ISHWAR LAL BHAGAT RAM Vs. ASULAL

JUDGEMENT

(1.) THIS revisional application was directed against an order dated December 4, 1996 passed by the Additional Civil Judge (Junior Division) No. 1, Jodhpur in Civil Original Case No. 270/95 whereby he closed the right of cross- examination in respect of the plaintiff. The defendants No. 2, 3 and 4 are the petitioners before us. The suit was for a money claim for Rs. 9,656. In the suit thestatement of the plaintiff has been recorded and his examination-in-chief is complete and the case was fixed for cross-examination of the plaintiff on 4. 12. 1996.

(2.) IT is the contention of the defendants that the plaintiff opposite party M/s. Asulal and Sons has wrongly joined the petitioners and they contested their liability inter alia contending that the firm defendant no. 2 M/s. Ishwar Lal Bhagat Ram ofwhich Bhagat Ram and Nathmal are the partners are not liable for the alleged guarantee given by their another partner Purshottam Das as the guarantee was in his individual capacity for the reasons stated in the written statement. The petitioners moved an application in the trial court for impleading the heirs of late Purshottam Das as defendants for a correct decision of the case. This application was dis-missed by the trial court vide its order dated 12. 7. 96 and against this order revision petition being no. 743/96 was filed in this Court which was admitted on 9. 9. 96 and the order of issue of notices has been passed. In view of the pendency of the said revisional application when the case came up in the trial court on 4. 12. 96 for cross-examination of the plaintiff, it was requested by the defendant-petitioners thatan adjournment may be granted for obtaining appropriate stay order in the revisional application which was numbered as S. B. Civil Revision Petition No. 743/96 but this prayer was refused. The trial court refused the opportunity to the defendants of further cross-examination of the plaintiff. From the side of the petitioners reliance was placed on a judgment dated 14. 8. 95 passed by a Single Judge of thiscourt in S. B. Civil Revision Petition No. 558/95 in which it was observed by the learned Single Judge that when a revision petition was already presented before the High Court and the party is expected to obtain a stay order, in such a situation, the learned trial court was not justified to reject the application for granting of an adjournment so as to bring stay order from the High Court. In such circumstancesjudicial propriety demanded that the moment the application was placed before the trial court making a request to adjourn the case so as to bring stay order from the High Court, learned trial court ought to have stayed the order and ought to have granted time to bring the stay order from the High Court. IT was observed further in the said case as follows:- "it must be remembered by all the Civil Courts that it would be a sad day indeed if compulsions of equity and justice as well as respect for higher Courts are sacrificed on the basis of procedural law. The rigidity of the rules and adherence to the procedural law, there is apparently considerable scope of discretion of civil Courts under the Code of Civil Procedure for granting atleast ten days time to bring the stay order from this Court. The use of discretion contemplated under Section 151, CPC is from the point of introducing an element of humanism which carries with it justice oriented approach. He who clings to the letter, clings to dry and barren shell and misses the truthand substance of justice and fair play. Whenever and wherever there is choice before the Civil Courts, they are expected to choose to pass such order which accord with reasons and justice. In fact what is just and reasonable should always be treated to be lawful, not otherwise. IT is true that the revision against the order dated 2. 8. 95 has been dismissed by this court upholding the order of the learned trial Court allowing the revisionist to file his objection. IT is brought to my notice that now after passing the impugned order, the learned trial court is refusing to accept the objection of the revisionist which amounts travesty of justice and fair play. This is a myopic approach of the learned trial court, which is hereby deprecated. " The revisional application was ultimately disposed of by the learned Single Judge with a direction to the lower appellate court to allow the revisionist to file hisobjections in pursuance of his order as passed earlier. However in the instant case the learned Additional Civil Judge refused to grant time by following the judgment of the Single Judge on the ground inter alia but that three months had already expired from the filing of the revisional application.

(3.) I am inclined to agree with the view expressed by Hon'ble Amarendra Nath Sen, J. and not with that expressed by Hon'ble D. A. Desai, J. "