Judgment 1. Plaintiff in O.S.No.237 of 1991 on the file of District Munsifs Court, Krishnagiri is the revision petitioner herein. 2. Petitioner herein filed a suit for declaration of title to plaint ‘A’ schedule properties and to restrain defendants from in any manner trespass in, causing damages to the ridges of the suit ‘A’ schedule properties or interfere with the peaceful possession and enjoyment of plaintiff in the suit properties, and to grant permanent prohibitory injunction restraining defendants and their men from in any manner preventing plaintiff or his family members from taking drinking water in the well described in suit ‘B’ schedule property and to award costs. 3. Pending suit, petitioner filed I.A.No.664 of 1996 to appoint a Commissioner directing him to visit the suit property, measure the same and note down the existence of pathways and other physical features pointed out by petitioner and his counsel at the time of visit and file his report with plan drawn to scale and thus render justice. 4. The same was seriously opposed by respondents. 5. Rejecting the contentions of respondents, lower court appointed a Coimbatore. Commissioner also filed his report. Petitioner herein filed his objections to Commissioners report and wanted the report to be scraped and set aside and wanted another Commissioner to be appointed to verify the very same matters as prayed for in the Commission application. 6. By the impugned order lower court directed the very same Commissioner to revisit the property after giving notice to both parties and directed the Commissioner to verify various matters. The said order is challenged in this revision petition. 7. I do not think that I should go into the merits of the case since I feel that the revision itself is not maintainable under Sec.115 of Code of Civil Procedure. 8. O.26, Rule 10 of Code of Civil Procedure read thus, “(1) The Commissioner, after such local inspection as he deems the necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court. 8. O.26, Rule 10 of Code of Civil Procedure read thus, “(1) The Commissioner, after such local inspection as he deems the necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court. Report and depositions to be evidence in suit-(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Commissioner may be examined in person-(3) where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.” 9. In S.S.Khanna v. F.J.Dillon S.S.Khanna v. F.J.Dillon S.S.Khanna v. F.J.Dillon , A.I.R. 1964 S.C. 497 their Lordships held that for invoking the provision under Sec.115 of Code of Civil Procedure, it must be ‘a case decided’. In that case, their Lordships considered what is meant by ‘case’ and ‘case decided’. In paragraph 7 of the judgment, their Lordships said thus: “…The expression” case “ is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a civil court: Balakrishna Udayar v. Vasudeva Aiyar, 33 MLJ. 69:44 I.A. 261: A.I.R. 1917 P.C. 71it includes a proceeding in a civil court in which the jurisdiction of the court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a court which does not finally dispose of the suit or proceedings amounts to a “case which has been decided”, there has arisen a serious conflict of opinion in the High Courts in India and the question has not been directly considered by this Court. On the question whether an order of a court which does not finally dispose of the suit or proceedings amounts to a “case which has been decided”, there has arisen a serious conflict of opinion in the High Courts in India and the question has not been directly considered by this Court. One view which is accepted by a majority of the High Courts is that the expression “case” includes an interlocutory proceedings relating to the rights and obligations of the parties, and the expression record of any case includes so much of the proceeding as relates to the order disposing of the interlocutory proceedings. The High Court has therefore power to rectify an order of a Subordinate Court at any stage of a suit or proceeding even if there be another remedy open to the party aggrieved i.e., by reserving his right to file an appeal against the ultimate decision, and making the illegality in the order a ground of that appeal. The other view is that the expression “case” does not include an issue or a part of a suit or proceeding and therefore the order on an issue or a part of a suit or proceeding is not a “case which has been decided”, and the High Court has no power in exercise of its revisional jurisdiction to correct an error in an interlocutory order.” Thereafter their Lordships took note of the difference of opinion between various High Courts as to the meaning of the words,” case which has been decided. “ In para 11 of the judgment, their Lordships held thus: “(11) The expression “case” is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression “case”, as an entire proceeding only not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.” Their Lordships considered and held that if the order affects the rights and obligations of the parties, revision is maintainable. 10. 10. In Baladevdas v. Filmistan Distributors Baladevdas v. Filmistan Distributors Baladevdas v. Filmistan Distributors, A.I.R. 1970 S.C. 406. in para 10 of the judgment, their Lordships held thus, “10. It may also be observed 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 Major S.S.Khanna v. Brig.F.J.Dillon Major S.S.Khanna v. Brig.F.J.Dillon , (1964)4 S.C.R. 409 : A.I.R. 1964 S.C. 497 that the expression, “case” is a word of comprehensive import; it includes a civil proceeding and is not restricted by anything contained in Sec.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 it was not decided in , (1964)4 S.C.R. 409 : A.I.R. 1964 S.C. 497, that every order of the court in the course of a suit amounts to a case decided. A case may be said to be 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 Sec.115 of the Code of Civil Procedure.” 11. I have already extracted O.26, Rule 10 in the earlier portion of this order. What is the scope of that provision came for consideration before a Division Bench of Kerala High Court reported in Kanaran Nair v. Madavan Nair , (1996)1 K.L.T. 162 . Before the Kerala High Court also the question was whether an order declining to set aside the report of Commissioner is revisable under Sec.115 of Code of Civil Procedure. In paras 5 and 6 of the Judgment, the Division Bench held thus: “5. Reversal of the impugned order in this case would not finally dispose of the suit. Before the Kerala High Court also the question was whether an order declining to set aside the report of Commissioner is revisable under Sec.115 of Code of Civil Procedure. In paras 5 and 6 of the Judgment, the Division Bench held thus: “5. Reversal of the impugned order in this case would not finally dispose of the suit. So the attempt made by the counsel was to show that the order would occasion failure of justice unless it is set aside before the disposal of the suit. it is an uphill task for the petitioner to show how the impugned order would occasion a failure of justice. Even now the court can, in spite of the present nature of the order, at subsequent stages modify or alter it. When the suit reaches final stage the court may perhaps get a better opportunity to decide whether the present report of the Commissioner can be acted upon. There is nothing which inhibits the court from doing so at a later stage. In this context, reference can be made to O.16, Rule 10 of the Code. It show that report of the Commissioner shall be evidence in the suit and shall form part of the record. But the court is empowered to allow the parties to examine the Commissioner touching any of the matters referred to him or mentioned in his report or as to the manner in which he has conducted the investigation. Sub-rule (3) provides that if the court is dissatisfied with the proceedings adopted by the Commissioner the court can direct further enquiry to be made. Power of the court conferred by the sub-rule seems to be very wide by using the words “where court is for any reason dissatisfied” the court can direct further enquiry in such manner as the court “shall think fit”. Utility of the Commission report is that the same can be used as evidence in the case. It is, therefore, subject to all the checks to which any other item of evidence is subject in law. 6. The above discussion leads to the position that there is scope for raising contentions at all the subsequent stages for satisfying the court that the report of the Commissioner cannot be relied on. It is, therefore, subject to all the checks to which any other item of evidence is subject in law. 6. The above discussion leads to the position that there is scope for raising contentions at all the subsequent stages for satisfying the court that the report of the Commissioner cannot be relied on. The impugned order is only interlocutory in nature and nothing contained in it would trammel the trial court from taking a different view if otherwise satisfied at a subsequent stage. Parties are entitled to use other evidence including materials elicited through examination of the Commissioners as a witness for satisfying of the court that findings in the report are faulty. Hence, from any angle the impugned order cannot be treated as having the potency to occasion failure of justice. ” [Italics supplied] 12. The scope of Sec.115 of Code of Civil Procedure was considered in the decision reported in Mytheen Kunju v. Azeez Kunju, (1992)1 K.L.T. 713 which is referred to in the Division Bench decision cited supra. In (1992)1 K.L.T. 713 , their Lordships considered the effect of the amendment to the Code of Civil Procedure under Act 104 of 1976 and whether the scope under Sec.115 of the Code has been enlargede Paras 7 to 13 of the judgment has given detailed reasonings that the amendment has not been enlarged and the scope of revisional powers under Sec.115 of the Code. To exercise the power, the order must be ‘a case decided’. Paragraphs 7 to 13 read thus, “7. The Code underwent a change with effect from 1.2.1977, by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). The amending Act retains the original Sec.115 in tact, except that it is now renumbered as Sub-sec.(1) and adds a proviso to it. The basic limitation in the original section that there must be “case decided”, did not undergo any change. The amending Act added a new Sub-sec.(2). The effect of the proviso to Sub-sec.(1) and the explanation after Sub-sec. (2) need to be examined. It has been urged that the proviso and Explanation have so enlarged the meaning of the expression “case … decided” that any order made in a pending suit or proceeding is “a case … decided”. If this argument is valid, the impugned order, as indeed every order, constitutes a “case which has been decided.” “8. (2) need to be examined. It has been urged that the proviso and Explanation have so enlarged the meaning of the expression “case … decided” that any order made in a pending suit or proceeding is “a case … decided”. If this argument is valid, the impugned order, as indeed every order, constitutes a “case which has been decided.” “8. The effect of the proviso may be considered first. The proviso to Sub-sec.(1) of Sec.115 of the Code, enjoins that the High Court shall not revise an order except where, (a) the order, if made in favour of the petitioner, would have finally disposed off the suit, or (b) the order, if not revised, would cause failure of justice. The proviso introduces a further restriction on the High Courts power of revision and limits it to specified situations. The original words of the section which is now Sub-sec. (1), laid down that the High Court may call for the record of” any case which has been decided“. These words which limit the High Courts power of revision to” any case … decided “ have not been touched by the proviso. These words limit the High Courts revisional power to those cases where the subordinate court” decided“” any case“. The rule of interpretation of provisos, will place the meaning of this proviso in perspective. While Sub-sec.(1) empowers the High Court to revise orders amounting to any” case decided“; the proviso, creates an exception, to the power of revision created by Sub-sec.(1). The power of revision can be used if there is a” case … decided“. When there is a” case …. decided “ the power of revision shall not be exercised unless the” case … decided “ falls within the cases set out in clauses (a) and (b) of the proviso. This is the plain meaning of the proviso. The effect of an excepting proviso is to except it out of the proceedings portion of the enactment or to qualify what is enacted therein which but for the proviso would be within it (Craies on Statute Law - Seventh Edition, page 218) If the proviso were not there, the power of revision would not be subject to clauses (a) and (b). The proviso is but a limitation on the exercise of power enacted by Sub-sec. (1) of Sec.115 of the Code. The proviso is but a limitation on the exercise of power enacted by Sub-sec. (1) of Sec.115 of the Code. It cannot be construed as enlarging the scope of revisional power beyond what is stated in Sub-sec.(1) of Sec.115 of the Code. The proviso applies only if there is” a case decided“. Once there is a case decided, and the High Court proposes to revise the order of the subordinate court, the proviso cautions the High Court that it shall consider whether the situations defined in clauses (a) and (b) exist. If they don’t, the High Court is, by the proviso enjoined not to revise the order. The proviso begins with the order” the High Court shall not… very or reverse any order“, unless the two conditions at (a) and (b) are fulfilled. The proviso does not say that where conditions (a) or (b) exist, the order sought to be revised need not constitute” a case decided “ or that there need not be a” case … decided“. It is erroneously assumed in some judicial decisions that the proviso has so enlarged the meaning of” case … decided “ as to include in the” case … decided “ every order irrespective of whether it decides a right or obligation. If this argument is accepted it means that the proviso has wiped out the main Sub-sec.(1) which it is supposed in qualify. A plain reading of the proviso leaves no doubt, that it qualifies and limits the revision of” case … decided“. It subserves the revisional power of the High Court created by Sub-sec.(1) of Sec.115 and does not operate to neutralise it. 9. The proviso precludes the exercise of power by the High Court referred to in limited cases specified in clauses (a) or (b). The restriction imposed by the proviso on the High Courts power to revise the orders of the Subordinate Court is not an enlargement of meaning of the expression “any case which has been decided. The proviso comes into operation only if the conditions in Sub-sec.(1) of Sec.115 are fulfilled. One of those conditions is that there must be” a case which has been decided“. All that the proviso means is that the - exercise of High Courts power of revision is limited by conditions imposed by clauses (a) and (b) of the proviso. The proviso comes into operation only if the conditions in Sub-sec.(1) of Sec.115 are fulfilled. One of those conditions is that there must be” a case which has been decided“. All that the proviso means is that the - exercise of High Courts power of revision is limited by conditions imposed by clauses (a) and (b) of the proviso. But the power of revision arises only if a case has been decided. This basic condition imposed by Sub-sec.(1) of Sec.115 continues to govern the revisional power. The Allahabad High Court has taken the same view Manohar Lal v. Valalerior (Cannpore) Pvt. Ltd. and another Manohar Lal v. Valalerior (Cannpore) Pvt. Ltd. and another Manohar Lal v. Valalerior (Cannpore) Pvt. Ltd. and another , A.I.R. 1980 All. 327. 10. The construction of the proviso to Sub-sec.(1) of Sec.115 of the Code and the explanation, propounded by me, is entirely consistent with the statement of objects and reasons of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). The proviso to Sub-sec.(1) was enacted with the object of limiting the exercise of revisional power against interlocutory orders. The meaning of” case … decided “ was not intended to be touched. The explanation was added so as to clear the doubt as to whether interlocutory orders are included within” case … decided“. The idea that decision or adjudication of a right or obligation, is not necessary to constitute” case … decided “ was not in the mind of the legislature. 11. The explanation explains that” any case which has been decided “ includes any order made or any order deciding an issue in the course of a suit or other proceeding. The function of an explanation is to make clear or intelligible what is already enacted. Consistently with its function the explanation clarifies that the order sought to be revised need not be an order deciding an issue, may amount to” any case which has been decided. “It does not lay down that every order made in the course of a suit or proceeding or an order deciding an issue need not have the attributes of” a case decided“. “It does not lay down that every order made in the course of a suit or proceeding or an order deciding an issue need not have the attributes of” a case decided“. The characteristics or attributes of” a case … decide “have been stated by the Supreme CourtMajor S.S.Khanna v. Brigadier F.J.Dillion Major S.S.Khanna v. Brigadier F.J.Dillion Major S.S.Khanna v. Brigadier F.J.Dillion , A.I.R. 1964 S.C. 497, Baldevdas Shivlal and another The explanation merely lays down that the orders specified therein shall not be excluded from the” case decided “ merely by reason of their interlocutory character. The explanation does not suggest, even remotely that the meaning of the expression” any case which has been decided “ has been so enlarged as to covered cases which do not decide any right or obligation of a party. This has been made clear by the Supreme Court in Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd. and others Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd. and others Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd. and others, A.I.R. 1970 S.C. 406 where the judgment in S.S.Khanna (Major S.S.Khanna v. Brigadier F.J. Dillion S.S.Khanna (Major S.S.Khanna v. Brigadier F.J. Dillion S.S.Khanna (Major S.S.Khanna v. Brigadier F.J. Dillion , A.I.R. 1964 S.C. 497 was explained. The Supreme Court observed: “But it was not decided inS.S.Khannas case, that every order of the court in the course of a suit amounts to a case decided. A case may be said to be decided if the court adjudicates…. some right or obligation …. every order in the suit cannot be regarded as a case decided within the meaning of Sec.115 of the C.P.C. “ [Italics supplied] The explanation extends the revisional power of the High Court to cases in which only an issue is decided and which do not terminate the suits. The basic requirement that there must be a” case… decided “continues to be an essential component of Sec.115 of the Code.” 12. The basic requirement that there must be a” case… decided “continues to be an essential component of Sec.115 of the Code.” 12. In Harvinder Kaur Kharvinder Karu and another v. Godha Ram and another Harvinder Kaur Kharvinder Karu and another v. Godha Ram and another Harvinder Kaur Kharvinder Karu and another v. Godha Ram and another, A.I.R. 1979 P & H. 76 the Punjab & Haryana High Court and in Manohar Lal v. Valeriof (Cannpore) Pvt. Ltd. and another Manohar Lal v. Valeriof (Cannpore) Pvt. Ltd. and another Manohar Lal v. Valeriof (Cannpore) Pvt. Ltd. and another, A.I.R. 1980 All. 327the Allahabad High Court, held that the explanation to Sec.115 of the Code does not mean that an order sought to be revised need not be “a case decided’. The correct view therefore is that the explanation merely means that the order sought to be revised need not dispose off the whole suit or proceeding. But in any event, it must decide or adjudicate upon a right or obligation and must amount to a” case…… decided“. 13. Havingregard to the analysis made in the foregoing paragraphs I hold that the prerequisite for exercise of the power under S.115 of the Code is that the Subordinate Courts order must constitute” any case which has been decided “ unless it decides any right or obligation of a party to the suit or proceedings. If the order of the Subordinate Court does not constitute” a case… decided: there is no question of exercising revisional power. For reasons stated in paragraphs 8 to 12 above. the proviso to Sub-sec.(1) of Sec.115 of the Code and the explanation do not neutralise or wipe out the fundamental prerequisite that the order sought to be revised must be “a case which has been decided.” The proviso and the explanation operate within the parameters of “case… decided”. The operation of the proviso and the explanation arise only where “any case which has been decided” exists.” 13. Very same view was taken in the subsequent decision reported in Ravindran v. Roja , (1992) K.L.T. 102 in that case, his Lordships said that” admission of a document is evidence or refusal to send a document to a expert for an examination does not decide or adjudicate upon any right or obligation of a party.” 14. Very same view was taken in the subsequent decision reported in Ravindran v. Roja , (1992) K.L.T. 102 in that case, his Lordships said that” admission of a document is evidence or refusal to send a document to a expert for an examination does not decide or adjudicate upon any right or obligation of a party.” 14. In view of these decisions, I do not think that this revision is maintainable under Sec.115 of Code of Civil Procedure. Impugned order is only interlocutory in nature and petitioner is entitled to canvass the correctness or otherwise of the report and is also entitled to adduce evidence to show that the report is not correct. Merely because court has directed to file a supplementary report, it does not follow that on getting supplementary report, the report is to be accepted. After all, Commissioners report is only one piece of evidence in the case and if petitioner is successful enough to produce other evidence impeaching the correctness of the report, court has to decide the same taking into consideration all the evidence. Court is also not prohibited from holding that the report is not satisfactory or liable to be set aside once entire evidence is placed before it. 15. As contended by learned counsel for petitioner even if we assume that the revision is maintainable, the jurisdiction under Sec.115 of Code of Civil Procedure is very much limited. 16. In the recent decision of Honourable Supreme Court reported in Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. , (1999)1 S.C.C. 37 in para 11 of the judgment, their Lordships considered this question and held thus: “….even if such an order passed by the Subordinate Court has any illegality or is affected by material irregularity, the High Court will not interfere unless the said order, if allowed to stand, would occasion a failure of justice or its effect would be infliction of irreparable injury to any party.” 17. Learned counsel for petitioner was not in a position to satisfy the court as to how there is failure of justice or injury so as to warrant interference under Sec.115 of the Code. Learned counsel for petitioner was not in a position to satisfy the court as to how there is failure of justice or injury so as to warrant interference under Sec.115 of the Code. As mentioned in the earlier portion of the order court has asked for further particulars from the Commissioner and under O.26, Rule 10 of the Code of Civil Procedure, court is empowered to make such further enquiry including asking for clarification of the report. When court is asking only some clarification, it is not deciding any issue. It only wants the Commissioner that the report filed by him requires further explanation, before it could be considered for deciding the case, though it may be part of evidence. 18. In the result, I do not find any merit in this revision petition and the revision petition is therefore dismissed. No costs.