ORDER
D.V. Shylendra Kumar, J.
1. It is brought to the notice of the Court that the 1st defendant arrayed as 1st respondent in this petition who had remained ex parte had been dispensed with the issuance of notice in this revision.
2. This Civil Revision Petition filed under Section 18 of the Small Causes Courts Act, by the 2nd defendant in the suit is directed against the order and decree dated 22.8.2000 passed by the Court of Small Causes, (SCCH 17) Bangalore in Small Cause Suit No. 3560/ 1998 on its file.
3. The Trial Court in the said suit though decreed the suit as sought for by the plaintiff which had been filed against two defendants namely, one Siddar Murthy arrayed as defendant 1 and the State Bank of Saurashtra arrayed as 2nd defendant, the said suit was decreed only as against the 2nd defendant and dismissed as against the 1st defendant. It is aggrieved by this order and decree in decreeing the suit only as against the 2nd defendant, the 2nd defendant is in revision before this Court.
4. The brief facts leading to the above revision petition are that the 1st defendant was a customer of the plaintiff Bank and it appears he has deposited a cheque for collection with them which was drawn on a foreign Bank. The plaintiff Bank having no direct arrangements with the said foreign Bank had in turn deposited the cheque with the 2nd defendant Bank at its Gokul Branch, Bangalore and the said 2nd defendant in turn had forwarded the cheque for collection and realisation to its Head Office at Bombay. It appears that the process of collection and realisation took time. Further it appears as per the normal Bank practice, the 2nd defendant Bank had credited an equivalent amount of the proceeds of the cheque, even before ihe realisation of the cheque and advice by its Head Office, to the account of the plaintiff Bank who in turn had paid it to the 1st defendant customer.
5. After considerable lapse of time it appears that the Bombay Officer of the 2nd defendant Bank in formed their Branch at Gokul, Bangalore that the cheque had been returned unpaid and as such they reversed entries and debited the 2nd defendant's Bank account with them, who in turn made a debit entry in the plaintiff Bank's account with them.
6. In the meanwhile, as the 1st defendant who was the customer of the plaintiff Bank had drawn the proceeds, and was not traceable by the plaintiff Bank, they in turn could not take steps to recover the amount and was left high and dry. In such circumstances the plaintiff Bank sued the 1st defendant customer and the 2nd defendant Bank for realisation of the amount which had been paid over to the 1st defendant and the 2nd defendant who was also impleaded on the premise that it was due to their delayed process in advising the non-realization of the cheque that the amount had already been paid and could not be recovered by the plaintiff Bank.
7. Suit summons had been issued to the defendants and the 1st defendant remained ex pane. The 2nd defendant Bank who has presented the above revision petition entered appearance through its Counsel and contested the suit claim.
8. However, the learned Small Causes Judge found on merits that the plaintiff is entitled for a decree as prayed for in the suit and accordingly decreed the suit. Strangely enough, the Trial Judge has observed that 'the claim made against the first defendant by the plaintiff cannot be sustained in the light of the aforesaid discussion'. In this view of the matter the suit was decreed only as against the 2nd defendant and it was dismissed as against the 1st defendant. It is aggrieved by this order that the 2nd defendant Bank is before this Court in revisional jurisdiction under Section 18 of the Act. Mr. Chandrasckaran, learned Counsel for the petitioner has drawn the attention of the Court that the observation made by the Trial Judge was uncalled for and actually there is absolutely no discussion as to why the suit cannot be decreed as against the 1st defendant. On the other hand the learned Counsel has brought to the notice of this Court that 1st defendant had remained absent and demonstrated that no evidence has been let in on behalf of the 1st defendant to dismiss the suit claim as against him. In such circumstances dismissal of the suit as against the 1st defendant is certainly not in accordance with the legal provisions and not based on any material or even without any plea for dismissal of the suit as against the 1st defendant is definitely a material irregularity. The submission of the learned Counsel for the petitioner in this context is that not decreeing the suit as against the 1st defendant will result injustice and injury to the petitioner inasmuch as the 1st defendant was the person who is involved in the entire transaction and if at all he only has to satisfy the suit claim. The 1st defendant had not even tendered any evidence to dispute the suit claim. In such circumstances if the suit is decreed only as against the 2nd defendant-petitioner and not a joint decree as against both the defendants, the learned Counsel submits that the possibility of the 2nd defendant-petitioner, who had not made any gain of the amount in dispute, to recover or get reimbursement of the amount from the 1 st defendant who was the person who should have satisfied the suit claim will be foreclosed. The submission of the learned Counsel is that a joint decree was fully justified.
9. The learned Counsel for the petitioner has drawn the attention of the Court to the provisions of Order 8 Rule 10 and submits that when once the 1 st defendant was absent and set out as exparte the Court was under an obligation to pronounce judgment against him even at the stage when the suit was being disposed of and the Court was duty-bound to pronounce judgment as against the 1st defendant also and while so doing the learned trial Judge had proceeded on a wrong premise dismissing the suit on a non-existent ground though there was no such discussion regarding dismissing the suit as against the 1st defendant. The learned trial Judge besides has observed that in the light of my discussion earlier the suit has to be dismissed as against the 1st defendant. It is the submission of the learned Counsel for the petitioner that there is material irregularity in the order passed by the learned trial Judge.
10. Mr. S.N. Keshava Murthy, learned Counsel appearing for the plaintiff-Bank submits that the suit in fact should be decreed jointly and severally as against both the defendants and that the plaintiff Bank has no objection for so decreeing the suit as contemplated in law.
11. Accordingly, this Revision Petition is allowed to the extent modifying the order and decree passed by the Trial Court by ordering that the suit be decreed jointly and severally as against both the defendants in place of the decree of the suit only as against the 2nd defendant.
12. Accordingly, the Revision Petition is allowed for the reasons mentioned above. No costs.