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2001 DIGILAW 140 (JK)

R. C. Gupta v. Poonam Gandotra

2001-07-16

A.M.MIR

body2001
1. This revision petition has been directed against two orders passed by City Judge Jammu on 19-03-2001 and 27-03-2001. These orders read as under:- 19-03-2001 .. Plaintiff absent. Counsel for the defendant present. Plaintiff has been absent on last date of hearing also. While awaiting the plaintiff list on 27-03-2001. 27-03-2001 .. Plaintiff absent. Counsel for the defendant present. While awaiting the plaintiff list on 31 -03-2001." 2. The petitioner is aggrieved of these orders as the same have omitted to dismiss the suit as required under Order 9 Rule 8 C.P.C. The orders impugned have not decided the case. Strictly speaking these orders may not come with the expression case decided but explanation added to section 115, includes any order made in course of a suit. The question which arises is as to whether this court in exercise of its revisional jurisdiction can find fault with orders which omit to exercise the jurisdiction in a particular way. Section 115 can be invoked in a case where subordinate court has:- a) exercised jurisdiction not vested in it; b) where it fail to exercise jurisdiction vested in it; c) where the courts action is fraught with illegality or irregularity; d) where failure of justice has followed. 3. Here in the present case it can not be said that court has omitted to exercise jurisdiction which vested in it. It did pass an order in a way it deemed proper. In passing the order, no illegality or imprioriety has been committed. Two options left with the court were one of dismissal of the one adopted by the court. 4. The court under Order 9 Rule 8 is not debarred from adjourning the case instead of dismissing it. It will be reading too much in the word shall to hold that courts have no option other than dismissing the suit. I fear such an approach will reduce the courts to handmaids of law of procedure. The Trial Courts know the nature of the litigation, the status of the parties, their demeanour and other relevant circumstances involved in the case. Therefore, these courts should not be held to be helpless before provisions like Order 9 Rule 8. They should be allowed to exercise their discretion in a judicious manner. 5. The Trial Courts know the nature of the litigation, the status of the parties, their demeanour and other relevant circumstances involved in the case. Therefore, these courts should not be held to be helpless before provisions like Order 9 Rule 8. They should be allowed to exercise their discretion in a judicious manner. 5. The beaten track of law relating to discretion is that the court of first instance should normally be allowed to use its discretion in a way it likes. The revisional court should be loath in interfering with such orders. Revisional court can interfere only when the mode of using discretion shocks its judicial conscience. On the analogy of above proposition of law, I do not find any error of law, illegality of imprioriety in the orders impugned. That being so, I find no merit in this petition, which is dismissed, without any order as to costs.