- (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. It was submitted by the defendant petitioners that the revision petition wasfiled on 16. 8. 96 and it was admitted on 9. 9. 96. Notice to plaintiff was issued but he avoided service and on the other hand he pressed for closure of the cross-examination of the plaintiff before the learned trial court. As per principles of justice and equity it was prayed that time should be granted to him instead of closing the opportunity of cross-examination of the plain-tiff. If plaintiff's cross- examination is closed the defendants would be seriously prejudiced in their defence and that would be against the ratio as propounded by the learned Single Judge in the judgment as referred earlier to. In that context the revisional application was filed impugning the order dated 4. 12. 96 whereby the opportunity to cross-examine the plaintiff was closed. Various other grounds wereurged in support of the revisional application which would not be very much material in the present context. When the revisional application was posted for hearing, another learned Single Judge of our court by order dated February 5, 1997 having perused the decision of the learned Single Judge in S. B. Civil Revision Petition No. 558/95, deci-ded on 14. 8. 95 (1) and observed inter alia as follows: "i am unable to persuade myself to agree to the view taken by him that the Civil Courts are duty bound to adjourn the cases whenever they are told that a revision petition was pending in the High Court. It is a settled position of law that mere filing of an appeal or a revision petition is not a ground for staying the execution or operation of the orders which are subject matter of such appeals or revisions. Actually rules and instructions are directly contrary to this. O. 41, R. 5 CPC specifically states that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree. there is no reason why the same principle should not apply to a revision application. It appears that because the case was disposed off without notice to the other side, a Single Bench decision of this Court in Chandra Singh vs. Chhottulal (1994 (1) WLN 31) was not brought to the notice of the court which clearly takes the contrary view and in my opinion the correct view. The following excerpts from that decision are relevant. "such liberal attitude of the trial court is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial court should have closed the defendant's evidence much earlier. It had acted illegally in granting said adjournments to the defendant. " "the learned trial court also granted adjournments to the defendant-petitioner to file revision petition in this court and to bring stay order. It is being noticed that parties interested in delaying the disposal of the cases repeatedly seek and get adjournments on the ground that no order has yet been passed on their revision petitions while they themselves do not get them listed for admission by not removing defects which they intentionally leave in them. On the contrary, parties interested in getting immediate orders of this Court on their urgent applications mention them at the commencement of the day and this court gets them listed and pass orders the same day. The trial court should not have granted adjournments on such a ground. " A Single Bench decision of Gujarat High Court (2) also takes the same view which appears to me to be correct view. Moreover, the theory propounded by my learned brother, that procedural law can be ignored by a Civil Court whenever it feels that justice and equity demandso, would have far dangerous consequences. This would be giving an unlimited license to the Civil Courts to openly flour the Code of Civil Procedure under a specious excuse of catering to the demands of equity and justice. The dictum of my learned brother that "what is just and reasonable should always be treated to be lawful not otherwise" would in the absence of any standard for judging what is"just and reasonable" lead to absurd results which Civil Courts refusing to follow the Code of Procedure and even its mandatory provisions by holding that it is not just and reasonable to follow them under the circumstances. A view similar to that taken by my learned brother was taken by Hon'ble Shri D. A. Desai, J. in Bhagwan Swaroop and others vs. Mool Chand and Others Rel-ying on two earlier decisions Hon'ble Desai, J. observed that laws of procedure are, devised for advancing justice and not impeding the same and a Code of Procedure is designed to facilitate justice and further its ends. It is not a penal enactment for punishment and penalties, not a thing designed to trip people up. He further observed that if the trend is to encourage fair play in action in administrative law itmust all the more in here in judicial approach. It was further observed that such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice. However, the other Hon'ble Judge of the Bench Hon'ble Shri Amarendra Nath Sen, J. did not agree with the aforesaid view. He observed as follows in paragraphs 12 and 13 of the decision as under: "para 12 "it is no doubt true that a Code of Procedure is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up. Procedural laws are no doubt devised and enacted for the purpose of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties in any particular case and justice according to law. If procedure laws are properly observed, as they should be observed, no problem arises for the court for consi- dering whether any lapse in the observance of the procedural law needs to be executed or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the court may and the court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the court passes proper orders which will serve the interests of justice best. " PARA 13 "excuse of lapses in compliance with the laws of procedure, as a matter of course with the avowed object of doing substantial jus- tice to the parties may in many cases lead to miscarriage of justice. "
(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. " The learned Single Judge by order dated February 5, 1997 referred the matter to a Bench of two Judges under proviso (c) to Rule 55 of the Rajasthan Highcourt Rules, 1952 for decision on the following questions of law : " (i) Whether the Civil Courts have to stay their hands as soon as they are told by a party/lawyer that a revision application is pending against an order passed in the case before the High Court when no stay order has been passed by the High Court ? and (ii) Whether the Civil Courts are not bound to follow the Code of Civil Procedure and Civil Court Rules when they feel that it would not be just and reasonable to do so?" In Noorduddin vs. Dr. K. L. Anand (4), it was observed that the object of law is to meet out justice. Right to the right, title or interest of a party in the immo-vable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice which is the highest interest of man and almamater for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The Court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. It was further observed that it should be remembered that Parliament intended to shorten the litigation and to give effect to it, a simplified procedure was devised for adjudication. On the basis of the fact situation and the nature of the controversy, the claim has to be adjudicated expeditiously sometimes, within a time bound frame and Court may even direct hea-ring on day to day basis by putting an end to the tendentious conduct of prolonging the proceedings by suitable orders. ;