Shyamcharan Das and others vs M/s. New Cloth Stores

Baharul Islam, J.—This application u/s 115 of the CPC is directed against an order dated 8-6-71 passed by the Assistant District Judge No. 1, at Silchar in Money Suit No. 9 of 1969, which was filed by the plaintiff-opposite party for realisation of Rs. 11,219.10 being the price of cloth and for compensation.

The plaintiff''s case, briefly, was that he had a firm registered under the Indian Partnership Act under the name and style of "M/s. New Cloth Stores" at Janiganj bazar, Silchar and the defendant-petitioners had a shop under the name and style of "Janata Bastralaya" at Sonaibazar. The plaintiff''s further case was that defendant No. 1, being the Karta of the Hindu Joint Family, undertook to pay the price of the cloths purchased by defendants, who, on various dates took cloths from the plaintiff''s firm but did not pay the price thereof.

The defendants filed a written statement and contested the suit. Their plea, inter alia, was that they had no shop under the name and style of ''Janata Bastralaya'' and that they had no business transaction with the plaintiff''s firm. Thereafter the suit proceeded and on 3-6-71 one witness was examined by each party and the case was closed and it was fixed for hearing of argument on 16-6-71. The plaintiff, however, on 4-6-71 filed a petition praying for recalling the defendant for further cross-examination on the ground that during his evidence in court he denied that he had any shop under the name and style of ''Janata Bastralaya'', but that the plaintiff came to know after making enquiry in the Textile Office that they did have such a shop.

The learned Assistant District Judge, without giving any reasons, passed an order dated 8-6-71, which is as follows:

"Plaintiff''s petition No. 706/23 and verification seen. Heard learned Advocates of both sides. Recall the defendants and let the documents be produced as prayed for. Fix 15-6-71."

Against this order the present application has been filed.

Mr. M. K. Sarma, learned counsel appearing for the plaintiff-opposite party, raises a preliminary objection. He submits that the Assistant District Judge by the impugned order has not decided any ''case'' within the meaning of Section 115 of the CPC and therefore Section 115 is not applicable. He relies on a decision of the Supreme Court, namely, the case of Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, , in which the Supreme Court in para 10 of the judgment has held:

"It may also be observed that by ordering that a question may properly be put to a witness who was being examined, no case was decided by the trial Court. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S.S. Khanna Vs. Brig. F.J. Dillon, that the expression "case" is a word of comprehensive import: it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceeding in a civil Court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But it was not decided in Major S.S. Khanna Vs. Brig. F.J. Dillon, that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure."

In the instant case by the impugned order the learned Judge has not adjudicated any rights or obligations of the parties for the purpose of the suit, and it has not decided any case within the meaning of Section 115 of the Civil Procedure Code. In my opinion the preliminary objection succeeds and the petition is dismissed. The Rule is discharged. Parties, however, will bear their own costs.