Vidya Sagar Sood vs Amar Chand and Another

Kamlesh Sharma, J.—This Revision petition is directed against the order dated 16th July, 1990 passed by the Senior Sub Judge, Kinnaur at Rekong Peo, whereby the application of the Petitioner-defendant for sending the documents, Ex.D-2 to Ex.D-6, Ex.D-8, Ex.D1 and Ex.D12 to Ex.D15 to the finger Prints Expert was rejected.

The Petitioner was Defendant No. 1 in a suit filed by Plaintiff-respondent No. 2 against the Petitioner and Defendant- Respondent No. 1. The suit is for declaration that Plaintiff- Respondent No. 2. has a natural right over the land comprised in Khasra No. 347/1 measuring 0-00-19. Hectares situated in Mohal Rekong Peo, Tehsil Kalpa, District Kinnaur and also for consequential relief of permanent prohibitory injunction restraining the present Petitioner-defendant and Defendant- Respondent No. 2 from digging the said land and removing earth and boulders therefrom.

The Defendant-respondent No. 1 in his written statement has admitted the claim of the Plaintiff-respondent No. 2 that it was agreed between them to leave one meter area in between the building of Plaintiff Respondent No. 2 and the suit land as set back but he has denied rest of the allegations made in the plaint, On the otherhand, the Petitioner-defendant in his written statement has denied the claim of the Plaintiff Respondent No. 2 in respect of such agreement and also the allegations of digging the suit land which had caused any damage to the building of Plaintiff-respondent No. 2. According to the Petitioner- Defendant he had only removed the debris thrown on the suit land by Plaintiff-respondent No. 2 at the time when he constructed his building and has submitted that he is entitled to the expenditure and damage suffering by him for doing so. He has claimed that he has been occupying the hut/house built over the suit land where he is doing his business.

From the pleadings of the parties as well as from the issues framed by the trial court, it is clear that so far ownership and possession of the land in dispute is concerned, there is no dispute between the Plaintiff-respondent No. 2 on the one side and the Petitioner-defendant and Defendant-respondent No. 1 on the other. The document Ex.D-2 to Ex.D-6,Ex.D-8,Ex.D10 and Ex.D-12 Ex.D-15 were put up by the Petitioner-defendant to Defendant- Respondent No. 2 when he appeared in the cross-examination. Defendant - Respondent No. 1 has denied the execution of these documents by him by stating that these do not bear his thumb marks. At this, the Petitioner-defendant moved an application dated 15th December, 1989 praying that these documents be sent to the Finger Prints Expert for comparison with admitted thumb marks of Defendant-respondent No. 1. This application was rejected on the ground that these documents are not relevant for the decision of issues involved in the suit,

Ms. Devyani Kuthiala appearing vice learned Counsel for the Plaintiff-respondent No. 2 has raised an objection at the very outset that the Revision Petition is not maintainable as neither the impugned order amounts to case decided nor it comes within the purview of any of the sub-clauses of Sub-section (1) of Section 115 CPC She has also drawn my attention to Order 13 Rule 3 CPC to submit that the trial court had the jurisdiction to reject these documents on the ground that these were not relevant and if its decision is wrong, it can''t be agitated in the present Revision petition, instead the Petitioner-defendant can take it as one of the grounds in the appeal if ultimately the decision of the trial Court goes against him. For making these submissions, she had relied upon Sh. M.L. Sethi v. Sh. R.P. Kapur AIR 1979 SC 2379, Sabitri Debi and Another Vs. Baikuntha Das and Another, and Ram Dass Vs. Sudarshan Kumar Jain,

On the other hand, Sh Lalit Sharma vice learned Counsel for the Petitioner, has urged that the trial Court has acted in the execise of its Jurisdiction illegally and with material irregularity in not sending the documents to the Finger Prints Expert to form its opinion in respect of their genuineness. For-making this submission, he has drawn my attention to Section 45 of the Indian Evidence Act and relied upon The State (Delhi Administration) Vs. Pali Ram, According to him, if the impugned order is not aside it would occasion a failure of justice and cause irreparable injury to the Petitioner-defendant. This argument has been raised to rejected. Neither Section 45 of the Indian Evidence Act is attracted nor the judgement in State (Delhi Administration) v. Pali Ram (supra) is applicable to the facts and circumstances in the present case. Since the documents in question are no relevant to the controversy between the parties, the trial Court has rightly refused to send them to the finger Printes Expert. This Court has persued these documents and found that these pertain to some transaction between the Petitioner-defendant and Defendant Respondent No. 1 in respect of receipt of Rs. 6,000/- as loan by Defendant-respondent No 1 from the Petitioner-defendant and also that if Defendant- Respondent No. 1 falls to pay back the loan amount, he will sell 6 Biswas of his land out of the suit land comprising in Khasra No. 1293/601 (New Khasra Nos. 347/1 and 365/1). Apparently these transactions have nothing to do with the controversy involved in the suit, As such, these documemts are not relevant.

The preliminary objection raised by Ms. Devyani Kuthiala, learned Counsel, that the Revision petition is not maintainable deserves to be upheld. In Shri M.L. Sethi v. Sh. R.P. Kapur (Supra), the Supreme Court has clearly laid down that the jurisdiction of the High Court u/s 115 CPC is limited one. This section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. Before exercising jurisdiction, the High Court is to satisfy itself on three matters,(a) that the order of the Subordinate court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction and (c) that in exercising the jurisdiction; the court has not acted illegally or with material irregularity. By illegality, it means, in exercise of its jurisdiction, the Court has passed an order which is in breach of some provision of law. Similarly, by material irregularity it mean that in the exercise of its jurisdiction, the Court has passed an order by committing some error of procedure which is material and capable of affecting the ultimate decision. If the High Court is satisfied on these three matters, it has no power to interfere because it differs from the conclusion of the subordinate court on question of fact or law. Applying these principals in the present case, by refusing to send the documents, which were not found relevant to the controversy involved in the suit the trial court in the execise of its jurisdiction, has not acted illegally or with material irregularity.

Further, for exercising its revisional jurisdiction u/s 115 C. P.C., the first thing to be examined by the High Court is whether by the order sought to be revised, the case has been decided. Any order can be said to be "a case decided" if it determines some right or obligation of the parties for the purpose of the suit (See: Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, By an order refusing to send the documents to the Finger Prints Expert, no right or obligation of the parties for the purpose of the suit has been adjudicated upon by the trial court. It is a matter relating to procedure (See: Sabitri Debi and Another Vs. Baikuntha Das and Another, and Ram Dass Vs. Sudarshan Kumar Jain, Ms. Devyani Kuthiala is also right in submitting that the trial court has exercised its jurisdiction under Order 13 Rule 3 CPC by rejecting the documents which it considered Irrelvant. The trial court has also recorded the grounds of its rejection which are valid as discussed above.

On the other hand there is no force in the contention raised by Sh. Lalit Sharma that if the impugned order is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the Petitioner-defendant because if ultimately the decision goes against him, he may raise it as one of his grounds of appeal in the appellate Court while challenging the decree passed by the trial court. u/s 105 Code of Civil Procedure, it is provided that 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 filed against the decree passed in the said case. This Court will restrain to exercise its revisional jurisdiction u/s 115 CPC in view of this provision also as the Petitioner Defendant has the remedy for redressal of his grievance if any. Above all, the proviso to Sub-section (1) of Section 115 CPC will come into operation if the High Court comes to the conclusion that by the impugned order, a Court has decided a case and any of the three conditions as laid down in Sub-section (1) of Section 115 CPC is satisfied. In the present case, neither there is a case decided nor any illegality of material irregularity has been committed by the trial Court in the exercise of its jurisdiction.

As a result of the above discussion, there is no merit in the revision petition and it is dismissed. The parties are left to bear their own costs.