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2000 DIGILAW 170 (HP)

KUNJI DEVI v. CHAMAN LAL

2000-07-11

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J. (Oral) - This revision is directed against the order dated 25.11.1999 passed by the learned Sub Judge, I-class, Amb in Civil Suit No. 75 of 1995 whereby the application moved by the petitioners/plaintiffs (here-after referred to as the "plaintiffs") under Order 18 Rule 17 of the Civil Procedure Code has been dismissed. 2. At the very outset of the arguments it has been pointed out by the learned counsel for the respondents/defendants (here-after referred to as the "defendants") that the application though labelled as under Order 18 Rule 17 of the Civil Procedure Code, is not for re-calling a witness and, thus, the provisions of law under which the application has been filed has been wrongly mentioned and as per the contents of the application it ought to have been filed under Order 18 Rule 17-A of the Civil Procedure Code since the relief prayed for could be granted only under Order 18 Rule 17-A of the Civil Procedure Code which has been disallowed by the impugned order and no revision lies against such order. 3. I have heard the learned counsel for the parties on the aforesaid preliminary objection about the maintainability of the present petition and have also perused the relevant material placed on record. 4. There cannot be any dispute that the application in question which purports to be under Order 18 Rule 17 of the Civil Procedure Code, in fact, is not an application for re-calling any witness. In fact, by this application the plaintiffs prayed for leading additional evidence and such a prayed for leading additional evidence and such a prayer could be considered by the Court below within the framework of Order 18 Rule 17-A of the Civil Procedure Code. The application, however, has been dismissed. The question, therefore, is whether such a dismissal can be called in question in a revision under Section 115 of the Civil Procedure Code? 5. Section 115 of the Code of Civil Procedure reads as follows: "115. The application, however, has been dismissed. The question, therefore, is whether such a dismissal can be called in question in a revision under Section 115 of the Civil Procedure Code? 5. Section 115 of the Code of Civil Procedure 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 bad been node in favour of die party applying for revision, would be 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 other 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." 6. 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." 6. As is evident from a plain reading of the aforesaid provisions, the limited jurisdiction of the High Court as under clauses (a), (b) and (c) of sub-section (1) is further limited by the provisions as contained in clauses (a) and (b) of the proviso to sub-section (1) inasmuch as even if the case falls under clause (a) or (b) or (c) of sub-section (1), the High Court shall not in exercise of its revisional powers very or reverse any order made or any order deciding an issue in the course of a suit or other proceeding unless the order in question is (i) one which if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding or (ii) one, which if allowed to stand would occasion a failure of justice or cause irreparate injury to the party against whom it has been made. The use of words "shall not" in the proviso clearly indicate that the proviso is mandatory and is evidently intended to minimize the revisional litigation by restricting the powers of the High Court. The effect of the proviso, thus, is that the order impugned in the revision must not only suffer from jurisdictional error but must further be of the category falling under either clause (a) or clause (b) of the proviso. 7. In view of the above position in law, the impugned order disallowing the application of the plaintiffs, in my view, is not an order which falls within the scope of revisional jurisdiction of the High Court as it does not finally dispose of the suit or the proceeding nor would cause a failure of justice or irreparable injury to the plaintiffs inasmuch as it is open to the plaintiffs in the event of their suit being dismissed to challenge the impugned dismissal of this application in appeal. 8. While dealing with a similar situation wherein an application for leading additional evidence under Order 18 Rule 17-A of the Civil Procedure Code was dismissed, the Punjab and Haryana High Court in case Smt. Parmeshwari Devi & Ors. v. Mohinder Kumar & Ors., 1998(2) PLJ 406, held as follows : "2. 8. While dealing with a similar situation wherein an application for leading additional evidence under Order 18 Rule 17-A of the Civil Procedure Code was dismissed, the Punjab and Haryana High Court in case Smt. Parmeshwari Devi & Ors. v. Mohinder Kumar & Ors., 1998(2) PLJ 406, held as follows : "2. Proviso to sub-section (1) of Section 115, of the Code of Civil Procedure, prohibits the High Court from varying or reversing any order 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 was made." "3. The impugned order does not fulfill the requirement of clause (a); nor that of irreparable injury postulated in clause (b) of the provision. This brings us to the other ingredient of cause (b), namely, the litmus test of the question "whether the order, if allowed to stand, would occasion a failure of justice?" "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 CPC. 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. 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." 9. I am in respectful agreement with the aforesaid view which lends full support to the view I have already taken here-in-above. 10. It may also be pointed out here that even the appellate Court has been empowered to permit a party to produce additional evidence in appeal by virtue of the provisions of order 41 Rule 27 of the Code of Civil Procedure which reads as follows : "27. Production of additional evidence on Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against as passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to renounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 11. A bare reading of the aforesaid provisions makes it clear that the powers of the Appellate Court to allow the additional evidence under these provisions are wider than the powers of the trial Court under Order 18 Rule 17-A of Code of Civil Procedure. However, both the provisions are meant to enable the concerned Court to allow leading of additional evidence. Thus, the end product of both these provisions is the same. 12. However, both the provisions are meant to enable the concerned Court to allow leading of additional evidence. Thus, the end product of both these provisions is the same. 12. While dealing with the question of maintainability of a revision against an order passed under Order 41 Rule 27 of the Code of Civil Procedure, the Honble Supreme Court in case Gurdev Singh and others v. Mehnga Ram & Ann, AIR 1997 SC 3572, held as under: "2.... The grievance of the appellate before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an application under Order XLI, Rule 27(b), Code of Civil Procedure (CPC) the learned Additional District Judge at the final hearing of the appeal wrongly felt that additional evidence was required by way of examination of a handwriting expert. The High Court in the impugned order exercising jurisdiction under Section 115, C.P.C. took the view that the order of the Appellate Court could not be sustained. In our view the approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the Appellate Court. The reason is obvious. The Appellate Court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 specially clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in Second Appeal, after an appellate decree is passed. But at this interim stage, the High Court- should not have felt itself convicted that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of the High Court...." 13. Even on the analogy of the law as interpreted by the Honble Supreme Court, as set out here-in-above, a revision against the impugned order is not maintainable. 14. Even on the analogy of the law as interpreted by the Honble Supreme Court, as set out here-in-above, a revision against the impugned order is not maintainable. 14. Without prejudice to the right and remedy to the plaintiffs to challenge the impugned order in appeal if their suit fails and appeal is filed, the revision petition is not maintainable and is accordingly dismissed.