Devi Singh and Others vs Brij Basi and Others

Chandra Prakash, J.—This is an application in revision u/s 115 CPC against the order dated 25-1-1972 of Shri U.C. Dikshit, II Additional Civil Judge, Agra, allowing additional evidence to be taken on behalf of the Defendants opposite parties.

The facts leading to this application are not disputed and may be narrated as follows. The Plaintiffs opposite parties filed a suit against the Defendants for a permanent injunction restraining the Defendants from interfering with the Plaintiffs'' possession of the plot of which the Plaintiffs claimed to be the bhumidhars and for the recovery of Rs. 500/- as price of the crops alleged to have been cut and removed by the Defendants. The Defendants resisted the claim on various grounds. After taking evidence of the parties the Court below came to the conclusion that the Plaintiffs'' claim was correct and accordingly a decree was passed in their favour.

Against that decree the Defendants filed an appeal in the Court of the II Additional Civil Judge, Agra. During the course of the appeal the Defendants moved an application 34C for filing some documents in order to point out certain mistakes that have crept in the documents filed by them before. After hearing the parties the Court below allowed the application 34C and allowed the Defendants to file additional evidence in the case.

Against the above order the Defendants applicants have come up in revision before me, and have questioned the legality or validity of the order passed by the Court below. A preliminary objection has been raised by the Defendants opposite parties that the order of the Court below does not amount to a case decided and as such it is not revisable u/s 115 Code of Civil Procedure.

I have heard learned Counsel for the parties and after going through the record of the case I have come to the conclusion that the preliminary objection taken by the opposite parties must prevail.

Section 115 CPC is as follows:

The High Court or District Court may call for the record of any case which has been decided by any court subordinate to such High Court or District 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, the High Court or District Court may make such order in the case as it thinks fit.

Provided that nothing in this section shall be construed to empower the District Court to call for the record of any case arising out of an original suit of the value of twenty thousand rupees or above.

The contention raised on behalf of the opposite parties is that by allowing additional evidence to the Defendants opposite parties the Court below has not decided any case either the whole of it or any part of it and as such no revision lies. The learned Counsel for the opposite parties drew my attention to the case reported in Harvenchal Kunwar v. Kanhai Lal 4 Indian Cases 878 in which it was held as follows:

No application for revision lies against an interlocutory order which does not determine the case but which is only made with the object of collecting materials upon which the case is to be determined hereafter.

The word ''case'' in Section 115 of the Code of Civil Procedure, 1908, must ordinarily mean the whole case. But 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 an ex-parte decree, for which the Legislature has provided an independent remedy or a different procedure, such proceeding may be a case within the meaning of this section.

Any orders on matters arising incidentally in the course of the hearing of such proceeding, the object of which is to bring on the record or to exclude from it, materials, upon which its decision is to be based, are not by themselves decisions in a case which can be revised until the case is finally concluded.

An order by the appellate Court calling upon the Court below to record and send up certain evidence is not the decision of a case within the meaning of Section 115 and is, consequently, not open to revision.

The observations in the above case that the word ''case'' in Section 115 CPC must ordinarily mean the whole case was not approved by the Supreme Court in a later case reported in Major S.S. Khanna Vs. Brig. F.J. Dillon, . But the Supreme Court, as will be noticed presently, cannot be said to have overruled the last paragraph quoted in the above ruling.

The learned Counsel for the opposite parties also relied on Gaya Singh v. Name Singh AIR 1920 Pat 266 in which it was held as follows:

If an appellate Court makes a mistake in law in directing evidence to be tendered before it which it is not competent to receive in accordance with the provisions of the Code of Civil Procedure, it commits an error of law, but that will not give the party aggrieved by the order the right to invoke the interference of the High Court u/s 115, Code of Civil Procedure.

The above ruling also supports the Defendants opposite parties.

On behalf of the applicants reliance was placed in Major S.S. Khanna Vs. Brig. F.J. Dillon, in which it was held as follows:

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The above ruling over-ruled the Full Bench decision of the Allahabad High Court reported in Buddhoo Lal and Another Vs. Mewa Ram, . The Supreme Court in the above ruling has simply widened the scope of the word "case" contemplated by Section 115 CPC and it has held that the word "case" is not confined to the entire case but also to the disposal of the part of it. In the above ruling of the Supreme Court the trial Court held that the suit on the allegations contained, in the plaint was not maintainable. The Supreme Court held that notwithstanding: the fact that no formal order for dismissal had been passed by the trial court the finding almost amounted to a disposal of the entire, case and to the dismissal of the case. It will thus be seen that the case reported in Major S.S. Khanna Vs. Brig. F.J. Dillon, is distinguishable from the facts of the present case.

The above Supreme Court ruling was referred to by the Supreme Court subsequently in a later case reported in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, . It was specifically observed in paragraph 10 of Baldevdas''s case (supra) as under:

But it was not decided in Major S.S. Khanna Vs. Brig. F.J. Dillon, that every order of the Court in the course of a suit amounts to a case 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.

It will thus follow that every inter-locutory order in a case will not amount to a case decided. In the ruling reported in 1970 SC 406 the trial Court disallowed certain questions, i.e., the court has disallowed a part of evidence in the case. The ruling reported in 1970 SC 406 is, therefore, more applicable to the facts of the present case in which the additional evidence has been allowed.

On behalf of the applicants reference was also sought to Dharmashi and Others Vs. Patel Kadva Bhada and Others, . This ruling no doubt, supports the applicants but it is in conflict with the Division Bench cases reported in Gaya Singh v. Name Singh AIR 1920 Pat 266 and Havanchal Kunwar (supra) and with respect will follow, the Division Bench cases.

Reference was also sought on behalf of the applicants to R.S. Tiwari v. Mahadeo 1968 ALJ 109. This case is distinguishable on facts as ft related to Order VI, Rule 17, CPC regarding the amendments of the plaint.

The lower appellate Court has simply allowed certain additional evidence to be taken. It has not decided the case at all either the whole of it or any part of it. It is possible that notwithstanding the additional evidence allowed by the Court below the Court below may maintain the decree in favour of the applicants. At any rate, when the first appeal is decided the aggrieved party will have a right of second appeal and in that case, the questions of errors of law, if any, on the point of allowing additional evidence or not will be decided. As already observed above, at present there is nothing against the applicants which has been decided so far, in order to make out a case contemplated by Section 115 Code of Civil Procedure.

For the reasons given above, I am of opinion that the preliminary objection taken by the opposite parties has force and the application in revision is dismissed; but there will be no order as to costs.