Inder Singh and another vs Amar Singh and others

Bhopinder Singh Dhillon, J.—The order of Sub Judge, First Class, Dasuva dated 9th of May. 1975 is sought to be impugned in this revision petition. The case was admittedly adjourned to many dates of hearing for the evidence of the plaintiffs. On that date the case was again fixed for the evidence of the plaintiffs on the payment of costs. The plaintiffs or their counsel having failed to appear when the case was called, the learned Sub Judge passed an order dismissing the suit for default though he mentioned that he was passing the order under Order 17 Rule 3 of the CPC (hereinafter called the Code) Meja Singh Sandhu, Learned Counsel for the petitioners contends that while exercising the powers under Order 17 rule 3 of the Code, the learned Sub Judge should have disposed of the suit on merits as the statements of two witnesses had already been recorded when the impugned order was passed. The Learned Counsel relies on a Full Bench judgment of the Madhya Pradesh High Court in Rama Rao and others vs. Shantibai AIR 1977 M.P. 22.

After hearing the Learned Counsel for the parties, I am of the opinion that even if the legal contention raised by the leaned counsel for the petitioners is correct that the learned Sub Judge, exercising the powers under Order 17 Rule 3 of the Code, was enjoined upon to dispose of the suit on merits, still the revision petition must fail, because it is clear in the impugned order that the learned Sub Judge was dismissing the suit in default. It is not disputed that he has the power to pass such an order under Order 17 Rule 3 read with Rule 2 of the Code Merely because the learned Sub-Judge omitted to make mention of Rule 2 in the order would not divest him of the jurisdiction which he is vested under Order 17 Rule 3 bread with rule 2 of the Code. It is well settled that wrong mention of a particular provision of law, would not divest the authority of a power which is vested in the authority itself.

For the reasons recorded above, there is not merit in the petition and the same is hereby dismissed with no order at to costs.