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2000 DIGILAW 1011 (PNJ)

Mohinder Singh v. Bhajan Kaur

2000-08-28

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - This is a Civil Revision and has been directed against the order dated 12.6.1999 passed by the Addl. Civil Judge (Senior Division), Nawanshahr, who granted the prayer to the petitioner under Order 6 Rule 17 C.P.C. but declined the prayer under Order 18 Rule 17-A C.P.C. For the purpose of disposal of this revision I will quote the facts of application under Order 18 Rule 17-A C.P.C. 2. The case set up by the petitioner before the trial Court was that there was a specific issue No. 5 to the effect whether Udham Singh deceased executed a valid Will in favour of defendant Mohinder Singh. The defendant pleaded that the scribe of the Will had died and its attesting witnesses namely Mohinder Singh and Bhajan Singh were residing out of India and the examination of one of the attesting witnesses of the Will was legally necessary. Earlier the address of witness Mohinder Singh was not in the knowledge of the applicant-petitioner as said Mohinder Singh had returned to India from abroad. According to the petitioner, the examination of Mohinder Singh, attesting witness of the Will, had become necessary for the just decision of the case and he prayed for allowing of the application. 3. Notice of the application was given to the respondents who contested the application and pleaded that the defendant-petitioner failed to satisfy the ingredients of Order 18 Rule 17-A C.P.C. The case was instituted in the year 1994 and at the stage of rebuttal and arguments the additional evidence cannot be allowed. 4. After considering the rival contentions of the parties, the learned trial Court rejected the prayer of the petitioner under Order 18 Rule 17-A C.P.C. by holding that the suit was instituted in the year 1994 and at the stage of rebuttal and arguments such a permission cannot be granted. Aggrieved by the said order, the present revision by the petitioner. 5. I have heard Mrs. Shashi Ghuman, Advocate, for the petitioner, Mr. A.S. Gill, Advocate, for the respondents and with their assistance have gone through the record of the case. 6. The learned counsel for the respondents has raised a preliminary objection and submitted that the present revision under Section 115 C.P.C. is not legally maintainable. 5. I have heard Mrs. Shashi Ghuman, Advocate, for the petitioner, Mr. A.S. Gill, Advocate, for the respondents and with their assistance have gone through the record of the case. 6. The learned counsel for the respondents has raised a preliminary objection and submitted that the present revision under Section 115 C.P.C. is not legally maintainable. In support of his contention he relied upon Smt. Parmeshwari Devi v. Mohinder Kumar, 1998(3) RCR (Civil) 1, wherein it has been held as under :- "4. It is pertinent to note that the proviso was added to sub-section 1 of Section 115 by the Code of Civil Procedure (Amendment) Act No. 104 of 1976, as it was felt necessary that an overall restriction on the scope of application for revision against interlocutory orders should be imposed. Simultaneously, in such cases, in addition to the pre-existing provision in sub-section (1) of Section 105, provision was made for a right to challenge non-appealable interlocutory orders, whereupon any judgment is pronounced, in an appeal against the decree under the newly added rule 1-A of Order 43 C.P.C. This was done to ensure continuous and expeditious trial and disposal of proceedings in suits by excluding unnecessary interference with interlocutory orders in revision, unless the same resulted in a judgment and decree against the concerned party, and giving to the aggrieved party a right only in an appeal against the decree to contend that such order should not have been made. 5. If at all, the petitioner fails in the suit and ultimately a judgment and decree is passed on the basis of the impugned order, he would be entitled to challenge it in appeal against the decree under Rule 1-A of Order 43 read with Section 105 of the Code of Civil Procedure. Therefore, it cannot be said in the present case that the impugned order, if allowed to stand, would occasion a failure of justice, so as to justify interference with it under Section 115 of the Code of Civil Procedure." 7-8. On the contrary, the learned counsel for the petitioner submitted that his Lordship did not take note of the provisions of sub-section (2) of Section 115, especially the explanation, and therefore, the judgment of the Honble Chief Justice relied upon by the learned counsel for the respondents will not come to his rescue. 9. On the contrary, the learned counsel for the petitioner submitted that his Lordship did not take note of the provisions of sub-section (2) of Section 115, especially the explanation, and therefore, the judgment of the Honble Chief Justice relied upon by the learned counsel for the respondents will not come to his rescue. 9. I find merit in the contention raised by the learned counsel for the petitioner. Section 115 of the Code of Civil Procedure lays down 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 any 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 proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Explanation - In this section, the expression "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." 10. A reading of the above would show that the High Court has the power to examine any case which has been decided by any court subordinate to it and in which no appeal lies thereto and if such subordinate Court appears to have failed to exercise its jurisdiction so vested under the law, the High Court has the power to pass such order in the case as it thinks fit. The explanation added to Section 115(2) shows that the expression "any case which has been decided" includes any order made or any order deciding an issue, in the course of a suit or other proceedings. The rejection of the prayer of the petitioner under Order 18 Rule 17-A C.P.C. is not an interim or interlocutory. It finally takes away the right of the petitioner to prove the Will by leading evidence. It finally seals the fate of the case of the petitioner with regard to the Will. Therefore, the rejection of the application under Order 18 Rule 17-A C.P.C. would amount to decision in a case and, therefore, the revision is always entertainable because the appeal under Order 43 C.P.C. is not maintainable against such rejection of the application. 11. I have the occasion to go through the citation relied upon by the learned counsel for the respondents. It appears to me that the attention of his Lordship was not drawn to sub-section (2) and the explanation added to Section 115 C.P.C. The judgment cited also indicates that no assistance was given to his Lordship from the side of the respondent. Be that as it may, this Court is of the opinion that the revision in this case is legally maintainable when an application under Order 18 Rule 17-A C.P.C. has been rejected by the trial Court. 12. It was then submitted by the learned counsel for the respondents that the petitioner has not been able to make out a case under Order 18 Rule 17-A C.P.C. He could produce this witness at the earlier stage and at the fag end of the trial it is not proper to allow the defendant-petitioner to make such application. This submission raised by the learned counsel for the respondents is also not tenable. The case set up by the petitioner in the trial Court was that Mohinder Singh, the attesting witness of the Will, was abroad and he was not available to him. He came to India and on coming to know that the witness has come, the petitioner made the present application for allowing of the additional evidence. 13. In this view of the matter, I am of the opinion that this revision deserves to be allowed as the learned trial Court has not exercised the jurisdiction in a proper manner which vested in it. 14. 13. In this view of the matter, I am of the opinion that this revision deserves to be allowed as the learned trial Court has not exercised the jurisdiction in a proper manner which vested in it. 14. Resultantly, the present revision is hereby allowed and the application under Order 18 Rule 17-A C.P.C. filed by the defendant-petitioner is hereby allowed subject to payment of Rs. 3,000/- as costs, which shall be conditional. The defendant-petitioner shall bring the witness at his own responsibility and the trial Court will give only two opportunities to the petitioner-defendant to produce Mohinder Singh. The trial Court shall give an opportunity to the respondent-plaintiff to rebut the evidence of the defendant. 15. The parties through their counsel are directed to appear before the trial Court on 12.9.2000, who is further directed to dispose of this case as early as possible but not later then six months from the receipt of the copy of the order. Copy Dasti. Revision allowed.