Judgment : These revision petitions are directed against the orders of dismissal passed in two applications filed in O.S No.157 of 1987 on the file of the District Munsif, Krishnagiri, for reopening the case and for recalling P.W.4 and examining him. 2. Mr.T.Srinivasa Raghavan, the learned counsel appearing for the revision petitioner, would submit that earlier an application was filed by the revision petitioner for examining the commissioner appointed by court as P.W.4 and that was allowed and since at that time the commissioner was not available for tendering evidence, the revision petitioner could not produce him as a witness and so later on when the commissioner was available for tendering evidence, revision petitioner wanted to examine him to tender further evidence, which would throw light on the case, and so the revision petitioner filed petition for reopening the case and recalling him as a witness but the court below has rejected her claim. The learned counsel would further submit that when the court below itself had allowed the revision petitioner to examine him as a witness and only because of the non -availability of the Commissioner, the petitioner could not examine him and as the petitions was constrained to file another application for recalling him and examining him at a later stage and the lower court is not correct in dismissing the petition, when the very same court below had earlier permitted the petitioner to recalling him and examining him. Per contra, Miss V.Sumathi, the learned counsel appearing for the respondents, would submit that no revision will lie on the orders of the court below dismissing the petitioner for recalling a witness. 3. I have carefully considered the submissions made by learned counsels. The revision petitioner had earlier filed petition for recalling P.W.4 and examining him further. That was allowed by the court below. According to the revision petitioner, since Commissioner was not available for tendering evidence, he could not examine him at that stage and so the revision petitioner later filed petition to reopen the case and to examine him and the court below is not correct in rejecting that petition.
That was allowed by the court below. According to the revision petitioner, since Commissioner was not available for tendering evidence, he could not examine him at that stage and so the revision petitioner later filed petition to reopen the case and to examine him and the court below is not correct in rejecting that petition. When the court below had found it necessary to examine him and permitted recall of this witness at an earlier stage, I am clear that the court below is not correct in rejecting the claim of the revision petitioner to examine him at a later stage, on the ground that on the earlier occasion he was not available for examination. The case is now before the trial court. The evidence which the lower court itself sought would be necessary, cannot be rejected at a later stage because the revision petitioner could not let in that evidence an on earlier occasion when opportunity was given to him. So I am convinced that the orders of the court below are not correct. 4. The next point to be considered is the legal point. Miss V.Sumathi, would submit that this is not an order on which a revision petition can be filed under Sec.115, Civil Procedure Code. For the purpose of convenience, the relevant portion of Sec.115, C.P.C. needs extraction. It reads as follows: "115. Revision: (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears.
For the purpose of convenience, the relevant portion of Sec.115, C.P.C. needs extraction. It reads as follows: "115. Revision: (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears. .(a) to have exercised a jurisdiction not vested in it by law, or .(b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where .(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or .(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. “ [Emphasis supplied. ] In Palia Bewa v. Parbati Kumari, A.I.R. 1986 Ori. 62, an order was passed by the trial Court, allowing an application for recalling the plaintiff who figured as P.W.4 to cross-examine her since her evidence was over by the time defendant 12 was added as a party and who filed a petition for recalling P.W.4. Aggrieved by that order, revision was filed in the High Court under Sec. 15, C.P.C. It was held that an order allowing, recalling of the plaintiff for cross-examination will not be” any case which has been decided “ falling under Sec.115, C.P.C. In this ruling, the learned Judge had referred to the ruling of the Apex Court in Baldevdas Shivlal v. Filmistan Distributors, A.I.R. 1970S.C. 406, in which the Apex Court has laid as follows: ”A case may be said to be decided if the court adjudicates for the purpose 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 Sec.115, C.P.C.“ The facts of the case on which the aforesaid ruling of Orissa High Court was given and the facts of the instant case are totally different.
So that ruling cannot be applied in this case where a party was prevented from recalling a witness to tender evidence; whereas the very same court on an earlier occasion allowed recalling of the same witness for tendering evidence. Furthermore the ratio of the aforesaid dicta of the Apex Court would only go to the help of the revision petitioner herein. Refusal to recall a witness when the very same court had earlier permitted recall of the witness for tendering evidence would certainly amount to adjudication for the purpose of the suit of some right of the party, in controversy. As such the instant case will squarely fall within the purview of the ratio which can be deduced from the aforesaid dicta of the Apex Court. Miss.Sumathi, would rely upon Manohar Lal v. Valerior (Cawnpore) P. Ltd., A.I.R. 1930 All. 327. In it, it was held that an order refusing the request of the applicant to recall a witness for further cross examination is not an order adjudicating upon any right or liability of the parties in controversy. The facts of the case before me are different from the facts of the case in this ruling. Even otherwise, with respect, I am not in agreement with the view expressed by the Allahabad High Court. 5. Miss.Sumathi would further rely upon Central’ Bank of India v. Gokal Chand, A.I.R. 1967 S.C. 799. That is a case arising out of Delhi Rent Control Act. In that case, orders passed on interlocutory application under Secs.36 and 37 of the said Act, came up for further consideration. Those sections relate to summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing of date of hearing and admissibility of a document or the relevancy of a question. It was held that all those interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding and they regulate the procedure only and do not effect any right or liability of the parties. It was further held that the legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders.
It was further held that the legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. That ruling was rendered in a case arising in Delhi Rent Control Act proceedings and different considerations arises while considering Sec.115, C.P.C. 6. Mr.T.Srinivasaraghavan, learned counsel for the revision petitioner would rely upon T.M.Natarajan v. Subbaraya Mudaliar, (1989)1 L. W. 298, in which case, similar question came up for consideration. Considering the various authorities placed before him, Justice Sathiadev has held as follows: ”The reliefs claimed in the two petitions, whether allowed or rejected, results in finding out the truth of the claim made by the defendant, and if evidence in this regard is not allowed to be adduced, the rights of the parties would be greatly prejudiced. As held by the Supreme Court, the Court will have to adjudicate for the purposes of the suit upon the right or obligation of the parties in controversy, and hence the revision petitions filed are maintainable." 7. In view of the above, I am clear that the orders passed by the court below cannot be sustained and liable to be set aside and are set aside and both C.R.P.Nos.588 and 589 of 1993 are allowed. Consequently, both she applications filed in the trial court in G.Nos.448 and 449 in O.S.No.157 of 1987 on the file of District Munsif, Krishnagiri shall stand allowed. Both the learned counsels would . submit that the trial of the suit may be directed to be expedited. The court below is directed to expediate the suit and dispose of it as early as possible preferably within a period of three months from the date of receipt of copy of this order.