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2006 DIGILAW 135 (GAU)

Dilip Kumar Kalita v. Nilima Saikia

2006-02-06

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. The opposite party herein, namely, Miss Nilima Saikia, made an application under Section 166 of the M.V. Act, 1988, seeking compensation for the injuries caused to her in a motor vehicular accident, on 2nd June, 2004, at Nagaon. This application gave rise to M.A.C. Case No. 1492/2004. The learned Member, Motor Accident Claims Tribunal, Nagaon, recorded the evidence of the claimant on 7th November, 2005. The claimant was not cross-examined on that day by learned Counsel for the present petitioner Nos. 1 and 2, who were the registered owner and driver respectively of the offending vehicle and who accordingly stood impleaded as opposite party Nos. 1 and 2 in the said claim proceeding. By order, 7th November, 2005, the learned Tribunal closed the evidence of the claimant and fixed 10th January, 2006 as the date of recording of evidence of the opposite party to the said claim proceedings (i.e., the present petitioners) and also for arguments. The present petitioners, then, filed an application seeking, inter alia, a direction recalling the claimant for cross-examination. This prayer was turned down by the learned Tribunal on 10th January, 2006. Aggrieved by the order, dated 10th January, 2006, aforementioned, the owner and the driver of the offending vehicle has approached this Court with the help of the present petition, made under Section 115 of the Code of Civil Procedure read with Section 151 thereof, seeking appropriate directions in this regard. 2. Heard Mr. D.K. Katakey, leaned Counsel for the revision petitioners. 3. 2. Heard Mr. D.K. Katakey, leaned Counsel for the revision petitioners. 3. While considering the present revision petition, what needs to be noted is that in the past, i.e., before the C.P.C. (Amendment) Act, 2002, came into force, an order, which suffered from jurisdictional error, could have been interfered with by the High Court in exercise of its revisional jurisdiction under Section 115 if the order under challenge was likely to cause failure of justice or irreparable loss or injury to the party approaching the Revisional Court, but with Clause (b) of the proviso to Section 115(1) having been deleted under the new Act, the implication is that even if an order suffers from jurisdictional error or causes failure of justice or irreparable injury to the party approaching the Court, the order will not be interfered with in revision unless the order, which is sought to get revised, is such that had the order been made in favour of the party applying for revision, it would have terminated the suit or the proceeding, see Karabi Karmakar and Anr. v. Shibani Karmakar and Ors. reported in 2003 (1) GLT 445 and Shiv Shakti Co-op. Housing Society v. Swaraj Developers reported in [2003] 3 SCR 762. 4. In short, after the C.P.C. (Amendment) Act, 2002, has come into force, an order passed, during the course of the proceeding, would not be revisable unless the Revisional Court is satisfied that the order, sought to get revised, is one, which, if had been made in favour of the person applying for revision, would have terminated the suit or the proceeding. 5. In view of the fact that had the prayer of the present petitioners for recalling of the claimant for cross-examination been allowed by the learned Tribunal, it would not have terminated the proceedings of the claim case, in question, it logically follows that the impugned order, dated 10th January, 2006, whereby the present petitioner's prayer for recalling of the witnesses aforementioned has been turned down, cannot be revised by taking recourse to Section 115, C.P.C. To put it differently, an order either recalling a witness or refusing to recall a witness is not a revisable order, for such an order does not determine the lis nor does such an order terminate the suit or the proceeding. In an appropriate case, however, a person may, when an order is not revisable, approach the High Court with a writ petition under Article 226 or 227 of the Constitution of India see Surya Dev Rai v. Ram Chancier Rai reported in 3 (2003) CLT 133 (SC) : (2003) 6 SCC 683. 6. Confronted with the situation as indicated, hereinabove, Mr. D.K. Katakey, learned Counsel for the petitioners, has prayed for allowing the petitioner to withdraw this revision petition with liberty given to the petitioners to approach this Court with appropriate application, in future, if so required. 7. Considering, therefore, the matter in its entirety and in the interest of justice, this revision is disposed of on being withdrawn by the petitioners with liberty given to the petitioners to approach this Court with appropriate application, in future if so advised.