Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 534 (PNJ)

Rangila Singh v. Jagtar Singh

2001-05-14

MEHTAB S.GILL, S.S.SUDHALKAR

body2001
JUDGMENT S.S. Sudhalkar, J. - This appeal has been filed against the order of the learned Additional District Judge, Amritsar dated 7.9.1994, vide which he allowed the production of additional evidence. When this appeal came up before the learned Single Judge on 20.4.1995, learned counsel for the respondents contended that no appeal was maintainable against an order permitting additional evidence. Learned counsel for the appellant conceded to this contention praying the appeal to be treated as revision petition. Learned counsel for the respondents also contended that no revision petition would be maintainable in view of proviso (a) to Section 115 of the Code of Civil Procedure. Again the matter came up for hearing before the learned Single Judge on 2.5.1995. After hearing the learned counsel, the learned Single Judge admitted the case to a Division Bench. 2. The facts are that the suit filed by the appellant was decreed by the learned Additional Senior Sub Judge and the appeal was filed by some of the respondents against it. During the pendency of the appeal, the appellants in the appeal moved an application under Order 41 Rule 27 of the Code of Civil Procedure for production of the original Will dated 2.6.1987 registered on 23.9.1987 by way of additional evidence. This application was allowed and it was also observed that the appellants in this appeal can also examine the attesting witness and scribe of the will to prove the original will and the present appellant/plaintiff was also given an opportunity to lead evidence in rebuttal. 3. Learned counsel for the appellant has urged that this appeal may be treated as revision and the counsel for the respondent agreed to the same. Therefore, hereinafter the appellant shall be referred as the petitioner. This matter was heard as a revision petition. The question that comes for our determination is, as to whether this revision is competent or not, and if competent, whether the order of the lower appellate Judge should be set aside or not. 4. Learned counsel for the petitioner has relied on the proviso to Section 115 of the Code of Civil Procedure. Section 115 is a provision regarding filing revision. 4. Learned counsel for the petitioner has relied on the proviso to Section 115 of the Code of Civil Procedure. Section 115 is a provision regarding filing revision. Proviso 1 to Section 115 of the Code of Civil Procedure is as under : "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." 5. Admittedly, the impugned order is not such that if it had been made in favour of the present petitioner, it would have finally disposed of the suit or proceedings. Therefore, the petitioner does not get the benefit of clause (a) of the proviso to Section 115. The question to be decided is only, whether the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the petitioner. 6. Learned counsel for the petitioner has argued that he gets the advantage of sub-clause (b) of the abovesaid proviso. 7. Learned counsel for the respondents has cited various authorities. He has cited the case of Gurdev Singh and others v. Mehnga Ram and another, 1997(2) PLJ 75. In that case also the lower appellate Court had allowed additional evidence by way of examination of Hand-writing Expert under Order 41 Rule 27(b) at the stage of final hearing of the appeal. It was held by the Supreme Court that the High Court in revision at interim stage, when the appeal is pending for final hearing, should not interfere with the order, and if the order of the lower appellate Court under Order 41 Rule 27(b) is wrong, on merits, it is open to challenge after the appellate decree is passed. 8. He has also cited the case of Balwant Singh and another v. Bishan Singh, 1998(2) PLR 482. 8. He has also cited the case of Balwant Singh and another v. Bishan Singh, 1998(2) PLR 482. It has been held in that case relying on the case of Gurdev Singh (supra) that the revision was not maintainable against an order whereby the application filed under Order 41 Rule 27(b) had been allowed by the lower appellate Court. 9. Learned counsel for the petitioner has relied on the case of Joginder Pal v. Raj Rani, 1995 PLJ 140. It is the decision of a learned Single Judge of this Court. In that case, the plaintiff-respondent filed a suit against the defendant-petitioner for possession of the property as well as for mandatory injunction. Issues were framed in that case. However, the defendant-petitioner moved an application for addition issues. The trial Court held that there was no necessity of framing additional issues and that the application was filed with the sole object of filling the gaps in the evidence of the petitioner. Trial Court further held that deficiency cannot be allowed to be rectified by framing additional issues and then giving the party an opportunity to lead additional evidence. In that case, the preliminary objection of maintainability of the revision petition was raised. It had been held by the learned Single Judge of this Court that if any jurisdictional error has been committed by the Subordinate Court in the course of a suit or other proceedings, it can be corrected in revision provided, the order had occasioned failure of justice or caused irreparable injury to the party against whom it had been made. It has been further held that mere fact that such an order can be challenged by way of appeal filed against the decree under Section 105 of the Civil Procedure Code, would not be sufficient to hold that the revisional jurisdiction of the Court under Section 115 cannot be exercised against such an order. It has been held by the learned Single Judge that it was not possible to hold that the availability of an opportunity to an aggrieved party to challenge an interlocutory order in an appeal which may be filed against a decree under Section 105 cannot be treated as a ground for holding that jurisdiction of the High Court under Section 115 stands ousted. 10. 10. Considering the principles laid down in the above mentioned cases, this Court has to see whether the impugned order if allowed to stand, would occasion failure of justice or cause irreparable injury to the party against whom it was made assuming, (I am using the word "assuming") that the impugned order was not legal. If it has not resulted in failure of justice or caused any irreparable injury to the petitioner, this Court cannot interfere with the same. What has been allowed by the impugned order is that the respondent has been allowed to lead additional evidence by producing the original Will, which is a registered one, and permitting him to examine attesting witness and the scribe to prove the same. The petitioner is also given liberty to lead evidence in rebuttal. It cannot, therefore, be said that the petitioner will be able to take advantage of proviso (b) to Section 115 of the Civil Procedure Code because it cannot be said that the order, if allowed to stand will result in failure of justice or cause irreparable loss to the petitioner. 11. In the recent judgment of the Supreme Court in the case of Krishan Kumar Khanna v. International Society for Krishna Consciousness, 2001(2) Indian Civil Cases 213, it is held that it was not an appropriate case where the High Court should have exercised its jurisdiction under Section 115 of the Civil Procedure Code to set aside the order of the trial Court vide which the trial Court had allowed the production of additional evidence subject to payment of costs. It has been held by the Supreme Court that no prejudice can be regarded as having been caused to the respondent with the trial Court having permitted the production of the additional evidence. (The other finding of the Supreme Court regarding effect of acceptance of costs by the aggrieved party is not necessary to be discussed in this judgment). In view of the above reasons, we do not find that the impugned order should be interfered with. This appeal, which is treated as revision, is dismissed. Appeal dismissed.