ARUNACHALLAM CHETTIAR Vs. SIVALINGAM CHETTIAR

JUDGEMENT

(1.) This civil revision petition is against the order of the lower Court holding that it has no jurisdiction to entertain a petition to set aside certain findings recorded by it on 28 October 1926 in O. S. No. 64 of 1925.

(2.) The facts are as follows: O. S. No. 64 of 1925 is a suit for partition. A preliminary decree had been passed and an enquiry into accounts was ordered. It was posted for 27 October 1926, the defendant having undertaken to produce his witnesses on that day. On that day, when the suit was called on for hearing, the defendant's pleader asked for an adjournment on the ground that defendant was ill and could not appear and that his witnesses also were absent. The adjournment was refused. P. W. 15, witness for the plaintiff, then went into witness-box and was examined and the defendant's pleader cross-examined him. Plaintiff's case was then closed and the Court called on the defendant's pleader to put forward his case. He then said he had no instructions and presumably retired from the case. The Court adjourned the case for findings on the evidence recorded to the next day and on that day findings were pronounced and the case was adjourned to 15 November 1926 for further proceedings by way of division of the property. On 10 November 1926, defendant's vakil put in a petition asking the Court to set aside what he called the ex parte findings. The Court rejected that petition, holding that the defendant was not absent in the legal sense, that the findings were not ex parte and that Order 9, Rule 7 has no application. The defendant comes up in revision.

(3.) It has been pointed out by the respondent that the final decree in the suit was passed on 29 November 1926, before this petition was filed in this Court, and it is contended that therefore it is not open to the petitioner to have the matter raised by way of revision since he can raise it by way of appeal against the final decree. It is not, however, an invariable rule of this Court that it will not interfere in revision when a party has another remedy open to him although certainly in such cases it would require very strong grounds to induce the Court to interfere. My attention has not been directed to any case in which this Court has interfered in revision to set aside an interlocutory order or finding in a suit on a petition presented after the final disposal of that suit by the lower Court. The petitioner obviously has his ordinary remedy by way of appeal. This is not a case in which the order under revision is an order absolutely without jurisdiction as was the case in Manickam Pillai V/s. M. Bathummal A. I. R. 1925 Mad. 209 relied on by the petitioner. I have, however, heard the case on the merits in order to see whether there are any very strong grounds for interfering at this stage, or for supposing that the matter cannot be adequately dealt with on appeal. It appears to me that it by no means follows as a matter of course that a reversal now of the Subordinate Judge's order will entail the cancellation of the decree now passed. A reversal of that order would, at the most, lay down that the Court was mistaken in holding that it had no jurisdiction to entertain the petition and set aside its finding; but there is nothing in that which would ipso facto involve a cancellation of the decree.