Darshan Singh vs Vijay Kumar

Dhiraj Singh Thakur, J.—The present revision petition is against the order dated 19th of September, 2013 passed by the learned Munsiff,

Akhnoor in case titled Darshan Singh & ors. v. Vijay Kumar by virtue of which the right of the petitioners to adduce their evidence has been

closed. The ground on which the order impugned is challenged is that the same is in violation of the principles of natural justice as no 'last or final

opportunity' or 'opportunity in the interest of justice' had been provided to the petitioners by the court below. Additionally, the order impugned has

been challenged on the ground that on the previous date of hearing i.e., 29th of August, 2013, none was present on behalf of the defendant and as

such, the closing of right to lead evidence is against equity.

From a perusal of the order impugned dated 19th of September, 2013, it reflects that the plaintiffs' evidence was closed despite seven

opportunities having been granted to them for leading evidence. The court below also recorded that no reasons were given for seeking yet another

opportunity for leading evidence.

Heard learned counsel for the parties.

The present revision petition is clearly barred in terms of the proviso to Section 115 of the Civil Procedure Code, which reads as under:-

Revision.

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to the 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, or

(d) to have caused failure of justice,

the High Court make take 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 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.

In Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, , the Apex Court in para 32 has held as under:-

A plain reading of S. 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for

revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the

answer is no then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the

revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of

revision under S. 115. This is marked distinction in language of S. 97(3) of the Old Amendment Act and S. 32(2)(i) of the Amendment Act. While

in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is

significantly absent in S. 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the

right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the

altered mode, without exception, unless there is a different stipulation.

This court, in view of the proviso to Section 115 of the Civil Procedure Code, cannot, therefore, exercise its powers in terms of Section 115.

Even otherwise, the court below has acted within jurisdiction while closing the right, of the plaintiffs/petitioners herein to lead evidence having been

provided seven opportunities in that regard. The petitioners do not have any indefeasible right to claim ""a final opportunity or an opportunity in the

interest of justice"" when no reasons whatsoever were reflected as to why evidence could not be led on the previous dates of hearing.

The order impugned is not an order which, if it had been made in favour of the petitioners, could have finally disposed of the suit in favour of the

plaintiffs-petitioners herein. The order impugned is, even otherwise, perfectly legal and calls for no interference. The petition is, therefore, clearly

misconceived and is accordingly dismissed along with CMA No. 64/2013.