Sat Pal vs Ghoghri and another

J.V. Gupta, J.

This is defendants'' second appeal against whom the suit for declaration and possession has been decreed by both the Courts below.

One Bharta was the owner of the suit land. He died on September 29, 1976, leaving behind plaintiffs Nos. 1 and 2 as his only daughters. They filed the suit on the basis of their title which was contested on behalf of the defendants on the basis of the Will alleged to have been executed by the said Bharta in their favour. The Will was not produced, in original, in the trial Court. Application to produce the secondary evidence by way of a copy of the said registered Will was declined by the trial Court vide detailed order dated August 4, 1979. Revision against the said order of the trial Court was dismissed by this Court in limine without passing any speaking order. Ultimately, the plaintiffs'' suit was decreed by the trial Court. In appeal, the defendants wanted to challenge the order of the trial Court dated August 4, 1979 also, declining their prayer for permission to lead secondary evidence of the alleged Will in their favour. According to the lower appellate Court the said order could not be challenged in appeal because the defendants had already gone to the High Court against the said order by way of revision, which admittedly, was dismissed in limine without passing any speaking order. The lower appellate Court dismissed the appeal on merits. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

The learned counsel for the appellants contended that since this Court had dismissed the revision petition against the order of the trial Court dated August 4, 1979, declining their prayer to lead secondary evidence of the alleged Will in their favour, in limine without passing any speaking order, they were entitled to challenge the said order of the trial Court in appeal against the judgment and decree of the trial Court, in view of the provisions of Section 105 of the Code of Civil Procedure (hereinafter referred to as the Code). In support of the contention, the learned counsel relied upon Karam Singh v. Jagta, AIR 1982 P&H 51.

After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the appellants.

Section 105 of the Code reads : ''''Other orders. (1) Save as otherwise expressly provided, on appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.''''

Since the decision given by the trial Court on the application for permission to lead secondary evidence of the alleged Will affected the decision of the case, the appellants were entitled to challenge the same in appeal against its judgment and decree. Since this Court had dismissed the revision petition against the order of the trial Court rejecting the prayer for permission to lead secondary evidence of the Will in limine without passing any speaking order, it could not be held that the said order passed by this Court had become final or operated as res judicata between the parties to the extent that it could not be challenged in a appeal.

In this view of the matter, this appeal succeed and is allowed. The judgment and decree of the lower appellate Court are set aside. The District Judge, Jind, is directed to register the appeal on its original number and to decide the same in accordance with law expeditiously. The parties have been directed to appear in the Court of the District Judge on March 16, 1985. It is also made clear that the plaintiffs Will be entitled to show before the lower appellate Court that the defendants were not entitled to lead secondary evidence of the alleged Will in their favour. The records of the case be sent back forthwith. No costs.