Murli Dhar Upadhyaya v. University of Gorakhpur — 1971 DIGILAW 156 (ALL)

ORDER S.N. Katju, J. - This application in revision is directed against the order of the learned Distt. Judge of Gorakhpur dismissing an application u/s 5 of the Limitation Act for condoning the delay in filing an appeal from an order refusing to restore the suit which had been dismissed Under Order Rule 4 of the Code of Civil Procedure. Simultaneously the District Judge rejected the memorandum of appeal before him. 2. The revision before me had arisen out of a suit for permanent injunction restraining opposite parties Nos. 1, 2 and 3 (Defendants in the suit) from allowing opposite party No. 4 to take charge of the office of the Registrar of the University of Gorakhpur and "from paying any emoluments to him". The Plaintiff further prayed that "Defendant No. 4 be further restrained from taking charge and from acting as the Registrar of Defendant No. 1 and from accepting any emoluments from Defendant No. 1". 3. The Applicant Sri Murlidhar Upadhyaya, who is the Plaintiff in the suit in revision, is a lawyer who practises in the district courts of Jaunpur. He had challenged the appointment of opposite party No. 4 (Defendant No. 4 in the suit) in his capacity as a person "interested in seeing the Defendant No. 1 (the University of Gorakhpur) the temple of learning in the backward regions of Gorakhpur of Uttar Pradesh occupy its due place in the academic world and to see that it runs well to serve the cause for which it has come into existence". The suit in revision was instituted on 11-10-66. 4. An application was made by the Defendant-opposite parties for the personal presence of the Plaintiff-Applicant in court. The application was allowed and the court directed the Applicant to present himself in court on 28-2-67. The Applicant was not present in court on 28-2-67 and the case was adjourned to 14-3-67 and again the Applicant was directed to present himself in court on that date. Thereafter the date for hearing was changed from 14-3-67 to 16-3-67. Again the Applicant was not present in court on 16-3-67 and the case was adjourned to 29-3-67. The Plaintiff did not appear in court on 29-3-67 but his counsel made an application to the court for review of the order dated 27-2-67 by which the court had directed the personal presence of the Applicant in court. Again the Applicant was not present in court on 16-3-67 and the case was adjourned to 29-3-67. The Plaintiff did not appear in court on 29-3-67 but his counsel made an application to the court for review of the order dated 27-2-67 by which the court had directed the personal presence of the Applicant in court. The Applicants counsel also moved an application for dispensing with the personal presence of the Plaintiff. The case again came up for hearing on 4-4-67 when the Applicant was not present in court and the trial court dismissed the suit Under Order Rule 4(2) of the Code of Civil Procedure. The Applicant filed an application on 5-4-67 for setting aside the order dated 4-4-67 dismissing the suit and for restoring the suit to its original number. The application was dismissed on 18-12-67. The Applicant filed an appeal on 6-2-68 from the order dated 18-12-67. It was one day beyond time and an application u/s 5 of the Limitation Act was also filed for condoning the delay in filing the appeal. On 24-8-68 the court dismissed the application u/s 5 of the Limitation Act and also rejected the memorandum of appeal. 5. The revision application before me which was filed on 25-11-68 in this Court is directed against the aforesaid order dated 24-8-68. The Applicant also filed an appeal on 3-5-67 against the order dated 4-4-67 by which the suit had been dismissed Under Order Rule 4(2) Code of Civil Procedure. The aforesaid appeal was dismissed by the Distt. Judge on 30-5-70. The Court below dismissed the application u/s 5 of the Limitation Act on the ground that "somebody else on behalf of the Plaintiff is fighting the case and that sufficient cause had not been made out for not filing the appeal within time". 6. It was alleged by the Applicant that the necessary papers for filing the appeal were received by the Applicant's counsel on 5-2-68, but the counsel made a mistake in calculating the period of limitation and filed the appeal on 6-2-68. There is no reason to disbelieve the Applicant's version that his counsel at Gorakhpur made a mistake in calculating the period of limitation. It is well settled that such a mistake by a counsel is sufficient cause for condoning the delay in filing an appeal or a revision. There is no reason to disbelieve the Applicant's version that his counsel at Gorakhpur made a mistake in calculating the period of limitation. It is well settled that such a mistake by a counsel is sufficient cause for condoning the delay in filing an appeal or a revision. The delay was only of one day and it is possible that it was caused by the mistake of the Applicant's counsel. I am therefore of the view that the court below had erred in dismissing the application u/s 5 of the Limitation Act. 7. The trial court dismissed the suit Under Order Rule 4(2) CPC on the ground that the Applicant had not presented himself in court as had been directed by the court. The opposite parties had made an application Under Order Rules 1 and 2 CPC on 27-2-67. It runs thus: In the above noted case it is submitted that 28-2-67 is fixed for framing of issues. The Plaintiff of the suit lives at Jaunpur. It is not certain whether he will be present on that date as he has mostly not been present in court on previous dates of hearing. His presence in court on that date of issues is necessary for inquiries on certain points of dispute. It is therefore prayed that the Hon'ble Court be pleased to order presence of the Plaintiff on 28-2-67. The court passed the following order on the aforesaid application: "Plaintiff to remain present on the date of issues." The relevant provisions of the CPC may be referred to: Order III, Rule 1. Order X, Rules 1, 2, 3 and 4(1), (2). * * * It is clear from the aforesaid provisions of the Code that a party can appear in court either in person or by his recognised agent or by a pleader on his behalf. It is not necessary for a party to appear in person in court unless "where otherwise expressly provided by any law for the time being in force" or when he is directed to appear in person by the court Under Rule 4(1). It is not necessary for a party to appear in person in court unless "where otherwise expressly provided by any law for the time being in force" or when he is directed to appear in person by the court Under Rule 4(1). The direction to a party to appear in court can only be given Under Rule 4(1) "where the pleader or any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer and is likely to be able to answer if interrogated in person". The power of the Court to direct the personal presence of a party is rigidly confined by Rule 4(1) and it can only be exercised when the Court is of the opinion that the pleader or any such person accompanying the pleader as is referred to in Rule 3 is unable to answer any material question that may be put by the court and the personal presence of the party is necessary for answering such questions. Thus it must be shown that the party was required to answer some questions which his pleader or any such person accompanying a pleader as is referred to in Rule 2 was unable to answer and then alone the Court can pass an order directing that a party should appear in person in court on a date fixed by it. There is no provision in the Code besides the provision in Rule 4(1) which can enable a court to order the personal presence of a party who is represented by a counsel. Therefore in the absence of any order showing that a party's presence was required in court to answer questions which his pleader was unable to answer on his behalf, the order passed by the court directing a party to appear in court will be against law and will be in violation of Order X, Rule 4(1). In the present case there is nothing to indicate that the trial court thought it necessary to examine the Applicant in person in court because his counsel was unable to answer any material question relating to the suit. In the present case there is nothing to indicate that the trial court thought it necessary to examine the Applicant in person in court because his counsel was unable to answer any material question relating to the suit. The opposite parties in their application dated 27-2-67 merely said that the presence of the Applicant in court on the date of issues "is necessary for inquiries on certain points of dispute". It is not for a Defendant in a suit to insist on the personal presence in court of a Plaintiff who is represented by his counsel because in his opinion the Plaintiff's presence in court is necessary for inquiring on certain points in dispute. It is only the court which can ask for the personal presence of a party in court on the ground that it is necessary for him to answer certain material questions which his counsel is not in a position to reply. Thus the order of the court dated 27-2-67 on the aforesaid application was clearly illegal. 8. In Abdul Jalil v. Humera Bibi 1909 ALJ 340 a Division Bench of this Court was dealing with the provisions of the CPC of 1882. It was observed: Coming to the merits of the case and regarding the order as one passed u/s 120, we are of opinion that the appeal must succeed. The Appellant appeared by a pleader. Section 120 provides that if the pleader of a party refuses or is unable to answer any material question relating to the suit and if the court is of opinion that the party whom he represents ought to answer and is likely to be able to answer if interrogated in person, in that case the court may order such party to appear in person. Now the order under appeal gives no reason whatsoever to justify the order. It merely says that "it is necessary that the male Defendant should appear in person." We do not think that such an order can be justified. 9. The provisions of Section 120 of the CPC of 1882 are similar to the provisions of Order X, Rule 4(1). In the present case the court merely directed the Applicant to appear in person without giving any reason whatsoever. There was thus no justification for passing the order dated 27-2-67. 9. The provisions of Section 120 of the CPC of 1882 are similar to the provisions of Order X, Rule 4(1). In the present case the court merely directed the Applicant to appear in person without giving any reason whatsoever. There was thus no justification for passing the order dated 27-2-67. A similar view was taken by another Division Bench of this Court in Parmarath Gir v. Krishna Dayal Gir 1933 (2) AWR 137. Dealing with the provisions of Order X, Rule 4(1) CPC it was observed: The power of the court Under Order 10 Rule 4 is not an unlimited one. It is only where the party's pleader or recognised agent refuses or is unable to answer a material question that the court can direct the personal presence of the party himself. The Division Bench further observed: The order of December 6, 1932, requiring the personal presence of the Plaintiff, was not a correct order and that of December 22, 1932, dismissing the suit, was likewise not justified. For the revocation of an erroneous order no sufficient cause other than the irregularity of the order itself need be considered and the court has inherent power to rectify its own errors inadvertently committed. We have no doubt that it was by inadvertence that the learned Subordinate Judge directed the personal appearance of the parties and dismissed the suit. I have no hesitation in holding that the order of the court dated 27-2-67 was unjustified and it was in violation of the provisions of Order X, Rule 4(1). There is nothing in the order of the court below to indicate that the pleader of the Applicant was unable to answer any material question and therefore it was necessary to pass an order for the personal presence of the Applicant in court. 10. It was contended on behalf of the Applicant that I should allow the application for restoration of the suit and also quash the order of the Distt. Judge dated 30-5-70 by which he dismissed the appeal filed by the Applicant against the order dated 4-4-67. Relying on the aforesaid observations of the court in the case of Parmarath Gir (supra) it is contended that the order of the Distt. Judge dated 30-5-70 was erroneous and in the exercise of my inherent power the aforesaid order should be set aside. Relying on the aforesaid observations of the court in the case of Parmarath Gir (supra) it is contended that the order of the Distt. Judge dated 30-5-70 was erroneous and in the exercise of my inherent power the aforesaid order should be set aside. Reliance was also placed on Rati Ram v. Niadar Mal 1911 AWR (HC) 130. In the aforesaid case, Braund, J. observed: ...once the High Court is seized of the revision then, in my view, it becomes its duty to cast its eye not merely on one part of the proceedings but the whole of them. What come under the review of the High Court are the proceedings as a whole from start to finish and the object of the scrutiny of the High Court is that so far as possible justice may be done in the proceedings as a whole. Asthana, J. in Smt. Jaggi v. Bhagwan Das 1969 AWR 834 taking the same view observed: I think the very object of exercise of revisional jurisdiction by this Court is to correct the record. When the record is summoned u/s 115 of the Code of Civil Procedure, by the High Court in exercise of its revisional jurisdiction it becomes its duty to correct the record if it is found to be defective, no matter any party has raised any such ground in revision or not; if in the circumstances of the case it is necessary to do so in the interest of justice. After summoning the record the High Court can pass any order it deems fit." There can be no doubt that since the order dismissing the suit Under Order X, Rule 4(1) was on the face of it illegal, not only the order dismissing the application for restoration was erroneous as also the order dismissing the appeal from that order but also the order of the Distt. Judge dated 30-5-70 by which he dismissed the appeal preferred by the Applicant against the dismissal of the suit Under Order X, Rule 4(1) was contrary to law. Once it is found by me that the order dated 4-4-67 by which the suit was dismissed by the trial court was illegal all the orders which uphold the aforesaid illegal order must be set aside by me in the exercise of my revisional powers. 11. Once it is found by me that the order dated 4-4-67 by which the suit was dismissed by the trial court was illegal all the orders which uphold the aforesaid illegal order must be set aside by me in the exercise of my revisional powers. 11. Learned Counsel for the opposite parties contended that the order dated 30-5-70 by which the Distt. Judge dismissed the appeal against the order dated 4-4-67 operates as res judicata. He contended that the order dated 30-5-70 had become final and a different view cannot be taken by me because of the operation of the principles of res judicata. He referred to the decision of the Supreme Court in Satyadhyan v. Smt. Deorajin Debi AIR 1969 SC 941. It was observed: The principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. In the present case the Applicant chose to challenge the validity of the order dated 4-4-67 in two ways. He made an application for restoration of the suit and he also preferred an appeal against the order of dismissal of the suit dated 4-4-67. It may be mentioned that the revision in this Court which is now before me was filed on 25-11-68. On that date the appeal before the Distt. Judge against the order dated 4-4-67 was pending and had not been decided. The Supreme Court in Satyadhyan's case (supra) has further observed: It will be noticed that in all these three cases, viz. Ram Kripal Shukul's case, Bani Ram's case and Hook's case, the previous decision which was found to be res judicata was part of a decree. Therefore though in form the later proceeding in which the question was sought to be raised again was a continuation of the previous proceeding, it was in substance, an independent subsequent proceeding. The decision of a dispute as regards execution, it is hardly necessary to mention was a decree under the CPC and so in Ram Kirpal's case and Bani Ram's case. Such a decision being a decree really terminated the previous proceedings.... The decision of a dispute as regards execution, it is hardly necessary to mention was a decree under the CPC and so in Ram Kirpal's case and Bani Ram's case. Such a decision being a decree really terminated the previous proceedings.... Interlocutory orders which have the force of a decree must be distinguished from other interlocutory orders which are a step towards the decision of the dispute between parties by way of a decree or a final order. 12. I need not go into the question whether the two means adopted by the Applicant for challenging the order dated 4-4-67 could be called two separate proceedings. But it cannot be held that the order of the Distt. Judge dated 30-5-70 was a final order. The order dated 30-5-70 was passed on appeal from an order. That order of the Distt. Judge could not be challenged in second appeal but it could be assailed in revision. The revision which in substance challenged the order dt. 4-4-67 was already pending in this Court before the Distt. Judge passed his order dated 30-5-70 and it could not be said that order of the Distt. Judge was a final order. It involved the consideration of the validity of the order of dismissal of the suit dated 4-4-67 and this Court was also seized of the same matter in its revisional jurisdiction when the Distt. Judge passed his order dated 30-5-70. The mere fact that the order dated 30-5-70 was not questioned by a separate application in revision in this Court can not take my inherent jurisdiction in the exercise of my revisional powers to quash the order of the Distt. judge. Thus, since the order dated 30-5-70 was not a final order the principles of res judicata cannot be invoked for upholding the order of the Distt. Judge dated 30-5-70 which was erroneous. 13. Learned Counsel for the opposite parties further contended that the present proceedings before me have become infructuous because the order dated 4-4-67 dismissing the suit Under Order X, Rule 4(1) had merged in the appellate order dated 30-5-70 and the later order had not been assailed in revision before me. There is no substance in this contention. 13. Learned Counsel for the opposite parties further contended that the present proceedings before me have become infructuous because the order dated 4-4-67 dismissing the suit Under Order X, Rule 4(1) had merged in the appellate order dated 30-5-70 and the later order had not been assailed in revision before me. There is no substance in this contention. Even if it be assumed that the order dated 4-4-67 had merged in the appellate order dated 30-5-70 even then I can in the exercise of my revisional jurisdiction set aside the order of the Distt. Judge dated 30-5-70. As mentioned above, the revision in this Court was filed on 25-8-67 before the order of the Distt. Judge dated 30-5-70 dismissing the appeal was passed by him. The validity of the order dated 4-4-67 was raised in this Court. The order of the Distt. Judge dated 30-5-70 merely affirmed the order dated 4-4-67. Since I have taken the view that the order dated 4-4-1967 is contrary to the provisions of Order X, Rule 4(1) Code of Civil Procedure, I have ample powers in the exercise of my revisional jurisdiction to correct the error of the Distt. Judge in his order dated 30-5-70. 14. Lastly, it was contended that I should not interfere with the order passed by the court below because in doing so I will be interfering with the inner working of the Gorakhpur University. This Court is very reluctant, as far as possible to interfere in the affairs of statutory bodies such as University. The Applicant in his suit has challenged the validity of the appointment of the Registrar of the University. The suit was instituted on 8-10-66 and it has been admitted on behalf of the Applicant that opposite party No. 4 has been functioning as a Registrar since his appointment which was prior to the date of the institution of the suit. It was further brought to my notice that the Executive Committee of the University has confirmed his appointment and the validity of his appointment was not questioned before any University authority. An interim injunction restraining opposite party No. 4 from functioning as Registrar was passed by the trial court and it was made absolute on 2-2-67. The aforesaid order was vacated after the suit was dismissed on 4-4-67. An interim injunction restraining opposite party No. 4 from functioning as Registrar was passed by the trial court and it was made absolute on 2-2-67. The aforesaid order was vacated after the suit was dismissed on 4-4-67. Thus the opposite party No. 4 has been functioning as the Registrar of the Gorakhpur University without any interference by the court. The suit has been dismissed without any decision on its merits. I have to see whether the restoration of the suit will be more desirable or the dismissal of the revision before me. Since it has been found that the order dated 4-4-67 was clearly erroneous and unjust, the result has been that the Applicant has been deprived of his right to get the adjudication of the suit instituted by him. I do not think under the circumstances of this case any unnecessary interference in the working of the Gorakhpur University will be caused by the mere fact that after the restoration of the suit the proceedings therein are revived and the issues before the court are decided by it. As long as there is no order restraining opposite party No. 4 from functioning as the Registrar there will not be any interference in the inner working of the University. In view of the fact that opposite party No. 4 has been functioning as the Registrar of the Gorakhpur University for more than five years it will not be desirable after the suit is restored to its original number before the trial court, to pass any fresh order of injunction for restraining opposite party No. 4 from functioning as the Registrar of the Gorakhpur University. 15. I set aside the order of the Distt. Judge dated 30-5-67, the orders dated 24-8-68 dismissing the application u/s 5 of the Limitation Act and dismissing the appeal before it and also the order dated 30-5-1970 and allow the application for restoration of the suit and direct that the suit shall be restored to its original number before the trial court and disposed of according to law. The application in revision is allowed. The parties will bear their own costs throughout.