M. Puttabasappa and Another vs Smt. Pachiammal and Another

Harinath Tilahari, J

Heard Smt. Geetha Devi M.P. Counsel for the revision Petitioners as well as Shri Gopalaiah for respondents.

This revision petition arises from the order dated 17th Feb 1999, whereby the Civil Judge (Jr. Dn), held the application filed by the revision Petitioners/Plaintiffs u/s 151 of the Code of Civil Procedure, for restoration of the suit dismissed for non-prosecution as being not maintainable.

The facts of the case in nutshell are that on 4.2.1999, the suit was fixed for recording of evidence on that date, at the time when the suit was taken up, the case was dismissed for non-prosecution, as none was present when case was called.

It is said that on that very day at about 4.pm., when the application was made by the Counsel for the Plaintiffs-applicants for restoration of the suit, and for setting aside of the order of dismissal for non-prosecution alleging certain grounds, as mentioned in the application, namely, Plaintiff''s old age and some ailment like Artherities. That the application, it appears was not supported by an affidavit. Memorandum of facts was filed by the Counsel for the Plaintiffs under his own signatures.

The Trial Court dismissed that application, as not maintainable taking the view that, as no affidavit has been filed by the Plaintiff in support of the application, the application as such was not maintainable. It opined that the facts narrated in the memorandum are not in conformity with the order sheet.

Feeling aggrieved from the order of dismissal of application u/s 151, the Plaintiffs have come up in revision. Learned Counsel for Appellant urged that revision is not maintainable as the Order impugned is appealable. That impugned order is one rejecting Petitioners application u/s 151 CPC as being not maintainable for want of affidavit.

That an order passed u/s 151 CPC either allowing or rejecting an application u/s 151 CPC is not maintainable, as has been laid down in the case of Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , in para 15, of which their Lordships observed:

It was not contended and could not seriously be urged that order u/s 151 simpliciter is appealable. Under CPC certain specific orders mentioned u/s 104 and Order 43, Rule 1, only are appealable, and no appeal lies from any other order (vide Section 105 Code of Civil Procedure. Any order made u/s 151 is not included in the category of appealable orders.

In view of this principle, the present Plaintiffs have come up in revision.

The contention tried to be raised on behalf of the respondent, that, order is appealable, so Civil revision u/s 115 CPC does not lie has to be rejected, as being without substance.

That as regard absence of Plaintiff when suit was taken up and called for whether applicants were absent for sufficient cause or not, finding in this question has not been recorded by the trial Court, nor trial Court expressed any opinion on this aspect.

Had the Court taken the view that allegations made in memorandum have not been established by any evidence, the position might have been different. Here, the Trial Court has not recorded any finding, it has only observed that, as the affidavit has not been filed in support of the application, and only memorandum has been filed under signatures of Counsel, the application is not maintainable, so civil revision u/s 115 CPC is maintainable to examine if the trial Court acted illegally as well illegally refused to exercise the jurisdiction vested in it u/s 151 Code of Civil Procedure.

Learned Counsel for the revision Petitioners contended, that, in view of the proviso to Rule 18, contained in Chapter-3 of the Karnataka Civil Rules of Practice, 1967, the affidavit was not filed, as it was viewed, and considered that affidavit was not necessary to be filed and if would be required to or directed to be filed, would be got filed by calling the party as on that day applicant had not come.

Learned Counsel for the respondent, on the other hand, contended that in view of Sub-rule 2 of Rule 18, the affidavit should have been filed along with the application.

Rule 18(2) reads:

All facts on which applicant relies for making prayer for obtaining relief sought in the application shall be set out in an affidavit accompanying the application. Where, however, the facts, on which th application is based, appear from the records of the case in the Court or related to the conduct of applicant''s pleader himself, Court may permit the memorandum of facts signed by the applicant''s pleader to be filed instead of an affidavit.

Provided it shall not be necessary to file any affidavit but only memorandum of facts signed by the pleader in interlocutory applications seeking any relief other than reliefs of temporary injunction, attachment, arrest, appointment of guardian, appointment of receiver or amendment of the pleadings.

No doubt, the proviso has to be read with the provisions of Sub-rule 2 of Rule 18 of Civil Rules of Practice, when Sub-rule 2 of Rule 18 is read keeping in view, the proviso, it appears that in the matter of an application for temporary injunction, attachment, appointment of guardian or appointment of receiver or amendment of pleadings, it is necessary that allegations made in such applications should be supported by affidavit. So far as applications, other than those referred in proviso i.e. application for temporary injunction, appointment of Guardian etc., are concerned, and those in which the allegations of facts of such nature as they appear from the records or allegations of facts of such nature as they appear from the records or allegations of fact relate to the conduct of applicant''s pleader, it is not necessary to file the affidavit in support thereof, instead a memorandum of facts signed by Counsel can be filed and is permissible to be filed.

It is provided that as regards the application, wherein allegations of fact made bear out from record of the case or allegations of fact which relate to the conduct of Counsel, Court may dispense with the filing of affidavit and may permit filing of memo signed by the Counsel himself.

The present application comes within the framework of proviso, and therefore it might have been that affidavit was not filed in view of the proviso. But it does not mean that Court could not direct the party to file affidavit in support of allegation of facts before dealing with the application. Under proviso it may not be necessary, but Court could direct the filing of affidavit in support of the application.

In such cases, the Court should keep in view the interest of justice also, and should not act on the basis of technicality. If the Trial Court was of opinion that those facts, should have been stated on affidavit, on the basis of which setting aside of dismissal for default or dismissal for non-prosecution was sought, the Court in the first instance before dismissing the application as not maintainable should have called upon the applicant and should have given an opportunity to the revision Petitioners to file the affidavit, and if thereafter the applicant would not have filed the affidavit, the Court below should have dismissed the application.

The Court below, appears not to have applied its mind to the proviso, and under the circumstances in which the application was made on the very same day on which the suit had been dismissed for non-prosecution. The Plaintiff had not come, and Counsel so had filed the memorandum. The affidavit of the party if had to be filed, the Court after applying the mind, should have first considered to call upon the party to file affidavit, and then on non-compliance of the order, it could pass the order holding the application to be not maintainable. In my view, the order impugned is based on non-application of the mind by the Court to proviso to Rule 18.

That as such, the order impugned suffers from jurisdictional error u/s 115 CPC and has tendency to cause injustice. Therefore, this Court in exercise of its jurisdiction u/s 115 CPC and set asides the order of the Trial Court dated 17th Feb 1999, with direction to the Trial Court that, even if he thinks necessary that affidavit should have been filed as it was necessary, though it was not necessary to be filed as per proviso but the Court below could and can as well direct the Plaintiff to file the affidavit in support of the application, and after the affidavit in support of application is filed, no doubt the Defendant may be allowed to file objection there to and counter affidavit, and thereafter it may dispose of the application. With these observations the revision is allowed and the above directions are issued to the Trial Court.