FAHIM & CO Versus N. B. P.

ORDER

DORAB PATEL, J.‑This application under section 151 of the Civil Procedure Code raises a short but important point of practice. Letters patent appeals had been filed more than eleven years ago against the judgment of a learned Single Judge on the Original Side of this Court. These appeals were heard more than one year ago, and the Letters Patent Bench decided to allow both parties to amend their pleadings by an order dated 29th March, 1974. On 30th April 1974, the learned Judges of the Division Bench framed two additional issues by consent, and the part of this order, which is relevant, reads as follows

"Mr. Mansoorul Arfin states that he will not produce any evidence at this stage on the first issue but if necessary he will produce evidence in rebuttal. He, however, states that so far this issue is concerned there is material on record and he will rely on it. Mr. Iqbal Kazi states that he will produce evidence on both the issues. Mr. lbadatyar Khan states that he is not affected by the additional issues and therefore he will not produce any evidence.

Case fixed for evidence on 15th May 1974."

We can only take this order to mean that the learned Judges, who had passed it, had decided to record evidence on 15th May 1974 in the exercise of their powers under clause (d) of subsection (1) of section 107 of the Civil Procedure Code. That was also Mr. Arfin's submission, and the case was twice placed for this purpose before a Division Bench, but could not be taken up, as, on each occasion, the Board was discharged.

2. Mr. Iqbal Kazi did not file any appeal against this order of 30th April 1974, nor did he challenge Mr. Arfin's submission that he (Mr. Iqbal Kazi) had brought his witnesses for recording their evidence before the Division Bench. However, after wasting almost one year,. in April 1975, he filed this application that it was appropriate "to remand the case for decision by the original Court after recording evidence." Mr. Afrin vehemently opposes this application on the ground that it has been filed in order to delay proceedings. It is also obvious that the application is barred, because Mr. Iqbal Kazi has allowed the order of 30th April 1974 to become final. It must therefore, be dismissed, but. as it raises an important point of practice, we would examine Mr. Iqbal Kazi's submissions.

3. At the outset, we have to observe that the order of 30th April 1974 was in .accordance with the long established practice of the Court and is also in consonance with the observations of the Judicial Committee in Shankarlal Patwari v. Hiralal Mu arka and others (AIR 1950 P C 80). However, according to Mr. Iqbal Kazi, the practice of this Court was wrong, and he relied on an authority of the Supreme Court and on two judgments, which we will now consider. But before doing so, we would point out that the application before us is under section 151, and not under Order XLI, C. P. C.