- (1.) SHIV Charan Sharma, J. 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, al though the case was adjourned but the stay granted earlier was vacated. There after this case was listed on 11th April, 2008 and 12th May, 2008 and, on both the dates, the case was adjourned on the prayer of learned counsel for the revision ists. 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. Considering the history of this revision regarding adjournment, I 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 accom modate 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 circum stances, 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. 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. G. Act), Lucknow in RCA No. 326 of 2003, Smt. Ganga Deiv. Dan Bahadur and, by the impugned order dated 2nd May, 2006, the appel late Court rejected the applications of the revisionists C-52 and C-53 moved for framing additional issues as provided under Order XLI Rule 25, CPC and further prayer for adjournmentwas also rejected. Learned counsel for the opposite-party argued that in view of the judgment of this Court reported in AIR 1978 All 260, Modi Spinning and Weaving Mills Co. and another v. M/s Ladha Ram and Co. , 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 reported in 1979 (5) ALR 341, Jupiter Chit Fund Pvt. Ltd. v. Dwarka Dheesh Dayal and others, 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 reported in AIR 1980 SC 892, Vishesh Kumarv. Shanti Prasad.
(3.) I have considered the facts and circumstances of the case and submis sions of the learned counsel for the opposite-party. 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 C-52 and C-53 under Order XLI, Rule 25, CPC for framing an issue on Section 41 -of the Specific Relief Act and the appellate Court rejected this application by the impugned order. It has been held by this Court in AIR 1978, All 260 (FB) that "the power to frame additional issues is a discretionary power of the trial Court. Addi tional 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 deter mined by an order refusing to frame additional issues such an order cannot be held 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 dras tically 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.;