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2001 DIGILAW 815 (BOM)

State Bank of India v. Keshav Baburao Dalvi & others

2001-10-04

A.P.DESHPANDE

body2001
JUDGMENT- A.P. DESHPANDE, J.:---This Civil Revision Application has been filed by State Bank of India challenging the order passed by Joint Civil Judge, Senior Division, Buldhana dated 1st August, 1994 whereby, the applicant Bank was directed to amend the plaint and to proceed with the claim in respect of one of the cause of action. 2. The Bank had advanced a loan to the defendant No. 1, non-applicant No. 1. The said advance of loan was under two heads, one cash credit limit of Rs. 10,000/- and another term loan of Rs. 15,000/-. The defendants Nos. 2 and 3 are not the guarantors in the cash credit limit sanctioned by the bank, whereas they are the guarantors insofar as term loan of Rs. 15,000/- is concerned. The Bank chose to file one suit against the defendants. The defendants 2 and 3 were proceeded ex parte and did not file any written statement, whereas the defendant No. 1 filed his written statement and contested the claim of the plaintiff. The defendant No. 1 did not raise any objection touching the misjoinder of cause of action for the obvious reason that so far as liability of the defendant No. 1 is concerned, the same would be there in regard to both the cause of action. 3. The evidence came to be led before the trial Court and the trial Court was called upon to pronounce judgment on various issues that came to be framed. The Court found that the suit was bad for misjoinder of cause of action and as such chose to proceed under Order 2, Rule 6. Order 2, Rule 6, Civil Procedure Code reads thus : “Power of Court to order separate trial.---Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other orders as may be expedient in the interests of justice.” Rule 6 empowers the Court to direct separate trials if in the opinion of the Court the joinder of cause of action in one suit may embarrass or delay the trial or is otherwise inconvenient. The very language used in Rule 6 would point out that if at the outset the Court finds that the trial may embarrass or delay, the trial Court may empowered to pass such order. The very language used in Rule 6 would point out that if at the outset the Court finds that the trial may embarrass or delay, the trial Court may empowered to pass such order. It is not expected of a Court to proceed to try the suit and while passing or delivering the final judgment to pass an order under Rule 6 as has been done in the present case. What is relevant to note is that neither the defendant No. 1 raised a plea of misjoinder of cause of action, nor the defendant Nos. 2 and 3 participated in the proceedings. There is no question of passing an order under Rule 6 while delivering the final judgment. Strangely enough though the trial Court had recorded the evidence of the parties and close the matter for final judgment, it chose not to pronounce judgment on other issues but passed an order purporting to be under Order 2, Rule 6. 4. The learned Counsel appearing for the applicant Bank has invited my attention to the provisions of Order 1, Rule 4 which empowers the Court to pass a judgment against such one or more of the defendants as may be found to be liable according to their respective liabilities. It was very much open for the Court below to have passed an order against the defendant No. 1 in a different sum of amount if and in case the Court comes to a conclusion that the defendant No. 1/ borrower was liable to pay the amounts under both the transactions, so also the Court below could have passed a judgment and decree against the defendants 2 and 3 only to the extent of amount covered by one of the transactions wherein they were guarantors. It was open for the trial Court to pass such judgment and decree as was in his opinion in accordance with law. Instead of adopting the said course the trial Court has passed impugned judgment and order dated 1st August, 1994. What is further relevant to notice is that during the pendency of this revision the further proceedings in the suit are stayed. As the trial was complete and as the case was closed for judgment, there was no propriety for the trial Court to pass an order under Order 2, Rule 6, Civil Procedure Code. What is further relevant to notice is that during the pendency of this revision the further proceedings in the suit are stayed. As the trial was complete and as the case was closed for judgment, there was no propriety for the trial Court to pass an order under Order 2, Rule 6, Civil Procedure Code. In my opinion the judgment and order dated 1st August , 1994 is unsustainable in law and as such the same deserves to be quashed and set aside. In the result Civil Revision Application is allowed. Judgment and order dated 1st August, 1994 passed by Joint Civil Judge, Senior Division, Buldhana in Special Civil Suit No. 200 of 1993 is quashed and set aside. The trial Court is directed to decide the civil suit on merits by answering all the issues expeditiously after hearing the parties. I hope and trust that the suit will be disposed of at an early date. No order as to costs. Civil revision application allowed. -----