Ravindran vs Raja and Another

G.H. Guttal, J.—The principal question for consideration is whether an order rejecting the application for reference of disputed documents to a handwriting expert, constitutes "case...decided" within the meaning of Sub-section (1) of Section 115 of the Code of Civil Procedure. By his order dated 27th June 1991 in I.A. No. 1440 of 1991 in O.P. No. 85 of 1987 u/s 13 of Hindu Marriage Act, the learned Principal Sub Judge, Thalassery, dismissed the husband''s prayer for an order directing the wife, to furnish her specimen handwriting for the purpose of comparing them with the disputed letters (Exts. A-8 to A-14) alleged to have been written by her to her paramour. He impugns the Validity of this order.

The facts out of which the petition arises are these:

O.P. No. 85 of 1987 by the husband is for decree of divorce on the ground that his wife (Respondent No. 1) committed adultery with Balakrishnan (Respondent No. 2). The petition was filed in 1987. The evidence commenced in 1990. The wife, in her written statement, filed in 1987, specifically denied that she wrote the disputed letters to Balakrishnan. The evidence of the husband (P.W. 1) commenced on 16th March J990 and ended on 24th March 1990. The husband''s second Witness (P.W. 2) was examined on 31st May 1990. The testimony of the husband''s father (P.W. 3) was recorded between 1st August 1990 and 8th August 1990. The last witness of the Petitioner who is supposed to have taken possession of the disputed letters was examined on 18th September 1990. The evidence of the wife was recorded between 16th November 1990 and 22nd June 1991. Meanwhile on 18th June 1991, I.A. No. 1440 of 1991 on which the impugned order was made, was filed. No application for securing the evidence of a handwriting expert for the purpose of establishing the identity of handwriting of the disputed letters and the handwriting of the Respondent was made until the wife, once again, this time, in her testimony, denied that she wrote the letters.

The learned Principal Sub Judge held that reference of the documents to a handwriting expert at this stage will cause further delay in the disposal of this petition. He therefore rejected the application.

The Revisional jurisdiction of the High Court under, Section 115 of the CPC (hereinafter referred to as the Code) can be invoked only in "any case which has been decided" by the Subordinate Court. These words circumscribe and limit the revisional jurisdiction in a fundamental way. If the order sought to be revised does not "decide" "a case" the High Court does not possess the power to revise such orders.

The content of the expression "any case which has been decided" has been analysed and laid down by the Supreme Court in two decisions, Major S.S. Khanna Vs. Brig. F.J. Dillon, ) and Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, ). The substance of these decisions is:

(i) The expression "case" is a word of comprehensive import embracing all civil proceedings, other than suits.

(ii) "case" includes a part of the suit or proceedings and need not dispose of the entire suit or proceedings.

(iii) In order to constitute "a case which has been decided", the order sought to be revised must decide or affect the right and obligation of a party, Major S.S. Khanna Vs. Brig. F.J. Dillon, ).

(iv) A case may be said to be decided if the Court adjudicates, for the purpose of the suit or other proceeding, some right or obligation of the parties in controversy, Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others,

The Code underwent a change with effect from 1st February 1977 by the CPC (Amendment) Act, 1976 (Act 104 of 1976). The amending Act retains the original Section 115 in fact, except that it is now renumbered as Sub-section of Section 115 Code of Civil Procedure:

115 Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such 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,

the High Court may make such order in the case as it thinks fit" and adds a proviso to it. The basic limitation in the original section that (here must be "case decided", did not undergo any change.

However, on the basis of the decisions of the Orissa High Court in Tata Iron and Steel Co. Ltd. Vs. Rajarishi Exports (P) Ltd., ). Sabitri Debi and Another Vs. Baikuntha Das and Another, and Doshei Dei and Others Vs. Rama Routa and Others, ) it was urged that the proviso to Sub-section (1) of Section 115 of the Code and the explanation introduced in Section 115 have so widened the revisional jurisdiction of the High Court that every order made during the tendency of a suit becomes a case decided. Upon an analysis of Section 115 with reference to the amendments introduced by the CPC (Amendment) Act-Act 104 of 1976--I have, in M. Kunju Ahmed v. P.A. Azeez Kunju C.R.P. No. 768 of 1991 (decided on 19th March, 1992) held that the proviso to Sub-section (1) of Section 115 and the explanation to that section have no doubt broadened the meaning of the expression "any case which has been decided". But the meaning of "any case which has been decided" remains what the Supreme Court interpreted it to be. Consequently I have held that every order made during the pendency of a suit or proceeding does not become "a case...decided". It has still to satisfy the essential requirement that the order sought to be revised must decide or adjudicate upon a right or obligation. The reasons given by me in the aforesaid judgment may be summarised as under:

(i) The High Court''s revisional power, by Sub-section (1) of Section 115 of the Code, is confined to "any case which has been decided". The CPC (Amendment) Act, 1976--Act 104 of 1976--does not touch this fundamental prerequisite of exercise of revisional power.

(ii) The proviso, by its very function excepts out, a part of the enacting section and does not replace the main provision to which it is a proviso. The proviso which limits the High Court''s power to cases specified in Clauses (a) and (b) of the proviso does not obliterate the words "any case which has been decided" but it limits the High Court''s revisional power by the Clauses (a) and (b).

(iii) The proviso, by Clauses (a) and (b) sub serves the exercise of revisional power of the High Court and is subordinate to it. It cannot be understood to mean that an order sought to lie revised under Sub-section (1) of Section 115 need not amount to "any case which has been decided". The statements of objects and reasons of the CPC f Amendment) Act, 1976 (Act 104 of 1976) clearly suggests that the legislature did not intend to alter the meaning of "any case which has been decided". The explanation and the proviso were added to remove doubts as to whether interlocutory orders are included within "case decided". The proviso was intended to limit the exercise of revisional power to cases where justice requires interference by the High Court.

The analysis of the law leading to the above conclusions is in my judgment M. Kunju Ahmed v. P.A. Azeez Kunju, C.R.P. No. 768 of 1991.

I will now deal with judicial decisions relevant to this case.

In Nand Kishore Vs. Kishan Chand and Others, an order admitting a partition deed urged to be central to the decision of the suit, was held not to toe "case decided", for the reason that the Court was not thereby precluded from deciding other challenges to the document. Nevertheless the Court distinguishing the Gujarat case, Shah Prabhudas Ishwardas Vs. Coprarceners of a joint Hindu family of Shah Bhogilal Nathalal and Others, ) hinted that if the document were to be decisive of the claim or defence it would have been "a case decided".

Sagarmal Vs. Gulab Chand and Others, ) and Parsuram Dubey Vs. Mahanth Laxman Das and Others, also held that order admitting a document in evidence does not amount ''to a case decided.

In Tata Iron and Steel Co. Ltd. Vs. Rajarishi Exports (P) Ltd., rejection of a petition requiring the opposite party to answer interrogatories in more clear explicit and specific manner, was held to be a case decided, for, according to the Orissa High Court the Supreme Court judgment in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, is "no longer... good..." As already stated, the explanation to Section 115 of the Code does not have the effect of wiping out the requirement of adjudication of a right or obligation enjoined by Sub-section (1) of Section 115 of the Code. For reasons stated in my judgment in M. Kunju Ahmed v. P.A. Azeez Kunju C.R.P. No. 768 of 1991the judgment of the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, ) governs revision applications u/s 115 of the Code. The assumption of the Orissa High Court that in view of the explanation to Section 115 of the Code, every order made during the tendency of a suit or proceeding is a "case decided" is erroneous.

In Sabitri Debi and Another Vs. Baikuntha Das and Another, the same High Court held that an order refusing to send a document to an expert decides no right or obligation of the parties and that therefore it is not a "case decided". So also in Doshei Dei and Others Vs. Rama Routa and Others, ) the Orissa High Court conceded that every order passed by a Court in the course of a suit or proceeding does not amount to a "case decided" and held that adjudication of a right or obligation is essential, to constitute a "case decided". The Calcutta High Court, in Food Corporation of India Vs. Birendra Nath Dhar, held that in view of the amendment to Section 115 of the Code, Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, is not applicable. For reasons stated by me in M. Kunju Ahmed v. P.A. Azeez Kunju C.R.P. No. 768 of 1991 this view is erroneous. In Mahanth Som Prakash Das Vs. Sri Udasin Panchayati Akhara Bara and Others, refusal by a Court to entertain documents not in possession of a party was held to negative the right to produce evidence granted by rules 1 and 2 of Order 13 of the Code. Consequently it was held that the order impugned was a "case decided". The Patna High Court considered that the legal right to produce documentary evidence was decided adversely to the Petitioner and that therefore "a case" was "decided". This decision reinforces the view that in order to constitute "case...decided" a right has to be decided.

The consensus of judicial opinion is that admission of a document in evidence or refusal to send a document to an expert for an examination does not decide or adjudicate upon any right or obligation of a party. The opinion of handwriting expert is but one mode of proving handwriting of a person. Another way of proving handwriting of a person is through the evidence of a person acquainted with the disputed handwriting, Section 47--Evidence Act. Some judicial decisions quoted in Sarcar on evidence consider that evidence u/s 47 is more satisfactory than the evidence of an expert u/s 45 of the Evidence Act. When a Court rejects an application for sending documents for examination by an expert, it merely denies to the applicant the opportunity of tendering evidence of a particular kind and by a particular mode. If the handwriting expert''s evidence is denied to the husband, in this case, he can still lead other evidence to prove that the letters were, in fact, written by his wife. In any view of the matter, an order refusing to send documents to a handwriting expert decides no right or obligation of a party.

The impugned order does not decide adversely to the husband, his claim to lead evidence in regard to the handwriting of his wife. It denies to him the right to lead evidence by sending the documents to an expert. Nothing has prevented him from leading evidence of a person who knows the handwriting of the wife. In my opinion the impugned order is not "a case decided".

The learned trial Judge has given good reasons for rejection of the application. The application was filed after the evidence of the husband was completed. The wife had denied in the written statement that she wrote the letters. This should have alerted the husband to take steps for having evidence of an expert in good time. Yet the husband waited until the wife''s evidence was recorded and the wife, for a second time, denied that the letters are in her handwriting. This happened three years after the petition was filed. Therefore the learned Judge was within is authority in rejecting the application on the ground that such a step would cause further delay in the disposal of the petition. He did not fail to exercise authority. There is no irregularity or illegality in the exercise of the jurisdiction by the learned trial Judge.

For all these reasons the civil revision petition is dismissed.