Tulsi Ram vs Arjan Singh and Another

R.S. Pathak, C.J.—This is a Defendant''s revision petition against an order of the Chief Judicial Magistrate, Hamirpur, exercising the powers of a Subordinate Judge, declining to frame further issues at the instance of the Defendant in a suit for possession.

The Plaintiff filed a suit for possession and rent. After the evidence of the parties had been recorded and a date fixed for arguments the Defendant applied under Order 14 Rule 5 of the CPC for the framing of certain additional issues. The application was rejected by the trial court. The trial court observed that issues were originally framed as far back as October, 1968, and the present application for additional issues had been moved almost five years later when the case had already been fixed for final arguments. On the footing that these additional issues could have been applied for when the original issues were framed, it rejected the application as greatly belated.

At the outset learned Counsel for the Plaintiff has raised an objection that the revision petition does not lie because the order impugned by the Defendant does not amount to a case decided" within the meaning of Section 115 of the Code of Civil Procedure. In my opinion, the preliminary objection must be upheld.

There was some controversy on what is a "case decided" for the purposes of Section 115 of the Code. Different courts held different views in the matter, and indeed in the same court the expression appears to have received different meanings with the passage of time. However, in Major S.S. Khanna Vs. Brig. F.J. Dillon, the point was considered by the Supreme Court at length and it was observed that the expression "case decided" was of comprehensive import and in its meaning could not be restricted to the entire proceeding before the court. Reference was made to the supervisory jurisdiction conferred upon the High Courts to correct errors of jurisdiction in proceedings taken by the subordinate courts. The law laid down in this case was subsequently explained in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, when the Supreme Court pointed out:

But it was not decided in Major S.S. Khanna''s case (supra) that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be 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 is clear then that it is only that order of the court which purports to decide some right or obligation in controversy between the parties which can give rise to a "case decided". Learned Counsel for the Defendant relies on Shiba Prasad Singh Vs. Nilabji Bali, There is no specific discussion in that case on the question as to what is a "case decided". The court appears to have assumed that the matter before it was a "case decided" and proceeded to determine whether the order complained of suffered from a jurisdictional error. The next case cited is Bir Babu Vs. Raghubar Babu and Others, . Here again, the Patna High Court was concerned with the question whether the impugned order was vitiated by an error of jurisdiction. It did not apply its mind to the question whether the order amounted to a "case decided''. So also in Bhaskar Manilal and Others Vs. Narandas Chunilal Soni and Others, to which reference has been made by learned Counsel for the Defendant. As regards Major S.S. Khanna''s case (supra) the Supreme Court held that the order deciding that the suit was not maintainable was a "case decided", and that was for the reason that the immediate effect of the order was to dispose of the claim of the Plaintiff. If the court decides to frame a certain issue or, as in the present case, decides not to frame an issue, it is not possible to say that any right in controversy between the parties to the suit has been the subject of adjudication. I am, therefore, of opinion that the revision petition must fail.

In the circumstances, it is not necessary to consider the other questions which have been raised in the revision petition.

The revision petition is dismissed with costs.