Smt. Madhabi Dey and Others vs Basudeb Bakuli and Others

Nripendra Kumar Bhattacharyya, J.—Heard the submission of the learned Senior Advocate for the petitioners Mr. S.P. Roy Chowdhury being assisted by the learned Advocates Mr. Subhra Kamal Mukherjee, Mr. Debasis Roy and Mr. Rabindra Nath Mahato and the learned Advocate for the opp. Parties Mr. Sambhu Nath Roy being assisted by Mr. Amit Kr. Ghosh. Considered the materials on record.

The landlord decree-holder, by this revision under Article 227 of the Constitution of India challenged a revisional order u/s 115A of the CPC passed by the learned Additional District Judge, 9th court, Alipore, in C.R.No. 259/94 dated 2.2.96.

The point involved in this case is that in the suit between the landlord and the tenant, the suit was decreed and in second appeal the judgment and decree of the trial court was affirmed. Then the decree was put into execution and thereafter an application was made by the tenant judgment-debtor u/s 47 of the CPC and that application was rejected. Thereafter, the landlord-decree holder went to lake possession of the property but was resisted followed by an application under order 21 Rule 97 of the CPC. In that proceeding, the tenant-creditor wanted to put certain questions by recalling the landlord decree-holder. The learned Munsif passed order No. 110 dated 21.7.94 rejecting the prayer of the tenant debtor. The tenant-debtor came up in revision before the court of the learned Additional District Judge, 9th court, Alipore u/s 115A or the CPC being Civil Revision Case No. 259 of 1994. The learned Additional District Judge allowed the revision and set aside the order of the learned Munsif, with a direction to give an opportunity to the opp. Parties judgment-debtors to put question to witness Nandalal Pal in terms of the petition dated 21.5.94 and also to give opportunity to the parties to adduce further evidence and then to decide the case. This order gives rise to the present revision under Article 227 of the Constitution of India.

Placing reliance upon a Single Bench decision of this court, in the case of Kalibala Akhuli and Others Vs. Sambhu Akhuli and Others, Mr. Roy Chowdhury contended that rejection of a prayer for recalling the landlord-creditor to put some questions are matters which do not affect the right or legality of the judgment-debtor. No revision Is maintainable. Mr. Roy Chowdhury further contended that the decision referred to above is passed relying is on the Supreme Court decision in the case of Central Bank of India Ltd. v. Gokul Chandra, reported in AIR 1967 SC 789, the case of Madhu Limaye Vs. The State of Maharashtra, and the case of Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, and as such it has got the binding effect upon this court under Article 141 of the Constitution of India as the facts are similar in the case at hand with that of the case in Baldevdas Shivlal v. Filmistan Distributors (supra). The principle as laid down in that case applied to this case in all fours. As such, in deciding the revision u/s 115A of the CPC the learned Additional District Judge acted in excess of the jurisdiction vested in him by law and as such the judgment impugned cannot be sustain law.

Mr. Sambhu Nath Roy, on the other hand, contended that the facts of the case are not similar with that of the case of Baldevdas Shivlal (supra) and as such this case is distinguishable from the case of Bladevdas Shivlal and the revision is maintainable against an order allowing the revision after setting the order of the learned Munsif for recalling the creditor-landlord to be cross-examined.

Having heard the sub missions of the learned Advocates for the parties and considering the materials on record. I am of the view that the question raised before the Supreme Court in the case of Baldevdas Shivlal (supra), Central Bank of India Ltd. (supra) and Madhu Limaye (supra) are decisions of principle that commission for examining witnesses, inspection, fixing a date of hearing, admissibility of a document or the relevancy of a question are matters which do not affect the rights or liabilities of the parties. In that case the court overruled an objection regarding a question put to a witness and permitted that question to be put and the apex court observed that, it is not a case decided and hence no revision lies. So this case comes within the parameter of that principle and in my view, no revision, rejecting the prayer for recalling that witness for cross-examination is not maintainable and as such the order cannot be sustained in law.

I, accordingly, allow the revision and set aside the order impugned passed in revision by the learned Additional District Judge.

Let a copy of this order be sent down to the trial court by a special messenger at the cost of the petitioners. Such cost be put in by tomorrow. Liberty is given to the parties to communicate the gist of the order to the trial court and the trial court is directed to act on such communication.