954, and has arisen under the following circumstances.

(2.) THE plaintiff opposite party, Harakchand, filed this suit against the petitioner on the allegation that the latter owned to his (plaintiff's) maternal grand-father Devaji a sum of Rs 2378/- and Devaji had made a gift of his property to the plaintiff along with his two brothers. THE defendant resisted the suit on the ground that he had never received any money from Devaji and further that the plaintiff Harakchand was not alone entitled to bring the present suit as Devaji had made a gift of his property to Harakchand and his two other brothers Phoolchand and Jawanmal jointly and, therefore, these persons were also necessary parties to the suit and as they had not been impleaded therein, the suit was bad for non-joinder of necessary parties and deserved to be dismissed. THE trial court dismissed the suit on the ground of nonjoinder of necessary parties on the 31st March, 1951. On appeal the District Judge maintained the decree of the trial court. THEreafter the plaintiff came in appeal to the Court and a Division Bench, by its judgment dated the 2nd September, 1953, allowed the appeal and remanded the case for retrial with the direction that - "the trial court will give notice to the parties on receipt of this record from this Court, and the plaintiff will be allowed to file an amended plaint within one month of the receipt of the notice by him, provided the plaintiff pays the defendant Rs 200/- as costs for the amendment within that period of one month. . . . . . . . . . . If costs are not paid and the amended plaint is not filed within the time allowed, the suit would stand dismissed. " It is important to mention in this connection that on the 14th April, 1950, Harakchand plaintiff had applied in the trial court for permission to amend his plaint whereby he wanted to implead his two bothers Phoolchand and Jawanmal as plaintiffs in the suit but this application was rejected. After remand the record was placed before the trial court on the 21st September, 1953. On that day the Senior Civil Judge passe an order by which it registered the suit and directed that counsel for the parties be informed of the next date of hearing which was fixed as the 4th November, 1953. THE court further said that the plaintiff shall, in accordance with the judgment of the High Court dated the 2nd September, 1953; give the sum of Rs. 200/- as costs to the defendant and put in the amended plaint within one month of the date of the notice. It may be pointed out that neither the parties nor their counsel were present on that date. It appears, however, that Mr. M. R. Modi, counsel for the defendant and Mr. K. J. Singhi, counsel for the plaintiff, accepted the notice on the 12th and 13th October, 1953, respectively, and in lieu thereof, put their signatures on the order-sheet. On the 4th November, 1953, both counsel were present. A prayer was made on behalf of counsel for the plaintiff for time to deposit the sum of Rs. 200/- and to put in the amended plaint. THE court gave a direction that counsel for the plaintiff should comply with the order of the High Court dated the 2nd September, 1953, and the case was fixed for the 19th November, 1953. In the meantime, on the 9th November, 1953, Mr. Singhi counsel for the plaintiff deposited the sum of Rs. 203/- by an application in which he also prayed that an order be given for allowing the necessary amendments in the plaint. This application was also signed and presented by the plaintiff and the court made an order that the sum of Rs. 200/- be deposited and a receipt issued. THE amended plaint was, however, put in on the 19th November, 1953. An objection was at once raised on behalf of the defendant that the amended plaint had been presented beyond the time fixed by the High Court in its order dated the 2nd September, 1953, and that he wished to file a written objection and prayed for time to do so which was granted, and the case was then posted for the 2nd December, 1953. This objection was put in accordingly and rejected by the Senior Civil Judge by his order dated the 2nd January, 1954, against which the present revision has been brought. THE contention raised on behalf of the defendant was that the plaintiff's counsel had accepted notice in this case on the 13th October, 1953, and that this notice to the plaintiff's counsel was sufficient notice to the plaintiff himself according to O. III. r. 5 C. P. C. and that the amended plaint was filed on the 19th November, 1953, which was beyond one month's time permitted by the High Court; and, therefore, the plaintiff's suit stood dismissed on that date by virtue of the High Court's order dated the 2nd September, 1953. THE conclusion of the learned trial Judge is that one month's time should be counted not from the 13th October, 1953, but from the 4th November, 1953, when Shri Singhi undertook to file the amended plaint and deposit Rs. 200/- and wanted time for it", as the plaintiff must be deemed to have received notice of what he was required to do on that date and not earlier. THE trial Judge also said that by the order which he passed on the 21st September, 1953, counsel for the parties were to be informed merely about the next date of hearing and that so far as further step to be taken were concerned, a notice was to be issued to the plaintiff, which notice was, however, not issued and the necessity of issuing a further notice disappeared only on the 4th November, 1953, when Mr. Singhi on behalf of the plaintiff undertook to file the amended plaint and deposit the requisite sum of Rs. 200/ -. It is contended in this revision that the learned Judge below had completely mis-directed himself in passing the order which he did and that on the 19th November, 1953, the day on which he held that the amended plaint was within time, he was completely Functus Officio and there was no proceeding left alive before him owing to the failure on the part of the plaintiff to comply with the direction given by the High Court in its order dated the 2nd September, 1953, according to which, on the plaintiff's failure to pay the sum of Rs. 200/- and to present the amended plaint, the suit was to stand dismissed automatically and without any further order.