Citation Codes

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Case Number

Civil Revn. No. 132 of 1979*

Advocates

J.N. Sarma
D.H. Choudhary

Judges

Hon'ble Mr. Justice Banwari Lal Hansaria

Acts

Section 115 by the Code of Civil Procedure (Amendment) Act, 1976.
Section 115 of the Code of Civil Procedure.5.
SECTION 36 MINES ACT 1952
Rule 115(2) of the Civil Rules
Rule 336 of the Civil Rules
Rule 16 of the Civil Rules
Section 115 of the Code.4.
Order 17, Rule 1

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner filed a suit for malicious prosecution. The suit was fixed for hearing on 16-7-79. On that date the plaintiff (petitioner) was present with six witnesses and filed a petition seeking another date to record the evidence of two additional witnesses. The learned trial Court endorsed the petition on its body with the single word “Rejected.” The petitioner then invoked the revisional jurisdiction of this Court challenging that disposal.

Legal Issues Presented

Whether the refusal of an adjournment by a trial Court, by endorsing “Rejected” on the body of the petition without giving reasons, amounted to an illegal or materially irregular exercise of jurisdiction warranting interference by revision under Section 115 of the Code of Civil Procedure.
Whether the Explanation added to Section 115 by the Code of Civil Procedure (Amendment) Act, 1976, widened the scope of the expression “any case which has been decided” so as to make interlocutory orders in the course of a suit revisable as “cases decided.”
Whether reasons must be recorded when an adjournment is refused (and more generally, the extent to which recording reasons is required for interlocutory orders), having regard to Order 17, Rule 1; Rule 16 of the Civil Rules and Orders; Rule 115(2); and Rules 333 and 336 of the Civil Rules and Orders.

Arguments of the Parties

Shri Sarma (for the Petitioner)

Adjournment is a matter of judicial discretion and must be exercised after taking into account relevant materials; the trial Court’s one-word endorsement “rejected” did not amount to a judicial exercise of discretion and was contrary to law.
One absent witness (Tilak Bora) had summons steps taken for service, so the plaintiff was not at fault for his non-appearance; this was a relevant consideration which the trial Court failed to consider.
The defendant’s similar application for adjournment had been granted, so grant of one more opportunity to the plaintiff would not have hindered progress of the suit; refusal without reasons showed unequal treatment and material irregularity.

Shri Choudhary (for the Respondent)

Grant or refusal of an adjournment is a discretionary matter and this Court should not interfere with the trial Court’s discretion, particularly where the plaintiff has shown no cause for absence of the witness.
Order 17, Rule 1 permits adjournment only after sufficient cause is shown; the present petition did not show such cause.
The petition for adjournment was not verified as required by Rule 16 of the Civil Rules and Orders framed by the High Court.
Reasons are required to be recorded when an adjournment is granted (per Rule 115(2) as read by him) and not when it is refused; hence refusal need not carry reasons.
The impugned order could not be treated as a “case decided” so as to attract revisional jurisdiction under Section 115.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497	Held that the expression “case” is not limited to the entirety of the dispute and is of comprehensive import; earlier authority on meaning of “case decided” under Section 115.	The Court treated Khanna’s case as part of the baseline jurisprudence on the meaning of “case decided” and contrasted its holding with the subsequent statutory Explanation to Section 115; Khanna was used to show the earlier judicial interpretation that not every order in suit amounts to a case decided.
Baldevdas v. Filmistan Distributors, AIR 1970 SC 406	Clarified that not every order in the course of a suit amounts to a “case decided” within the meaning of Section 115; a case is decided if the Court adjudicates some right or obligation for the purposes of the suit.	The Court cited this decision to demonstrate the established position prior to the 1976 Amendment and used it in the analytical comparison with the Explanation subsequently added to Section 115.
Chief Inspector of Mines v. K.C. Thapar, AIR 1961 SC 838	Textual and contextual interpretation of words such as “any one” or “any” can, in context, carry meanings akin to “every one”; demonstrates how words may be construed broadly according to statutory purpose.	The petitioner relied on this decision (as illustrative authority) to argue that the word “any” in the Explanation should be read as extending to “every” order; the Court considered this reasoning when evaluating the effect of the Explanation to Section 115.
Veerappa v. State of Mysore, AIR 1965 Mys 227	Support for a broad meaning of the word “any” — indicating wide generality, to be given its widest meaning in context.	The Court noted this Full Bench decision as further support for the petitioner’s contention that “any” in the Explanation could be read widely; it formed part of the textual argument on statutory interpretation the Court grappled with.
Harvinder Kaur v. Godha Ram, AIR 1979 Punj & Har 76	Division Bench view that the Explanation did not broaden the meaning so as to make every interlocutory order revisable; revision lies only if an interlocutory order adjudicates rights or obligations.	The Court acknowledged this contrary view but distinguished it from the petitioner’s submission; the Court noted the decision but accepted the petitioner’s argument (as presently advised) that the Explanation did widen the relevant expression, while also observing that the proviso to Section 115 narrows revisional scope.
Manorama Bai v. Manishankar, AIR 1967 Madh Pra 139	Where a witness could not be served with summons for want of proper address, the Court cannot refuse adjournment unless the incorrect address was shown to have been deliberately given.	The petitioner relied on this case to argue that the trial Court should not have refused adjournment where non-service may not have been deliberate; the Court considered this authority supportive of the obligation to consider relevant facts when refusing adjournment.
Aiantha Transports v. T.V.K. Transports, AIR 1975 SC 123	Illustrates material irregularity in exercise of jurisdiction where relevant considerations are ignored.	The petitioner invoked this decision to argue that ignoring a relevant ground (non-service / absence of witness for non-deliberate reasons) amounts to material irregularity; the Court found the point pertinent in assessing whether the refusal was materially irregular.

Court's Reasoning and Analysis

The Court proceeded in several analytical steps, each grounded in the materials and arguments placed before it:

Interpretation of “case decided” under Section 115: The Court reviewed the Supreme Court precedents (S.S. Khanna and Baldevdas) establishing that not every order in the course of a suit had previously been treated as a “case decided.” It then considered the statutory change introduced by the Explanation to Section 115 by the 1976 Amendment, which explicitly states that the expression includes “any order made, or any order deciding an issue, in course of a suit or other proceeding.”
Effect of the Explanation: The petitioner argued that the Explanation made clear that “any” meant “every,” expanding the scope of “case decided.” The respondent relied on earlier jurisprudence and contended the Amendment did not overturn the earlier principles. The Court observed that the Explanation’s wording is in “sharp contrast” with the earlier meaning applied in Khanna’s case and concluded that the legislature had intended a different approach, though the legislature’s reasons were not discernible from the statute itself.
Consideration of contrary authority: The Court noted a Division Bench decision (Harvinder Kaur v. Godha Ram) that did not accept the view that the Explanation widened the scope of “case decided.” The Court observed that the petitioner's present submissions did go to the extent of saying every order could be revisable under Section 115 whereas the counsel in Harvinder Kaur had not gone that far. The Court accepted the petitioner’s submission that the Explanation made the impugned order a “case decided,” but it also acknowledged that the proviso to Section 115 places restrictions that do not unduly broaden revisional interference.
Other requirements of Section 115 and discretionary nature of adjournments: The Court recognized that grant or refusal of adjournment is discretionary and that errors of discretion are generally not correctable under Section 115. However, the Court drew a distinction between mere error and an illegal or materially irregular exercise of jurisdiction — the latter may attract revisional interference.
Application to the present facts: The Court found several material irregularities: (a) the trial Court recorded no reasons for refusing the adjournment; (b) the petition itself, while not disclosing reasons, might have been supplemented by reasons during argument and the record provides no indication that relevant considerations (such as steps taken to summon Tilak Bora) were considered; (c) the petition of the respondent for an adjournment had been allowed, also without recorded reasons; and (d) the rejection consisted merely of the single-word endorsement “Rejected” on the body of the petition, contrary to the expectations under Rules 333 and 336 that proper entries and reasons be placed on the order sheet.
Duty to record reasons: The Court rejected the respondent’s submission that reasons are required only when adjournments are granted. It interpreted Rule 115(2) as requiring reasons when evidence cannot be taken day to day but emphasized that the requirement to give reasons is not restricted to that situation alone. The Court underscored that giving reasons is a hallmark of judicial orders and that silent or non-speaking orders undermine confidence in the administration of justice.
Conclusion on materiality and remedy: Given the lack of reasons, the appearance of arbitrariness, and the apparent double standard in treatment of similar applications, the Court held that these irregularities were material and affected public confidence. On these peculiar facts the Court concluded that revisional interference was warranted.

Holding and Implications

Holding:

Revision allowed. The Court allowed the petitioner’s revision petition and directed the learned trial Court to give one more opportunity to the petitioner to examine the two witnesses in question.

Implications:

Immediate consequence: The trial Court must permit the petitioner to examine the two absent witnesses (Tilak Bora and the other witness mentioned) by granting one further opportunity.
Procedural admonition: The decision emphasizes that orders refusing or allowing adjournments should be recorded on the order sheet with reasons; perfunctory endorsements such as a single word “Rejected” on the body of a petition are improper and may amount to material irregularity when relevant considerations are ignored.
Scope of revisional jurisdiction: The Court accepted (as presently advised) that the Explanation to Section 115 has altered the interpretation of “case decided,” bringing interlocutory orders more clearly within the ambit of what can be treated as a case decided; however, the Court also noted that the proviso to Section 115 imposes restrictions which limit the scope of revisional interference.

Note: This summary is strictly confined to the matters and conclusions expressed in the provided opinion. No information beyond the opinion text has been added.

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Mangal Chand Chauhan v. Ratan Lal Nahata Opposite Party.

1. The facts giving rise to this revision lie within a narrow compass. A suit for malicious prosecution was filed by the petitioner which came to be fixed, for hearing on 16-7-79. On that day the plaintiff was present with six witnesses and he filed a petition to fix another date to record evidence of two witnesses mentioned in the petition. This prayer was rejected as would appear from the endorsement of the learned trial Court on the body of the petition itself. This has led the plaintiff to invoke the revisional jurisdiction of this Court.

2. Shri Sarma has urged that though a matter relating to granting an adjournment is within the discretion of Court, the same has to be exercised judicially and by taking into consideration all relevant materials. In the present case his submission is that the learned trial Court disposed of the petition for adjournment by one word ‘rejected’ passed on the body of the petition and such a disposal cannot be regarded in accordance with law and it is a fit case where to set at naught the illegal exercise of jurisdiction of the learned trial Court, the impugned order should be quashed. It is urged that for one of the witnesses who was absent namely. Tilak Bora, steps for summoning him had been duly taken and as such the plaintiff was not at fault for his non-appearance. It is brought to my notice that the defendant had also prayed for time to which the learned trial Court had granted and so the progress of the suit would not have suffered by granting at least one further opportunity to the plaintiff.

3. In reply Shri Choudhary has urged that the grant of adjournment being a discretionary matter, no interference by this Court is permissible specially when no cause at all had been shown by the plaintiff for the absence of the witness in question. I am referred to Order 17, Rule 1 which has empowered the Court to grant adjournment after sufficient cause is shown. It is also contended by the learned counsel that the petition in question was not even verified which is so required by Rule 16 of the Civil Rules and Orders framed by the High Court. The further submission is that reasons are required to be recorded only when adjournment is granted and not when it is refused. This is sought to be brought home by referring to Rule 115(2) of the aforesaid Rules. It is lastly urged that the order in question cannot be regarded to be a case decided so as to attract Section 115 of the Code.

4. It would firstly be useful to deal with the last submission of Shri Choudhury. The meaning of the expression “any case which has been decided” appearing in Section 115 had been the subject matter of a number of decisions of the Supreme Court. The leading case on this is that of S.S Khanna v. F.J Dillon, AIR 1964 SC 497 where it was held that the expression ‘case’ is not limited in its import to the entirety of the matter in dispute in an action and it was a word of comprehensive import and includes a civil proceeding. After referring to this decision it was pointed out in Baldevdas v. Filmistan Distributors, AIR 1970 SC 406 that (at p. 410):

“It was not decided in S.S Khanna's case …… 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.”

5. The question is whether these decisions hold after the Explanation has been added to Section 115 by the Code of Civil Procedure (Amendment) Act, 1976. The Explanation reads:

“In this section the expression ‘any’ case which has been decided includes any order made, or any order deciding an issue, in course of a suit or other proceeding.”

6. It is contended by Shri Sarma that the Explanation has now made clear that ‘every order’ made in course of a suit would be a case decided, as the word ‘any’ signified, ‘every’. In support of this contention, Shri Sarma has first referred to Chief Inspector of Mines v. K.C Thapar, AIR 1961 SC 838. One of the questions which had come up for examination therein was related to the word ‘any one of the directors’ used in Section 36 of the Mines Act, 1952. It was stated in para 30 that if one examines the use of the words “any one” in common conversation or literature, there can be no doubt that they are not infrequently used to mean “every one” — not one, but all, as, when we say. ‘any one may enter’ it does not mean that “only one person may enter”, but that all may enter. The definition given in the Oxford English Dictionary was then noted. The contention of Mr. Pathak who had appeared for the respondents that when the phrase “any one” is used with the preposition ‘of’ it never means “every one” was examined. It was ultimately stated that the words “any one of the directors” used in Section 36 was capable of meaning of “every one of the directors” in view of the scheme and object of the Act in question. Reliance was then placed on a Full Bench decision of Mysore High Court in Veerappa v. State of Mysore, AIR 1965 Mys 227, wherein it was observed in para 8:

“The word ‘any’ is a word which excludes limitations or qualifications. It connotes wide generality ……. the word ‘any’ should be given a meaning as wide as possible in the context. Hence in the case before us the words “any ward of the Municipal Borough” should be understood to mean “every ward of the Municipal Borough”.

7. As against this, the submission of Shri Choudhary, the learned counsel for the respondent is that the Explanation has not sought to undo the decisions of the Supreme Court on the expression ‘case decided’ — It rather reinforces the same in as much as the Amending Act cannot be regarded as a validating statute which alone would have expressed the intention of the legislature to override the decisions of the Supreme Court on this point.

8. It is somewhat difficult to agree with Shri Choudhury because what was held in Khanna's case (AIR 1964 SC 497) was that every order of the Court in the course of suit would not be a case decided, whereas the Explanation precisely states that. Thus the meaning assigned to the expression in the Explanation is in sharp contrast with the one held in Khanna's case. This only indicates that the legislature wanted to strike a different note on this aspect for reasons not quite discernible.

9. In this context it would not be proper to shut eyes to a Division Bench decision of Punjab and Haryana High Court in Harvinder Kaur v. Godha Ram, AIR 1979 Punj & Har 76 through which I have come across, wherein the Division Bench has not accepted the argument that the Explanation has widened the scope of the expression “case decided” and has held that revision would lie against an interlocutory order only if it determines or adjudicates some right or obligation of the parties in controversy. This view was taken because the learned counsel appearing for the petitioner in that case had not gone to the extent of saying that every order passed in the course of suit/proceedings would be revisable under Section 115, despite the addition of the Explanation. But that precisely is the submission of Shri Sarma, which, in view of what has been stated I would accept, as presently advised. This would not however widen the scope of revisional interference because of the restrictions imposed by the proviso which has narrowed it.

10. Thus, the impugned order being a case decided, it has to be seen whether other requirements of Section 115 are satisfied or not. Undoubtedly granting of adjournment is a discretionary matter and any error committed while doing so cannot be corrected under Section 115. The contention of Shri Sarma is that the jurisdiction was exercised illegally or with material irregularity inasmuch as considerations which were relevant were unjustifiably ignored and even the order of rejection was not passed by giving reasons incorporating the same in the order sheet. It is submitted by referring to Manorama Bai v. Manishankar, AIR 1967 Madh Pra 139 that where a witness could not be served with summons for want of proper address, the Court cannot refuse adjournment unless the incorrect address was shown to have been deliberately given. In the case at hand there is nothing on record to show, according to Shri Sarma, that non-service of summons on Tilak Bora was due to any deliberate act on the part of the plaintiff, and as such the learned trial Court was bound to bear in mind that the absence of Shri Bora was due to sufficient reasons. But by not applying its mind to this aspect, the relevant ground was unjustifiably ignored, as per Shri Sarma, which would amount to material irregularity in exercise of jurisdiction, as was held in Aiantha Transports v. T.V.K Transports, AIR 1975 SC 123. By referring to Rules 333 and 336 of the Civil Rules and Orders, it is impressed that the order of rejection by endorsing the word ‘rejected’ on the body of the petition was not legal and proper.

11. I have given my due consideration to these aspects of the case and it cannot be denied that some of the questions raised are pertinent. Though a Court has discretion to grant adjournment or not, the same has to be exercised judicially, and what is more it must appear to have been done so. In the present case no reason at all has been recorded for refusing adjournment, because of which it has become difficult to know what had weighed with the learned Court in passing the order in question. No doubt, the petition as filed does not disclose about the reason of absence of the witnesses except stating that they were material, but that by itself should not be regarded as conclusive as sometime reasons which are available on record are advanced during the course of argument also. What has surprised me most is the rejection of the prayer by incorporating the order on the body of the petition itself and that too by one word “Rejected”. This in any case should not have been done and the subordinate judiciary cannot be encouraged to do so. The order sheet of the case has to contain such orders giving reasons as enjoined by Rule 336 of the Civil Rules and Orders. In the present case, the order dated 16-7-79 is absolutely silent about filing of any adjournment petition, not to speak of it containing any reason for rejecting it. Then, though the prayer of the petitioner was rejected, an identical prayer of the opposite party has been allowed, and that too without assigning any reason and about which also the order sheet is silent.

I do not agree with Shri Choudhary that reason has to be recorded only when granting adjournment. This does not follow from Rule 115(2) of the Civil Rules and Orders. That Rule has specifically required recording of reason when evidence cannot be taken from day to day. This does not mean that for other orders reasons may not be recorded. One of the hallmarks of judicial process or of judicial order is the giving of reason. It is too late in the day to contend that judicial orders may not be speaking. Even Rule 115(2) has not been complied within the present case, as no reason has been given for allowing the prayer of opposite party to adjourn the hearing.

12. I have not thought it proper to ignore these irregularities, as they affect the confidence of the people in the process of the administration of justice, and as such has to be regarded as ‘material’. The dent in the cause of justice is apparent, when arbitrariness creeps in or seems to have crept in the seemingly failure of justice has thus to be resorted. The charge of double standard has also to be taken note of and met.

13. On the peculiar facts of this case and in view of all the above, I am of the opinion that the petition should be allowed which I hereby do. The learned trial Court is directed to give one more opportunity to the petitioner to examine the two witnesses in question.

Revision allowed.

Mangal Chand Chauhan v. Ratan Lal Nahata Opposite Party.

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Shri Sarma (for the Petitioner)

Shri Choudhary (for the Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mangal Chand Chauhan v. Ratan Lal Nahata Opposite Party.

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