Usha Sharma and Ors. vs Bank of Baroda & Ors.

D.S.Sinha, J.—Heard Sri Yashartha, holding brief of Sri Ajeet Kumar, learned counsel appearing for the defendantrevisionists.

After perusing the impugned order, the amendment application of the defendantrevisionists and objection filed on behalf of the plaintiffopposite party and upon hearing the learned counsel, at length and in detail, the court is satisfied that the court below has, in the facts and circumstances of the case and on the material placed before it, rightly declined to permit the defendantrevisionists to incorporate in the written statement the amendments sought for by them. In declining the amendments sought by the defendantrevisionists, the court below did not act either illegally or with any materials irregularity in exercise of jurisdiction. The order is perfect.

In the impugned order the court below has observed that the amendments sought to be introduced by the defendantrevisionists, besides being irrelevant, are designed to obstruct the progress of the suit deliberately. From the facts stated in the objection filed by the plaintiff opposite party to the amendment application and the conduct of the defendantrevisionists before this court, it is amply borne out that the defendantrevisionists are, indeed, interested only in obstructing the progress of the suit. It would be relevant to notice that instant revision was instituted in this court on 14th May, 1990 and the defendantrevisionists succeeded in persuading the court to grant interim order staying further proceedings in the suit till further orders and the interim order is continuing. While granting interim order, the court had directed the service of the notice of the revision upon the opposite parties to be effected by the applicants personally in addition to service by normal mode. The service was to be effected within fourth weeks and an affidavit of service was required to be filed by 16th July, 1990 and the revision was directed to be listed for admission in the week commencing on 21st August, 1990. The order sheet indicates that the revision was listed on a number of occasions. Even after the lapse of more than four years, the defendantrevisionists have not cared to take requisite steps for serving the opposite parties in compliance of the order of the court dated 14th May, 1990 by any of the two modes indicated by the court, The inevitable inference, therefore, is that the defendantrevisionists are interested only in getting the proceedings of the suit stayed; and that they are guilty of default in due prosecution of the revision. The revision is liable to be dismissed on this court also.

Confronted with above situation, learned counsel for the defendants objects to the consideration of revision for admission on the ground that Ganga Charan Sharma, opposite party No. 4, has died, and before proceeding to hear the revision for admission the heirs and legal representatives of the said deceased opposite party have to be brought on record, learned counsel is unable to disclose as to when the said opposite party died. No application for substitution of the heirs and legal representatives of the deceased opposite party has been made either, Apart from this, Sri Ganga Charan Sharma, the deceased opposite party, has been arrayed in the revision only as a pro forma defendantrespondent. Ie was, indisputably, a codefendant along with the: defenndantrevisionists. All the defendants, as pointed out in the objection filed by the plaintiffopposite party to the amendment application are closely related amongst themselves and are partners of the defendantfirm. Thus, the interest of the heirs and legal representatives of the deceased opposite party in this revision is fully represented and protected by the present defendantrevisionists. Moreover, the deceased defendantopposite party having not challenged the impugned order by joining the codefendantrevisionists in the revision, will be deemed to have acquiesced to the order and his heirs and legal representatives will be bound by his acquiescence. Their absence before this court, is therefore, immaterial.

All told it is not a fit case for interference by this court in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 and deserves to be dismissed.

The revision is, therefore, dismissed with costs to the plaintiff opposite party, quantified at Rs. 1000 and to be paid within two months. The interim order dated 14th May, 1990 is vacated. The court below is directed to proceed with the trial of the suit with utmost, expediency. The Registrar is directed to transmit a copy of this order to the court below within a month.

Revision dismissed.