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2000 DIGILAW 478 (KAR)

Parvatamma v. Anjanappa

2000-07-12

H.N.TILHARI

body2000
ORDER Hari Nath Tilhari, J.—By this revision petition under Section 115 of Code of Civil Procedure, the Defendant/revision Petitioner has sought to challenge the order dated 10.4.2000 passed by the Principal Civil Judge (Junior Division) and J.M.F.C., Chickballapur, in O.S. No. 283 of 1990. 2. In the course of trial, it appears that the learned Counsel for the Defendant raised the objection as to the admissibility of the unregistered document namely palupatti i.e., some document alleged to be palupatti. The objection of the Defendant was that the palupatti was not registered and so it cannot be marked in evidence of the Plaintiff as it is inadmissible to prove title of any coparcener to any of the property. The Court below rejected the objection taking the view that even if the document may be taken to be an unregistered partition deed and it is not registered, but even an unregistered document may be used for collateral purposes. Whether that document itself is the partition-deed or not, that question has to be decided at the time of hearing of the suit and unless that question is decided, the question whether the document requires to be registered or not could not be decided. But, even if a document is unregistered and it is intended to be used for collateral purposes, the trial Court opined that even an inadmissible document can be used for collateral purposes and rejected the objection. From this order, the Defendant has come up in revision under Section 115. 3. To invoke the jurisdiction of this Court under Section 115, the first thing the applicant has to establish is, whether the order impugned amounts to a case decided? It called upon the learned Counsel to satisfy the Court whether the order impugned amounts to a case decided? The learned Counsel for the revision Petitioner made reference to the decision of Their Lordships of the Supreme Court in the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497 . In this case, Their Lordships of the Supreme Court have been pleased to observe that, 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 proceeding in a civil Court. Brig. F.J. Dillon, AIR 1964 SC 497 . In this case, Their Lordships of the Supreme Court have been pleased to observe that, 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 proceeding in a civil Court. Their Lordships, no doubt, opined that, To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject. Thus, Their Lordships opined that the expression used in Section 115 is not synonymous to the suit. Even an order relating to a part of proceedings may amount to a case decided. The purport of this case has been considered and explained by other subsequent decisions of Their Lordships of the Supreme Court in the case of Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) Pvt. Ltd. and Others, AIR 1970 SC 406 where Their Lordships of the Supreme Court considered the impact and then observed as under: But it was not decided in Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 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, 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. In the case of Baldevdas, the question about the interpretation of case decided did arise in the circumstances as mentioned below as appears from a perusal of para No. 4, When the case reached hearing and the evidence of a representative of Filmistan as being recorded Counsel for the Defendants asked in cross-examination the question whether the agreement between the Plaintiff and Defendants Nos. 5 and 6 was a commercial transaction and was not a lease?' The question was objected to by Counsel appearing for Filmistan. Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection. 5 and 6 was a commercial transaction and was not a lease?' The question was objected to by Counsel appearing for Filmistan. Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection. Feeling dissatisfied with the order of the trial Court rejecting the objections raised by the Filmistan's Counsel, the Filmistan filed the revision under Section 115 of Code of Civil Procedure. The Hon'ble High Court interfered with that order and the matter had gone to Hon'ble Supreme Court from the revisional order of the High Court. In that context as I mentioned earlier, the question which arose is whether the order passed by the High Court of Gujarat was within the jurisdiction of High Court under Section 115. Their Lordships of the Supreme Court were pleased to set aside the order passed by the High Court and thus opined "that the order in that case rejecting the objections to the question could not be interfered with under Section 115 as it was not a case decided. In that context, Their Lordships have interpreted what is meaning of the expression "case decided" as mentioned earlier. 4. That Section 115 of the Code of Civil Procedure, as amended, along with its explanation has been referred to me. No doubt, explanation to Section 115 defines the term 'any case which has been decided' to include any order made, or any order deciding an issue, in the course of a suit or other proceeding. No doubt, this explanation indicates that an order passed in course of proceeding of the suit or other proceeding or an order deciding the issue or any order made amounts to a case decided. But the expression 'order' used in Section 115 or in its explanation has not to be taken in ordinary sense or parlance. Because, the Legislature has itself defined the expression "order" vide Section 2 of the Code as under: Section 2(14).-Order means the formal expression of any decision of a Civil Court which is not a decree. Here it means, decision of some dispute as to right involved in the suit or relating to right in proceeding as to course of proceeding. In my opinion, the question of admissibility of a document cannot be said to have decided the right of the party finally. Here it means, decision of some dispute as to right involved in the suit or relating to right in proceeding as to course of proceeding. In my opinion, the question of admissibility of a document cannot be said to have decided the right of the party finally. The order impugned only considers whether the document is admissible for the purpose of evidence and the trial Court opined that the document is admissible. This order can be said only to be an order in course of proceedings or an interlocutory order nor of the nature of an order amounting to case decided. Such a view had also been expressed in a Full Bench decision of the Lahore High Court in the case of Bibi Gurdevi, Rep. by Prithvi Raj Khosla Vs. Chaudhri Mohammad Bakhsh and Others, AIR 30 1943 Lah 65. Bhinde, J., as he then was, observed as under: From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a case' but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc., could be looked upon as cases'. But when a decision relates to some matter in controversy affecting the rights of the parties, I do not see why it should not be looked upon as a case'. Their Lordships observed that the word 'case' is wide enough to include a decision which relates to any matter involving the controversy affecting the rights of the parties. This view appears to be in consonance with the view expressed by the Supreme Court in Baldevdas Shivlal's case. Dalip Singh, J., as he then was in Lahore High Court, has been pleased to observe at page 80 as under: It seems clear to me that if a Court decides merely to summon a witness, or rejects or admits a document as evidence in the case, or postpones or adjourns the case, such an order cannot possibly be held to be a case decided. If authority were needed for this proposition, I would rely on 4 IC 878. 5. The case reported in 4 IC 878 is the decision in the case of Hevan Chal Kunwar Vs. If authority were needed for this proposition, I would rely on 4 IC 878. 5. The case reported in 4 IC 878 is the decision in the case of Hevan Chal Kunwar Vs. Kanhailal, 1909 (12) OC 405 decided by the Judicial Commissioners Court of Oudh which later became the Chief Court of Oudh and later on after 1948 with the merger of entities of the Chief Court of Oudh and of the erstwhile Allahabad High Court, from which emerged the New High Court of Uttar Pradesh bearing the old name. It was held in that case as under: That where there are independent proceedings arising out of a case, such as a proceeding to restore a case dismissed in default, or to set aside a decree for which the Legislature has provided an independent remedy or a different procedure, such a proceeding may be a 'case' within the meaning of Section 115. 6. These observations of Dilip Singh, J., had been followed by the Punjab and Haryana High Court in another case namely Sagarmal Vs. Gulab Chand and Others, AIR 1978 P & H 251, wherein it has been held that a Court admitting a disputed unregistered document into the evidence and overruling the objection of the Plaintiff/Petitioner that it is not admissible in evidence, such an order does not amount to a case decided. 7. In my opinion, the view taken by the Lahore High Court, Judicial Commissioner's Court of Oudh and the Punjab High Court and the view I am going to take appear to be in consonance with the view taken in Baldevdas Shivlal's case. The order impugned overruling the objections raised by the Defendant regarding the admissibility of the document cannot be said to be an order amounting to a case decided. 8. In the light of the above discussions I find the first initial ingredient or condition to be established for invoking Section 115 has not been established. In my opinion, the revision petition is misconceived and is not maintainable. It has to be dismissed. 8. In the light of the above discussions I find the first initial ingredient or condition to be established for invoking Section 115 has not been established. In my opinion, the revision petition is misconceived and is not maintainable. It has to be dismissed. No doubt, it will always be open to argue the question of admissibility of the document at the time when the nature of the document is considered and then that question may be raised because these pleas can be raised even before the Appellate Court and in view of Section 105 of Code of Civil Procedure, I do not want to express any opinion on the question of admissibility or inadmissibility of the document. 9. The revision petition, subject to the above observations, is hereby dismissed. 10. As the revision petition has been dismissed, I.A. VII has become infructuous and it is also rejected.