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1992 DIGILAW 16 (GAU)

Mango Ice Cream Company v. Dena Bank

1992-01-24

U.L.BHAT

body1992
Defendants in Money Suit No. 38 of 1984 on the file of the Assistant District Judge No. 2, Gauhati are the revision petitioners herein. The suit was filed by the present opposite party, namely, Dena Bank for realisation of money said to have been advanced to the second revision "petitioner, who borrowed the money for the purpose of running a business in the name and style of the first revision petitioner. The suit was resisted on several grounds. The suit came up in due course for trial and ah officer of the Bank was examined on behalf of the Bank and the suit was adjourned for examining defendants' witnesses several times. The suit came up for examining defend­ants' witness on 24.6.85. On that day defendants were absent. Learned counsel for the defendants filed an application praying for adjournment of the suit averring that the second revision petitioner `is attacked with high blood pressure for which, his wife also could not be present in the Court to day." The Court heard the learned counsel for both sides and dismissed the application on the following grounds : ''It appears that several dates were given to the defendant for adducing their evidence. No further date could be given. The prayer of the defen­dant is rejected and accordingly case is fixed on 18.7.85 for argument." This order is now challenged in the revision petition. This Court, it appears, has stayed further proceedings and stay has continued from 30.7.85 till date. 2. Adjournment was sought before the lower Court, according to the learned counsel for the revision petitioner, under Rule 1 of Order 17, Civil Procedure Code, 1908, which says that the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. This provision undoubtedly confers power on the Court to adjourn a suit on any stage if sufficient cause is shown. The Rule is an enabling one, conferring power on the Court to do so. If does not mandate the Court to grant adjournment whenever a cause is alleged. That is always in the discretion of the Court : of course, Court must always exercise its jurisdiction in a judicious way on the basis of sound and established principles of law and not arbitrarily. 3. If does not mandate the Court to grant adjournment whenever a cause is alleged. That is always in the discretion of the Court : of course, Court must always exercise its jurisdiction in a judicious way on the basis of sound and established principles of law and not arbitrarily. 3. Rule 16 of Chapter I of Civil Rules and Orders of the High Court requires that : "All petitions requiring judicial investigation pr determination unless filed with an affidavit in support thereof should be verified in the manner prescribed by Order 6 Rule 15." It has to be noticed that the petition for adjournment which has led to the impugned order is not verified nor supported by an affidavit. The allegation in the petition signed by the Advocate and incidentally, the Advocate did not claim personal knowledge of what was averred in the adjournment petition, is that the petitioner was attacked with high blood pressure and wife also could not be present in Court. Apparently she had to attend to her husband. The application is absolutely vague inasmuch as it does not indicate when the petitioner fell ill, whether he was under treatment and, if so, what was the medical advice he received. The application is also not accompanied by medi­cal certificate or an affidavit of the Doctor who was treating the defendant. 4. Apart from the merits which it is absolutely unnecessary to gone into, I do not think the revision petition is of the kind which should be entertained in this Court. Sub-section (1) of section 115, Civil Procedure Code reads thus : "115. 4. Apart from the merits which it is absolutely unnecessary to gone into, I do not think the revision petition is of the kind which should be entertained in this Court. Sub-section (1) of section 115, Civil Procedure Code reads thus : "115. Revision.- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under the section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made." 5. The power of the High Court to interfere in revision is circumscribed by section 115 of the Civil Procedure Code. The High Court can interfere only where there is what is called "an error of jurisdiction" in the proceedings of the subordinate Court. Rejection of an application for adjournment can, by no stretch of imagination, be understood as involving an error of jurisdiction of the nature contemplated in sub-section (1) of section 115, Civil Procedure Code. The proviso to sub-section (1) of section 115, CPC intro­duces further limitation on the power of the High Court in interfering in revision. Even where there is an error of jurisdiction of the nature contemp­lated in sub-section (I), the Court will not interfere, unless where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the proceedings, or the order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it is made. The proviso indicates the concern of the legislature in deliberately curtailing the power of the High Court in revision. In fact, this proviso has been introduced on the basis of the report of the Law Commission which has elaborately considered and commented on the abuse of the revisional jurisdiction under section 115, CPC. One of the recommendations has been accepted in the form of this proviso. Thus an error of jurisdiction coupled with one of the circumstances mentioned in the proviso alone can enable the High Court to interfere in revision. In these circumstances, I am of the opinion that the revision petition under section 115 CPC cannot be sustained against an order refusing adjournment by the Court. 6. The revision petition is accordingly dismissed. Parties will bear their own costs. The trial Court is directed to expedite the disposal of the suit. Parties will appear before the lower Court on 13.2.1992.