Tuesday, 21 April 2020

Whether revision is maintainable against order passed in application for framing of additional issues?

From perusal of the order dated 2nd May, 2006, it is evident that while RCA No. 326 of 2003, Smt.Ganga Dei v. Dan Bahadur is pending in the Appellate Court and applications were moved on behalf of the appellants/revisionists C52 and C53 under Order XLI, Rule 25, CPC for framing an issue on section 41 -H of the Specific Relief Act and the Appellate Court rejected this application by the impugned order. It has been held by this Court in MANU/UP/0063/1978 : AIR 1978 All 260 (FB) that "the power to frame additional issues is a discretionary power of the trial Court. Additional issues may be framed if the Court thinks necessary for determining the matter in controversy. By an order refusing to frame additional issues or allowing an application for framing of additional issues no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter only of procedure. The Court after examining the pleadings and other material on record as required under Rule 3, may frame issues. Since no right or obligation of a party is determined by an order refusing to frame additional issues such an order cannot be hold to be deciding a case between the parties and would not come within the ambit of the expression 'case which has been decided'. Similar would be the position in regard to an order by which additional issues are framed or amended." Hence in view of the judgment of this Court, framing or not framing additional issues is the discretionary power of the Court and if the Court thought that no additional issues is required to be framed, then it cannot be said that in the revision, the case will amount to decided finally. And, in my opinion, this is the correct position of law and after 1978 the Code of Civil Procedure has been drastically amended and there are drastic amendment in section 115, CPC and in view of the amended provisions of section 115, CPC, if any revision is finally decided if that will not amount to case decided, then no such revision can be entertained. In the present case if this revision is allowed, then the judgment of this Revisional Court will not amount to final disposal of RCA pending in the Court, even then the appeal is to be decided by the Court below and it will be more complicated in case the revision is allowed. If revision is allowed, then the case is to be remanded to decide afresh which is not permissible and, hence, I agree with the arguments of the learned Counsel for the opposite-party that against the order refusing to frame additional issues, revision is not maintainable.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 78 of 2006

Decided On: 04.08.2008

 Ganga Devi  Vs. Dan Bahadur

Hon'ble Judges/Coram:
Shiv Charan (Sharma), J.

 Citation: 2009(4) Civil court cases 350 ALL


1. There is an illness slip of the learned Counsel for the revisionists, as informed by the Bench Secretary of this Court, but, the learned Counsel for the opposite-party Sri Virendra Misra vehemently opposed this request of the learned Counsel for the revisionists for adjournment on the basis of illness slip and he also pointed out towards certain orders passed by this Court on different dates for adopting dilatory tactics to prolong this revision on the ground of illness of learned Counsel for the revisionists.

2. Firstly, learned Counsel for the opposite-party pointed out towards the order dated 5th November, 2007. It has been mentioned in this order that "there is illness slip of learned Counsel for the revisionists. However, the adjournment has been opposed on the ground that last time also illness slip has been sent while revision is not maintainable and the proceedings have been stayed". Further learned Counsel for the opposite-party attracted the attention of the Court towards order dated 15th January, 2008 and on that date also, the case was adjourned on the ground of illness of the learned Counsel for the revisionists and it was specifically ordered on 15th January, 2008 that although the case is adjourned but no further adjournment shall be granted. Again the same history was repeated by seeking adjournment on the ground of illness on 4th April, 2008. There was illness slip on behalf of the learned Counsel for the revisionists as usual as also learned Counsel for the opposite-party Sri Virendra Misra opposed the adjournment and attracted the attention towards the orders of this Court dated 5th November, 2007 and 15th January, 2008 and after hearing the learned Counsel for the opposite-parties' although the case was adjourned by the stay granted earlier was vacated. Thereafter this case was listed on 1lth April, 2008 and 12th May, 2008 and, on both the dates, the case was adjourned on the prayer of learned Counsel for the revisionists. However, on 18th July, 2008 also, the case was listed in the Court and, on that date also, illness slip was filed by the learned Counsel for the revisionists namely Sri Shesh Verma and thereafter the case has been listed today and by pointing out different orders of this Court, learned Counsel for the opposite-party stated-that there is no justification now to adjourn this revision and he also stated that the revisionists Counsel is aware of the settled position of law on this point and even then he is prolonging the matter.

3. Considering the history of this revision regarding adjournment, 1 do not think to adjourn the case on the ground of illness slip of the learned Counsel for the revisionists. The ground of illness is being misused by the Advocate for the interest and benefit of his client. This tradition has been developed in this Court, in order to consider the genuine ground of the learned Counsel. But if this ground of illness of the Counsel is being misused for the benefit of his client, then that is gross misuse of this tradition. Moreover, in the present case as stated above, there is gross misuse of this ground of adjournment developed in order to accommodate the genuine inability of the Counsel to appear in Court on the ground of illness. Sometimes in some case, it is also noticed that a particular advocate is working in one Court and in another Court, adjournment sought on the ground of illness slip in order to prolong a particular case, specially after obtaining stay orders. The sanctity of the tradition must be maintained. Under these circumstances, I am pained to decline this ground for adjournment and such a practice must be condemned. Advocates themselves must use the self discipline in the matter.

4. Heard learned Counsel for the opposite-party Sri Virendra Misra on this revision and perused the impugned order dated 2nd May, 2006. By way of this revision, the revisionists have challenged the order dated 2nd May, 2006 passed by the Special Judge (E.C.Act), Lucknow in RCA No. 326 of 2003, Smt.Ganga Dei v. Dan Bahadur and, by the impugned order dated 2nd May, 2006, the Appellate Court rejected the applications of the revisionists C-52 and C53 moved for framing additional issues as provided under Order XLJ, Rule 25, CPC and further prayer for adjournment was also rejected.

5. Learned Counsel for the opposite-party argued that in view of the judgment of this Court in Modi Spinning & Weaving Mills Co. & Anr. v. M/s.Ladha Ram & Co., MANU/UP/0063/1978 : AIR 1978 All 260 no revision is maintainable against an order passed on the application for framing additional issues. He also argued that in view of the Full Bench of this Court in Jupiter Chit Fund Pvt.Ltd. v. Dwarka Dheesh Dayal & Ors. 1979(5) ALR 341 revision is not maintainable at all if filed against the order passed in appeal. He also argued that this judgment of this Court of the Full Bench was affirmed by Hon'ble the Apex Court as in Vishesh Kumar v. Shanti Prasad MANU/SC/0052/1980 : AIR 1980 SC 892.

6. I have considered the facts and circumstances of the case and submissions of the learned Counsel for the opposite-party.

7. From perusal of the order dated 2nd May, 2006, it is evident that while RCA No. 326 of 2003, Smt.Ganga Dei v. Dan Bahadur is pending in the Appellate Court and applications were moved on behalf of the appellants/revisionists C52 and C53 under Order XLI, Rule 25, CPC for framing an issue on section 41 -H of the Specific Relief Act and the Appellate Court rejected this application by the impugned order. It has been held by this Court in MANU/UP/0063/1978 : AIR 1978 All 260 (FB) that "the power to frame additional issues is a discretionary power of the trial Court. Additional issues may be framed if the Court thinks necessary for determining the matter in controversy. By an order refusing to frame additional issues or allowing an application for framing of additional issues no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter only of procedure. The Court after examining the pleadings and other material on record as required under Rule 3, may frame issues. Since no right or obligation of a party is determined by an order refusing to frame additional issues such an order cannot be hold to be deciding a case between the parties and would not come within the ambit of the expression 'case which has been decided'. Similar would be the position in regard to an order by which additional issues are framed or amended." Hence in view of the judgment of this Court, framing or not framing additional issues is the discretionary power of the Court and if the Court thought that no additional issues is required to be framed, then it cannot be said that in the revision, the case will amount to decided finally. And, in my opinion, this is the correct position of law and after 1978 the Code of Civil Procedure has been drastically amended and there are drastic amendment in section 115, CPC and in view of the amended provisions of section 115, CPC, if any revision is finally decided if that will not amount to case decided, then no such revision can be entertained. In the present case if this revision is allowed, then the judgment of this Revisional Court will not amount to final disposal of RCA pending in the Court, even then the appeal is to be decided by the Court below and it will be more complicated in case the revision is allowed. If revision is allowed, then the case is to be remanded to decide afresh which is not permissible and, hence, I agree with the arguments of the learned Counsel for the opposite-party that against the order refusing to frame additional issues, revision is not maintainable.

8. Learned Counsel for the opposite-party also cited a judgment rendered in Full Bench of this Court in Jupiter Chit Fund Pvt. Ltd. v. Dwarika Dheesli Dayal & Ors. 1979(5) ALR 341 and it has been held by the Full Bench "The words" or other proceeding" in the phrase "cases arising out of the original suits or other proceedings" refer to proceedings of an original nature. Those words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings. This phrase cannot include decisions of appeals or revisions, because then the Legislature will be deemed to have contradicted itself. The words "or other proceedings" have to be ejusdem generis with the words "original suits". They will not include appeals or revisions."

9. In view of this judgment of the Full Bench, if an order has been passed in an appeal or revision, then it is not revisable under section 115, CPC. Moreover the judgment of the Full Bench of this Court - has been affirmed by the Hon'ble Apex Court in MANU/SC/0052/1980 : AIR 1980 SC 892. Under these circumstances, I agree with the arguments that an order passed in an appeal refusing to frame additional issues, revision is not maintainable and the revision is liable to be dismissed.

10. Before parting with this judgment 1 think it proper to commend that the revisionists' Counsel in order to prolong the matter has adopted dilatory tactics and is prolonging this revision after obtaining the stay order. Learned Counsel for the revisionists has equated himself to the status of his client and for his benefit he has gone to the extent of sending illness slips setting up a ground for adjournment of the case. Numerous times this case was adjourned on the illness slip of the learned Counsel for the revisionists. However, the illness slip was opposed by the learned Counsel for the opposite-party, then the Court had to pass the order for not granting further adjournment on this ground and when again adjournment was moved on the ground of illness slip, then the stay was vacated but this practice did not come to an end even after vacating the stay order and today i.e. on 4th August, 2008 also, learned Counsel for the revisionists has sent an illness slip for adjournment which was opposed by the learned Counsel for the opposite-party and, considering the history of sending illness slip for adjournment purposes, this request was turned down. Hence, I think it proper that in the circumstances of the case, this revision is liable to be dismissed with costs.

11. The revision is dismissed. Stay order granted earlier, if any, is vacated and a sum of Rs.5,000/- is awarded as special costs on the revisionists for filing this revision on the false and frivolous grounds and also for seeking adjournment on the flimsy grounds.


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