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1978 DIGILAW 396 (ALL)

Ram Niwas v. Beni Ram

1978-04-07

R.R.RASTOGI

body1978
JUDGMENT R.R. Rastogi, J.:- This is defendant's application in revision arising out of a suit filed by the plaintiff-opposite party for ejectment of the defendant applicant from a shop and for recovery of rent and damages. According to the plaintiff-opposite party the disputed shop was constructed in 1965 and hence U P. Act 3 of 1947 and U.P. Act 13 of 1972 were not applicable to it. he defendant-applicant, inter alia, contested the suit on the ground that the disputed shop was a very old shop and was fully covered by the provisions of the aforesaid two Acts. On behalf of the plaintiff opposite party, he gave his own statement and in doss-examination one of the questions put to him was as to whether he maintained regular books of account and to that his answer was in the affirmative. There at an application was given on behalf of the defendant-applicant for directing the plaintiff-opposite party to file his books of account for 1960 to 1966. The books were required to be produced were the rent receipt Bahi and books of his business. On that application, the following order was made on 12.10.1973. "Adjourned to 19.10.1973. Plaintiff to produce Bahi Khatas of the years 1960 to 1966 in which the income of the shops etc. has been recorded. The defendant to pay Rs. 10/- as costs for today's adjournment." 2. The plaintiff-opposite party brought the books as directed and gave the information of the same to the court. Thereupon, an application was given by the defendant-applicant on 16.11.1973 under Order 11 Rules 15 to 18 C.P.C. for permission to inspect those books with a view to find out whether those books were genuine or fictitious and take further steps as required. That application was rejected by the trial court and the reasons given were that the court had never given permission to the defendant to inspect the books and further as required by Order 11 Rules 15 to 18, the other party could have been allowed to inspect the documents only if the party producing them relied on the same in pleadings or affidavits. In the instant case the plaintiff had not relied on the Bahi Khatas and the factum of their existence had come only in cross-examination of the plaintiff. It was also found that the notice had not been given in proper form. 3. In the instant case the plaintiff had not relied on the Bahi Khatas and the factum of their existence had come only in cross-examination of the plaintiff. It was also found that the notice had not been given in proper form. 3. Being aggrieved a revision application was filed by the defendant before District Judge, Etah. That application was decided by IInd Addl. District Judge by order dated 22.9.1974. The learned Addl. District Judge was of the opinion that the impugned order did not amount to a case decided and hence the revision application was not maintainable. He was also of the opinion that it was a discretionary order and the revisional court could not interfere with the exercise of discretion made by the trial court. Since the revision application failed on preliminary point, the learned Addl. District Judge did not discuss the case on merits. It is against this order that the present revision application has been filed. 4. The first submission made before me on behalf of the applicant was that the learned Addl. District Judge erred in holding that the impugned order did not amount to a case decided and hence a revision application against it was not maintainable. Reliance has been placed on a decision : Chhuanilal v. Dhrarmshi, AIR 1969 Gujarat 213 What has been held in that case is that if a material irregularity is committed by the subordinate court as regards some errors of procedure in the course of the trial which is material and may have affected the ultimate decision, that order can be revised." Therefore, the words, "case decided", include an order relating to some error of procedure. It was also observed that the word, "controversy", occurring in Section 115 C.P.C. is used in the general sense and it has got to be given a comprehensive meaning unless there is something to indicate that a narrow and restricted meaning was intended. It was also observed in that case that a mere error of law in the exercise of jurisdiction is not enough. What is necessary is that the subordinate court have acted illegally, i e. in breach of some provision of law or with material irregularity, i e. by committing some error of procedure in the course of trial which is material in that, it may have affected the ultimate decision. What is necessary is that the subordinate court have acted illegally, i e. in breach of some provision of law or with material irregularity, i e. by committing some error of procedure in the course of trial which is material in that, it may have affected the ultimate decision. This is the test which must be applied in order to determine whether the case falls within clause (c) of Section 115 C.P.C. it would appear that what is to be seen is as to whether the courts below acted illegally or with any material irregularity. In the instant case the plaintiff had not relied upon his account books in support of his contention that the disputed shop had been constructed after 1965. 1t was only in cross-examination with him that it was elicited that he maintains books of account. Even then it was not put to him that the cost of construction of the shop in suit had been entered by him in his account books. It cannot be said, therefore, that the non-production of the account books and refusal to the defendant to inspect them can effect the ultimate decision of the case in any manner. The defendant has not been denied his right to produce evidence, primary as also secondary to prove that the shop was a very old one. On behalf of the opposite party the main submission made was that the impugned order did not amount to a case decided and hence the revision was not maintainable. The learned counsel for the applicant contended that section 115 C.P.C. would not apply because it was a revision under section 25 of the provincial small Cause Court Act. I do not think that it would make any difference because in section 25 of the Provincial Small Cause Court Act also the High Court may call for the case and pass such orders with respect there to as it thinks fit for the purpose of satisfying itself that a decree or order made in any case decided by a court of Small Causes was according to law. Now what is a case decided has not been defined anywhere but its import has come to be crystallised by judicial pronouncements. Now what is a case decided has not been defined anywhere but its import has come to be crystallised by judicial pronouncements. In Baldev Das v. Filmistan Distributors, AIR 1970 Supreme Court 406 it was laid down that : "The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import; it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceeding in a civil court. To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But every order of the court in the course of a suit does not amount to a case decided. A case may be said to he 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. By overruling an objection to a question put to a witness and allowing the question to be put, no case is decided." It would thus appear that where the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy, it is a case decided. If this basic test is applied to the facts of the instant case, it cannot be said that the impugned order is a case decided and thus the view taken by the court below that a revision against this order was not maintainable is perfectly correct. It may be noted that in Gokul Chand v. Chunni Lal, AIR 1956 Ajmer 32 it was observed that an order for inspection of account passed under Order 11 Rule 18 C.P.C. does not dispose of the whole case or any part of it. It does not indirectly amount to an order which would have materially affected on the final disposal or decision of the case. 5. It does not indirectly amount to an order which would have materially affected on the final disposal or decision of the case. 5. There is another aspect of the matter and it is, as was stated by the defendant-applicant himself in his application, that the purpose of inspection was to find out if the account books were genuine or fictitious. The genuineness of the account books of the plaintiff was not involved in the instant case and certainly the defendant, applicant could not have been allowed to inspect the books of the plaintiff-opposite party for any such purpose and more so when the plaintiff-opposite party had not relied upon these books in his pleadings or in evidence In this connection it would not be out of place to refer to a decision rendered by a Division Bench of the Madras High Court in Bajya Lakshmi v. Sri Niwas, AIR 1950 Madras 510. It was held in that case that the mere fact that certain documents had been produced and filed in a suit by a party does not give the other side a right to inspect the same as a matter of course when the party producting the same objects to their being inspected before the determination of a particular issue or question. That the documents are relevant for the purposes of the suit is not by itself a sufficient reason for ordering premature inspection. It was further held that a party cannot be compelled to produce any document or to give inspection of the same for the purpose of facilitating cross-examination or for enabling the opposite party to understand the genuineness or purport of the documents relied upon by the party producing them for proving its case. 6. In the instant case, as has been noted above, these documents were not produced by the plaintiff in support of his case. It was the defendant who got them produced and the purpose for which he required the plaintiff to give inspection of the same was to find out as to whether they were genuine or fictitious. The genuineness of these documents was not the subject matter of controversy in this suit and hence the defendant-applicant could not have compelled the plaintiff-opposite party to give inspection of these books. In my opinion, therefore, there is no substance whatsoever in this revision application which is liable to be dismissed. 7. The genuineness of these documents was not the subject matter of controversy in this suit and hence the defendant-applicant could not have compelled the plaintiff-opposite party to give inspection of these books. In my opinion, therefore, there is no substance whatsoever in this revision application which is liable to be dismissed. 7. The revision application is hence dismissed with costs.