Case Note & Summary
The High Court of Bombay at Goa dealt with a writ petition arising from a trial court's refusal to take up a long-pending civil suit on board. The dispute concerned Regular Civil Suit No.94/1982/C, in which the trial court had framed an issue of Mundkarship and referred it to the Mamlatdar for adjudication. However, no decision by the Mamlatdar was on record. The trial court, by a roznama order dated 08.09.1989, sent the file to record after notices to parties and advocates returned unserved, observing that there was no reason to keep the file alive. The original plaintiffs, through legal heirs, later filed Civil Misc. Application No.13/2018/C seeking a limited relief: to take up the suit on regular board and fix a date for hearing. The trial court rejected that application by order dated 02.05.2019, prompting the present writ petition. The legal issues before the High Court were whether the trial court erred in refusing to take up the suit on board, whether the 08.09.1989 order amounted to dismissal, and the appropriate scope of an interlocutory application of this nature. The respondent's counsel relied on Clause 530 of the Civil Manual, arguing that only in decided cases files are sent to record, implying that the suit had been dismissed. The petitioners' counsel contended that the 08.09.1989 order did not speak of dismissal, no decree was drawn out, the suit was incorrectly sent to record before decision, and since the issue of Mundkarship was pending, there was no occasion for that order. The High Court observed that the order dated 08.09.1989 was quite ambiguous. It did not expressly dismiss the suit or direct the drawing up of a decree. Consequently, the parties were required to be heard on all issues arising in relation to that order. The court held that at the stage of deciding the present application, the trial judge should not have gone into the issues or made observations. The limited prayer for taking the suit on board and fixing a date for hearing should have been granted. Thereafter, parties could have been heard on all issues, including the implications of the 08.09.1989 order. There was no justification in refusing even the prayer to take up the suit on regular board. Accordingly, the High Court set aside the impugned order dated 02.05.2019. It directed that Regular Civil Suit No.94/1982/C be taken up on regular board with a date fixed for regular hearing. All contentions of all parties, including contentions in the suit, were left open for consideration by the trial court. Parties were directed to appear before the trial court on 30.06.2021 at 10:00 a.m. and file an authenticated copy of the order. The rule was made absolute to that extent, with no order as to costs.
Headnote
A) Civil Procedure - Dismissal of Suit - Ambiguous Roznama Order Sending File to Record - Civil Manual, Clause 530 - The order dated 08.09.1989 did not expressly dismiss the suit or draw a decree; it only sent the file to record, making the status of the suit ambiguous. The court held that parties must be heard on whether the suit stood dismissed and on all related issues arising from that order. (Paras 5-9) B) Civil Procedure - Interlocutory Application - Limited Relief of Taking Suit on Board - Civil Manual, Clause 530 - The application sought only to take up Regular Civil Suit No.94/1982/C on regular board and fix a date for hearing. The trial court should have granted this limited prayer and then heard parties on all issues, including the implications of the 08.09.1989 order, rather than refusing the prayer or making final observations at that stage. The impugned order was set aside and the suit directed to be placed on regular board with all contentions left open. (Paras 10-13)
Issue of Consideration
Whether the trial court erred in refusing to take up Regular Civil Suit No.94/1982/C on regular board on the ground that the suit stood dismissed by the ambiguous order dated 08.09.1989 sending the file to record; whether that order amounted to dismissal of the suit; and the proper scope of an interlocutory application seeking to place a suit on board.
Final Decision
The impugned order dated 02.05.2019 was set aside. Regular Civil Suit No.94/1982/C was directed to be taken up on regular board with a date fixed for regular hearing. All contentions of all parties, including contentions in the suit, were left open for consideration by the trial court. Parties were directed to appear before the trial court on 30.06.2021 at 10:00 a.m. and file an authenticated copy of the order. No order as to costs.
Law Points
- Ambiguous order sending file to record does not amount to dismissal
- trial court must grant limited prayer to take suit on board
- Civil Manual Clause 530 only for decided cases
- parties entitled to hearing on all issues
- trial court should not exceed scope of interlocutory application
