Nari Shiksha Vidhayini Sabha, Varanasi v. Bandana Rasak
1987-04-28
B.N.SAPRU
body1987
DigiLaw.ai
JUDGMENT B.N. Sapru, J. - This is a tenants revision under Section 25 of the Provincial Small Cause Courts Act and is directed against an order of the Trial Court permitting the plaintiff to lead further evidence in rebuttal of the evidence given by the tenants. 2. In a suit for ejectment, the landlord pleaded that a notice of demand which had been sent by registered post, had been served by refusal on the part of the tenants. The tenants averred that no such notice was served on them. The plaintiff produced only one witness. Thereafter the defendants led evidence to show that on the date on which the notice was alleged to have been served, the addressee was elsewhere. The case was then listed for arguments. Before the arguments could be heard, the plaintiff made an application for permission to summon the overseer of the post offices to produce evidence obviously in rebuttal of the tenants' evidence about the service of the notice. Presumably, the evidence that being led, was to show the fact of the refusal of a registered letter by production of a witness which had not been done earlier. The application of the plaintiff was allowed by the Court on the ground that the plaintiff was justified in asking for an opportunity to lead evidence in rebuttal of the tenants' evidence. 3. This revision is directed against this order. 4. Sri C.C. Bhattacharya appearing on behalf of the tenants has urged that-by the impugned order the plaintiff' landlord has been given an opportunity to fill up the lacuna in her evidence. He submits that where the service is alleged to have been effected by the refusal of a registered letter, the endorsement of refusal on the letter raised a presumption of service which stands rebutted if the addressed states that the letter was not delivered or produced other evidence. He submits that the tenants having led such evidence, the plaintiffs now being given an opportunity to fill up the lacuna which should not be given. 5. Sri A.C. Tripathi appearing on behalf of the plaintiff respondent has raised a preliminary objection to the effect that no revision lay against the order, as there was no case decided within the meaning of Section 25, Provincial Small Cause Courts Act. 6.
5. Sri A.C. Tripathi appearing on behalf of the plaintiff respondent has raised a preliminary objection to the effect that no revision lay against the order, as there was no case decided within the meaning of Section 25, Provincial Small Cause Courts Act. 6. A number of cases have been cited by the learned Counsel for the parties on the merits of the preliminary objections. I shall deal with more important of those cases. 7. Sri. C.C. Bhattacharya has laid special stress on a decision of the Supreme Court in the case of Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 . In this case, the Supreme Court has decided that the expression "any case which has been decided" in Section 115, C.P.C., confers power to a High Court to decide a revision against both the final and interlocutory orders. 8. In the case before the Supreme Court, a suit had been filed for recovery of money. The court has held that the suit was not maintainable, though the suit itself was not disposed of. The Supreme Court found that the decision was manifestly a decision bearing on the rights of the plaintiff to a decree for recovery money which was advanced as a loan by him. It was held that even though there was no final decree, the order in question amount to a 'case decided'. This case is an authority for the proposition that even though a case is not finally disposed of by an order, there may be a 'case decided' by an interlocutory order. 9. Sri A.C. Tripathi, in support of his preliminary objection, has referred to a decision of the Supreme Court in the case of Baldevdas Shivlal and anothers v. Filmistan Distributions (India) Pvt. and others, AIR 1970 SC 406 where the decision in Major S.S. Khanna's case (supra) was referred to and was explained by the Supreme Court itself. The question before the Supreme Court was whether a revision lay against an order of the Trial Court permitting a question to be put to a witness which had been objected to. The Supreme Court held that a revision did not lie.
The question before the Supreme Court was whether a revision lay against an order of the Trial Court permitting a question to be put to a witness which had been objected to. The Supreme Court held that a revision did not lie. The Supreme Court went on to observe in Paragraph 10 of the judgment as under : "It may also be observed that by ordering that by ordering that a question may properly be put to a witness who was being examined, no case was decided by the Trial Court. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S.S. Khanna v. Brig. F.J. Dillon, (1964) SCR 409 : AIR 1964 SC 497 that 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 imposes an unwarranted restriction an 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 any result in the perpetration of gross injustice. But it was not decided in Major, S.S. Khanna's case, (1964)4 SCR 409 : AIR 1964 SC 497 (supra) that every order of the Court in the course of a suit amount to a case decided. A case may be said to be decided, it 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." The crucial words in this paragraph are - "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." 10. In the instant case, by permitting the plaintiff landlord to lead evidence in rebuttal the Court has not adjudicated upon some right or obligation of the parties to the controversy.
In the instant case, by permitting the plaintiff landlord to lead evidence in rebuttal the Court has not adjudicated upon some right or obligation of the parties to the controversy. The adjudication is yet to follow after the examination of the witness. 11. In this view of the matter, I find that no revision lies in the instant case. 12. I may add that have not adjudicated on the correctness or propriety of the order allowing the plaintiff to lead evidence in rebuttal. This question can be raised subsequently. 13. In that result, the revision fails and is dismissed, but I make no order as to costs.