Sandip Gupta S/o Late Shri Purushottam Gupta v. Kanhaiya Kamrani S/o Late Iden Das
2016-03-30
CHANDRA BHUSHAN BAJPAI
body2016
DigiLaw.ai
ORDER : Shri Chandra Bhushan Bajpai, J. 1. It is submitted on behalf of the petitioner that looking to the facts, question of law involved, fact that the respondents impleaded as defendants before the Court below were not noticed and the said unregistered civil suit is dismissed at the threshold, the matter may be disposed of finally at the motion stage itself without even issuing notice to the respondents. 2. On due consideration, the matter is heard finally at the motion stage itself without issuing notice to the respondents. 3. Facts in brief required for the adjudication of the instant petition are that the petitioner/plaintiff has filed a civil suit for declaration and injunction against the respondents before the Court below. During hearing, the Court below vide order dated 05.01.2016 directed that the plaintiff is required to pay Court Fee for the valuation of Rs. 90 lakh and thereafter the suit may be registered. Against the said order, the plaintiff/petitioner preferred Writ Petition (227) No. 29/16 before this Court and vide order dated 15.01.2016, this Court granted liberty to the petitioner to file appropriate application to demonstrate before the trial Court for the fixed court fee as required to affix and the Court below is directed to dispose of the said application according to the law afresh without being influenced by the order dated 05.01.2016. Thereafter the plaintiff/petitioner filed an application under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') wherein it is prayed that the suit is properly valued and the matter may be registered for further hearing. The said application was not disposed of as directed by this Court and the Court below dismissed the suit as not maintainable as the same is against the settled provisions of law regarding Negotiable Instruments Act, 1881. Against the said dismissal the petitioner has filed the instant petition. 4. Learned counsel for the petitioner submits that as directed by this Court vide order dated 15.01.2016 in WP. (227) No. 29/16, the Court below has not disposed of the said application filed under Section 151 of the Code and also before passing the order dated 02.3.2016, the Court below has also not heard the plaintiff regarding the maintainability, hence, the order is bad in law and also against the direction passed by this Court, hence, the same may be quashed.
The petitioner may be permitted to submit on maintainability of the said civil suit and also the application under Section 151 of the Code may be disposed of in accordance with law as per the directions of this Court passed in WP(227) No. 29/2016. 5. To appreciate the arguments advanced in this behalf, the impugned order sheet and other documents are perused. 6. As submitted and also on perusal of the order sheet goes to show that the application dated 09.02.2016 filed under Section 151 of the Code is not disposed of in accordance with law as directed by this Court vide order dated 15.01.2016 passed in WP(227) No. 29/16. Also it appears from order dated 02.3.2016 that the plaintiff was not heard before passing of the said order regarding question of maintainability. 7. On perusal of the above goes to show that the trial Court committed grave mistake on the said procedural law and the direction of this Court passed vide order dated 15.01.2016. It was required by the trial Court to follow the direction of this Court regarding disposal of the said application under Section 151 of the Code and also as per the settled natural and procedural law when any question of maintainability is involved, the plaintiff is heard before passing any order. 8. Looking to the illegality and impropriety and violation of judicial discipline, order dated 02.3.2016 is hereby quashed, the Court below is directed to dispose of the application dated 09.02.2016 under Section 151 of the Code after affording opportunity of hearing. It is further directed to the trial Court to hear on the question of maintainability and then to decide the maintainability of the said civil suit in accordance with law. 9. Registrar General is directed to place a copy of this order before the Hon'ble the Chief Justice for taking appropriate administrative action as it deemed fit permitted under the relevant rules against the erring Judicial Officer as he had not complied with the order dated 15.01.2016 passed by this Court. Registrar General is further directed to transmit a copy of this order to the concerned court below with a direction not to commit the said mistake again and direct him to follow the directions of the higher Court in future. The petitioner may file a copy of this Court before the trial Court for compliance.
Registrar General is further directed to transmit a copy of this order to the concerned court below with a direction not to commit the said mistake again and direct him to follow the directions of the higher Court in future. The petitioner may file a copy of this Court before the trial Court for compliance. The petitioner is directed to appear in person or though his counsel before the trial Court on 05.5.2016. The Court below is directed to hear the matter as directed. Registrar (Judl.) is also directed to transmit a copy of this order to the Court below through usual and fax mode immediately for compliance. 10. Petition allowed. No order as to cost. Certified copy as per rules.