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1981 DIGILAW 396 (RAJ)

Bawandas Birdhichand v. Asulal

1981-09-07

S.K.M.LODHA

body1981
JUDGMENT 1. - This is a defendants revision under section 115 Civil Procedure Code directed against the order dated March 27, 1981 of the Munsif, Banmer, by which, he dismissed the application under Order 11 Rule 1 Civil Procedure Code filed by the defendants. 2. It is not necessary to recount the facts in detail. Suffice it to state that the plaintiff non-petitioner No. 1 instituted a suit for arrears of rent and ejectment against the defendant - petitioners and defendant - non-petitioners No. 2, 3 and 4. The defendants submitted an application for leave to deliver interrogatories to the plaintiffs The learned Munsif declined leave and dismissed the application. It may be stated that in view of the fact that the revision is being dismissed on the ground that it cannot he entertained, I do not consider it necessary to state the reasons which led to the dismissal of the application under Order 11 rule I Civil Procedure Code. It was put to the learned counsel for the petitioner whether the order dismissing the application under Order 11 rule I Civil Procedure Code is a 'case decided' so that a revision is competent against that order - Learned counsel submitted that the approach made by the learned Munsif in dismissing the application under Order 11 rule I Civil Procedure Code was erroneous and because of it, he has dismissed the application and, therefore, the order so passed is revisable under Section 115 Civil Procedure Code. In these circumstances, the question which has to be determined is whether the order decision given by the court refusing to grant leave to deliver/serve interrogatories is a 'case decided' within the meaning of section 115 Civil Procedure Code. What is the import of the expression 'case decided' need not detain me long in view of the authoritative pronouncements of their Lordships of the Supreme Court in S. S. Khanna v. F J. Dillon, AIR 1964 Supreme Court 497, and Baldevdas v. Filmistan Distributors, AIR 1970 Supreme Court 406. 3. Shah, J. as he then was speaking for the Court in Baldevdas's case, made the following weighty observations : "But every order of the court in the course of a suit does not amount to a case decided. 3. Shah, J. as he then was speaking for the Court in Baldevdas's case, made the following weighty observations : "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 be 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 of the Code of Civil Procedure ." (Emphasis added)S.S. Khanna's case (1) was referred to. This leads to a question that when an application under Order 11 Rule 1 Civil Procedure Code is dismissed, can it be said that the Court adjudicates some right or obligation of the parties in controversy. Here I may read the relevant portion of Order 11 Rule 1 Civil Procedure Code : 1. Discovery by interrogatories. In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer : Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : Provided ... The rule contemplates (I) Leave to interrogate and (ii) the deliver/service of interrogatories through the Court. The Court in exercise of the discretion may grant or refuse leave. 4. In my humble opinion, when the court exercises the jurisdiction one way or the other by granting or refusing leave, it cannot be said to adjudicate or decide some right or obligation of the parties in the controversy. In other words, when a court decides an application under Order 11 Rule 1 Civil Procedure Code by granting or refusing leave, such an order does not amount to a 'case decided' and, therefore, revision against an order does not lie under section 115 Civil Procedure Code This view of mine finds support in Hindustan Aeronautics v. P. V. Perumala, AIR 1972 Mysore 253. It was observed therein as follows : "The question therefore that has to be seen is as to whether a decision given by the Court refusing grant of leave to serve interrogatories, it can be said that the court had adjudicated some right or obligation of the parties in controversy. What is being sought under Order 11, rule, I Civil Procedure Code is the leave to deliver interrogatories. When the Court exercises its Judicial discretion in granting or refusing the leave. it cannot be stated to be an adjudication of the parties in controversy." 5. The up shot of the above discussion is that this revision is not competent against the order dated March 27, 1981 of the Munsif, Barmer, by which, he refused to grant leave to deliver interrogatories and dismayed the petitioner's application under Order 11 Rule 1 Civil Procedure Code. 6. As no revision lies against the aforesaid order, it is dismissed summarily.Revision dismissed summarily. *******