JAGDISH CHANDER DHAWAN Vs. R S AMAR NATH MEHRA

JUDGEMENT

(1.) The petitioner in both the revision petitions (Civil Revisions No. 476-D of 1963 and 492-D of 1960) was the second defendant in Civil Suit No. 179/200, filed in the Court of the Senior Subordinate Judge, Delhi. It was a suit for dissolution of partnership and rendition of accounts alleging that a partnership-deed had been entered into on 5-9-1949 by the plaintiff (respondent No. 1 in Civil Revision No. 492-D of 1960 and respondent No. 2 in Civil Revision No. 476-D of 1962) with reference to the construction of 100 Miners Quarters at Bhuli Township (Dhanbad), the purpose mentioned in the partnership-deed, and also (as per the plaintiff's allegations and the case of R. S. Amar Nath Mehra, respondent No. I in Civil Revisions No. 476-D of 1962 and respondent No. 2 in Civil Revision No. 492-D of 1960) for the construction of two more items of work mentioned in paragraph 3 of the plaint. While the first defendant supported the plaintiff, the second defendant disputed that the partnership undertook any other work than what was mentioned in the partnership-deed and asked for a decree to be passed in his favour against the plaintiff and the first defendant. Issues were accordingly framed and the suit was posted for trial on 14-6-1960, on which date, the parties took time to compromise the matter. The case was accordingly adjourned, from that date, to 22-7-1960 and later to 23-7-1960 for compromise or for evidence being recorded. It was in these circumstnces that the plaintff filed a compromise petition on 20-7-1960 and the Court which recorded the presence of the first defendant also on that date, allowed the suit to be dismissed as witndrawn, as stated in that petition by the plaintif, without notice being ordered to the second defendant. No costs were awarded to any of the defendants. The second defendant not only filed Civil Revision No. 492-D of 1960, but also filed, on 3-8-1960, an application to review the order allowing the plaintiff to withdraw the suit and dismissing the suit without costs, as withdrawn. It need only be noticed at this stage that the same learned Subordinate Judge, Shri Dalip Singh, who had dismissed the suit as withdrawn, himself ordered notice on the application for review which was subsequently heard by Shri B.K. Agnihotri. Shri Agnihotri allowed the review petition as against which the plaintiff filed an appeal to the Additional District Judge, Delhi, who accepted the appeal and dismissed the application for review. Civil Revision No. 476-D of 1967 is directed against the said appellate order; the said order is attacked as one having been made without jurisdiction on the ground that the appeal itself was not competent. To complete the narrative, it has to be noticed that both the civil revisions came up before his Lordship Mr. Justice Ismail on 24-10-1967 and he allowed Civil Revision No. 492-D of 1960 and dismissed Civil Revision No. 476-D of 1962 as unnecessary. Defendant No. 1 applied for setting aside the said order of Ismail J. and the ground that he had not been served. S.K.Kapur, J. by order dated 1-11-1968 allowed the application of the first defendant and directed a rehearing of both the civil revision petitions. They were accordingly posted before me and the learned counsel for the plaintiff as well as defendant Nos. 1 and 2 were heard.

(2.) The scope of interference by a revision Court is now well settled. It may be on any or all of the grounds mentioned in section 115, Civil Procedure Code, which reads as under:-

(3.) Regarding the first ground postulated by section 115(a), it has since been decided by the Supreme Court in Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd., (1) that if a decision of the trial Court is not on a mere question of law but a decision on a question of law, upon which the jursdiction of the trial Court to grant the relief depends, then the High Court can interfere in revision. In other words, the order in such cases, which involves the jurisdiction of the trial Court, can be interfered with in revision because the trial Court could not, by an erroneous finding upon that question, confer upon itself ajurisdiction which it did not possess. The third ground, namely, under clause (c) of section 115, of interference in revision is where the jurisdiction vested in the Court is exercised illegally or with material irregualrity. It would not require any straining to hold that the trial Court in this case acted with material irregularity in calling the suit on a date to which it did not stand adjourned (it stood adjourned to 23-7-1960, but was called on 20-7-1960) behind the back of the second defendant and allowed the suit to be withdrawn acting merely on the petition given by the plaintiff who had the support of the first defendant who was physically present. To allow this to stand would be to destroy the confidence of the public, in the sense of propriety with which Courts are always attributed. In this case, it has the additional disadvantage of injuring the second defendant's interest. It is well established that in partition and partnership suits, the other sharers, even though described ex nominee as defendants are virtually in the position of plaintiffs. In a partnership action even though the plaintiff asks for accounts to be rendered and prays for a decree in his favour, the defendant also can show that amounts are due to him from the plaintiff and can get decree for such sum as he may be able to prove. This position would be clear from the decision reported in Ram Charon v. Bulapi, (2) If any one of the defendants in such a suit wants to be transposed as a plaintiff on the plaintiff expressing his intention to withdraw his suit, he can apply to the Court to be transposed a plaintiff. By the plaintiff having the suit withdrawn behind the back of the second defendant, he was deprived of the opportunity of making such a request to the Court before he had decided the plantiff's application asking for permission to withdraw the suit. Even in one of the decisions cited by Shri Sawhney, learned counsel for the plaintiff, (Bawa Bir Singh v. Bawa Manaraj Singh, (3) it was observed that no permission to withdraw a suit could be granted to the plaintiff after a defendant had applied to be transposed as plaintiff. Even apart from these considerations, it is obvious that the suit could not have been allowed to have been withdrawn behind the back of the second defendant because, according to Order 23,Rule 1, sub-clause (3), the plaintiff shall be liable for such cost of the suit as the Court may award. It is certainly no answer to the second defendant's grievance to be told that he could have filed an appeal against the non-award of cost to him. In the first place, no appeal lies under Order 43 against an order permitting the plaintiff to withdraw the suit. hi this sense, the second defendant might have faced some difficulty if he wanted to file an appeal in so far as his costs were not awarded. But it was not the mere non-award of costs about which he was really aggrieved because according to him, (whether this is true or false), the truth of his case had to be ascertained only after trial of the suit; he had asked for a decree to be passed in his favour against the plaintiff. He was at least in the position of a co-plaintiff, even though he was described nominallly as a defendant, for he had at least an equal interest along with the plaintiff in the subject-matter of the suit and clause (4) of Order 23, Rule I, prevents the Court from granting permission to one of several plaintiffs to withdraw the suit without the consent of the others. It seems to me that when the court granted permission to withdraw the suit on 20-7-1960 it was not apprised at all of the above aspects and had mechanically granted permission, probably without awareness of the fact that there was another party involved in the case, namely, the second defendant, who, according to this case, had prayed for certain reliefs in his favour, reliefs which could be granted to him in the suit. I do not find it necessary to discuss the position at any greater length because it is so obvious that the Court acted with material irregularity in allowing the suit to be withdrawn and dismissing it without costs.