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Judgment
Kalyanmoy Ganguli, J.—This is an application u/s 115 of the CPC and is directed against order Nos. 79 and SO both dated 18th April, 1936 passed by the learned Munsif, First Court Rampurhat, District Birbhum in Title Suit No. 134 of 1976. Opposite Party No. 1 as plaintiff instituted the suit for declaration of title, recovery of possession and damages in the aforesaid title suit. The plaint contained many allegations into which I need not go at the present moment. The present petitioner as defendant No. 4 submitted its written statement after entering appearance in the suit and denied the material allegations made in the plaint and prayed for dismissal of the suit.
At the instance of the plaintiff opposite party a learned advocate of the Rampurhat court was appointed as Pleader Commissioner to hold local investigation, survey etc. of the suit property and its surroundings.
The Ld. Pleader Commissioner submitted a report to the learned court. The defendant No. 4, the petitioner herein, filed a written objection to the said defective report submitted by the pleader commissioner. The date for hearing of the objection and that of the report of the pleader commissioner was fixed on 18th April, 1986'' but on that date the petitioner herein filed an application praying for adjournment of the hearing on the ground, that its advocate was unable to attend the court from Suri on that day and as such the petitioner would be prejudiced if no opportunity was granted to examine the learned pleader commissioner.
The learned Munsif, instead of considering the defendant No.4''s application dated 18th April 1986 praying for adjournment on its own merit rejected the same, inter alia, on the ground that on many earlier occasions the case had to be adjourned at the instance of the present petitioner. Thereafter by order No. SO passed on 18th April, 1986, on a consideration of the matter, the learned court below accepted the report of the learned pleader commissioner and fixed the date for peremptory hearing of the. suit. It is against this order that the present petitioner has come up before this Court.
The main contention of the learned counsel for the petitioner is that the learned Munsif ought to have granted another opportunity to the petitioner to contest the matter and to examine the learned pleader commissioner on the merit of his report irrespective or regardless of the fa that on earlier occasions the matter had to be postponed owing to the conduct of the petitioner defendant. The learned advocate for the petitioner further states that no one would be prejudiced if merely an opportunity is given to it to examine the learned pleader commissioner.
Mr. Bijitendra Mohan Mitra, learned advocate, appearing for the plaintiff opposite party vehemently opposes the petitioner and drew my attention to the proviso to order 26 rule 10 sub-rules 2 and 3. He submitted that acceptance of the report of the learned pleader commissioner will not pre-judice the present petitioner in any way, inter alia, inasmuch as after all the report of the learned pleader commissioner is but only one piece of evidencve tendered or to be tendered in the suit and that the suit will proceed on the bais of the totality and prepondenrance of evidence where this report may or may not be a significant piece of evidence to rely on at all. Mr. Mitra further contended that as the acceptance of the report of the learned pleader commissioner does not amoount to any decision on the rights of the parties even at the interlocutory stage, this High Court in its revisional jurisdiction is barred at the thresh-hold to entertain the application because the entire pre-structure of Section 115 C.P.C, is based on the anvil of "case decided". Mr. Mitra urges that unless a court decides the rights of the parties in any way, the revisional court lacks the initial jurisdiction to entertain the application to correct the order impugned in such application. In support of this contention Mr. Mitra has referred to the case of Ramrichpal Singh v. Dayanand Sarup, minor, through Bhagwat Sarup reported in AIR 1955, Allahabad 309 (Full Bench). In that case in paraghraph 16 at page 312 it states that "Orders which are not appealable, but objection to which can be entertained at the time of the hearing of the appeal u/s 105 of the Code on the ground that they affect "the decision of the case". The question whether these are revisiable orders or not will depend upon the nature of the order and the decision of the question whether Section 105 provides an adequate remedy. The test for determining whether they amount to cases decided must be the same as for the next group of order.
At page 314 in para 29 it is stated that "A proceeding in which the rights of the parties are not to be conclusively decided, but is merely Intended to be a step in the determination of those rights cannot be itself a case or a cause or action at law". Thus if the proceeding is a. suit in the sense in which that word is used in the Civil Procedure Code, the suit itself and the whole of it and not a part of it is normally a ''case''. A suit is initiated by a plaint which contains such allegations as are mentioned in Order 7 and there is a written statement by way of defence to the suit and such written statement contains matters which are mentioned in Order 8 of the Civil Procedure Code. The suit is disposed of by means of a decree or a final order dealing with the allegations made in. the plaint and the defence raised in the written statement.
A decision on any one of the issues raised in the suit arising out of the defence in respect of matters mentioned in Order 7 unless it disposes of a severable part of the plaintiff''s claim, cannot in my judgment amount to a ''case''. Therefore, normally a separate decision on one of the issues in the suit is not to be treated as a case decided. These issues may relate to the merits of the claim itself or may arise out of the various defences open to the defendant which render the claim not maintainable. Thus, in my opinion, the decision on a question of jurisdiction of the Court to hear. and determine a suit or that the suit is barred by limitation or res judicata is not to be treated as a case decided, unless the suit itself is disposed of by the decision. I may point out that I am not here dealing with the question whether a decision on any of these points raises a question of jurisdiction which was the point considered in the two Privy Council decisions : AIR 1949 PC 156 (O) and AIR 1949 PC 239 (R). In my judgment the decision of the Full Bench in AIR 1921 Ail 1 (A) was, with respect, perfectly correct".
Mr. Mitra also relied on the case of Baldevdas Shivlal and Another v. Filmistan Distributors (India) Pvt. Ltd. & Ors., reported in AIR 1970 SC 406. He drew my attention to para 10 at page 410 wherein it has been ob served that "by ordering that a question may properly be put to a witness who was being examined, no case is decided by the Trial Court. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S. S. Khanna v. Brig. F. J. Dillon (1964) 4 SCR 409 that the expression "case" is a word of comprehensive import: it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceeding in a Civil Court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpretration of gross injustice. But it was not decided in Major S. S. Khapna''s case, (1964)4 SCR 409 (supra) 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 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."
Mr. Mitra confronted me with the above decision, specially the decision cited later which is one of the Hon''ble Supreme Court and which is binding on me under Article 141 of the Constitution of India and argues that as acceptance of the report of the learned pleader commissioner does not decide the rights of the parties, it does not come within the expression "case decided" which is the sine qua non for assumption and exercise of jurisdiction u/s 115 of the Code of Civil Procedure. I think there is considerable force in the submission of Mr. Mitra.
In the facts and circumstances of the case it is not possible for me to entertain this application. The application is rejected. There will be no order as to costs.
Let the Lower Court''s records be sent down as early as possible as the suit concerned is of 1 976.