Decided on February 23,1952

GURBAMAL Appellant
KIRPAMAL Respondents


Sharma, J. - (1.)THIS is an application by the plaintiff to revise the order of the Judge, Small Causes Court, Jaipur City. The plaintiff brought a suit for the recovery of a certain amount, but on the date of hearing, he was found absent. The suit was, therefore, dismissed for default. On the very day, he made an application for restoration of the suit, but the learned Judge dismissed it on the ground that whereas the plaintiff had stated that he was present in the court when the case was called, the order shows that he was absent. The learned counsel for the applicant contends that the applicant stated in his application as well as in the affidavit that when the case was called, he went away to call his counsel and that there was no rebuttal of this statement. The learned counsel for the opposite party contends that the revision is not maintainable as a fresh suit can be brought under Order 9, rule 4 and the discretionary remedy of revision should not be given where another remedy is open. Rulings reported in Sheikh Baldar vs. Sheikh Imam (A. I. R. 1925 Nagpur P. 31) and Nand Kishore and others vs. Narain Singh and others (A. I. R. 1924 Lahore P. 471) have been relied upon by the learned counsel for the opposite party.
(2.)I have considered the arguments of both the learned counsel and have also gone through the rulings cited by the learned counsel for the opposite party. Both the rulings deal with sec. 115 of the Code of Civil Procedure. The present is a case under sec. 25 of the Code of Small Causes. The powers of revision under sec. 115 of the Code of Civil Procedure are much more limited than the powers conferred by sec. 25 of Small Causes Court Act. Under sec. 25, High Court can interfere in revision on the ground of error of law or fact, resulting in injustice to a party to a litigation. Under sec. 115, an order of the Subordinate Court can be revised only if a question of jurisdiction is involved or there is illegality or material irregularity in the exercise of its jurisdiction by the Subordinate Court. Looking to the record, 1 find that the only thing that the plaintiff has said in his application and affidavit is that he went away to call bis counsel when the case was called. I do not find any statement on the record contrary to this statement in the application and affidavit. The court, has therefore, clearly acted on something which is not on the record. The court ought to have confined its attention to the statement in the affidavit and if it was not satisfied with those allegations, it could have called upon the applicant to corroborate the statement made in the affidavit by other evidence. This was not done. The order of the lower court has, therefore, done injustice to the applicant and I do not think that under the special circumstances of the case, the application for revision should be thrown off on the mere ground that there is another remedy by way of a fresh suit.
The application is allowed, the order of the lower court is set aside and the case is sent back to it for disposal in accordance with law. The costs of this revision shall abide the result of the suit in the lower court after its decision. .

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