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Sabitri Debi and anr. Vs. Baikuntha Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 523 of 1978
Judge
Reported inAIR1979Ori140; 47(1979)CLT266
ActsCode of Civil Procedure (CPC) , 1908 - Sections 105(1) and 115
AppellantSabitri Debi and anr.
RespondentBaikuntha Das and anr.
Appellant AdvocateS.K. Dey and ;Y. Mohanty, Advs.
Respondent AdvocateR.N. Sinha, Adv.
DispositionRevision dismissed
Cases ReferredMadhu Limaye v. State of Maharashtra.
Excerpt:
.....in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. similarly the order, if allowed to stand, would not occasion a failure of justice or cause irreparable injury to the petitioners, because if the decision of the suit on merits goes against them, it would be open to them to canvass before the appellate court in an appeal from the decree in the suit that the prayer for sending the document to the expert was wrongly rejected. this clearly indicates that an erroneous interlocutory order which affects the decision of the case may be attacked in an appeal from the ultimate order or decree passed..........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.'this view was reiterated in a recent decision reported in air 1978 sc 47 : madhu limaye v. state of maharashtra.6. no doubt, under the explanation to the amended section 115 c. p. c., the expression any case which has been decided' includes any order made, or any order deciding an issue in the course of the suit or other proceeding. that does not mean that every interlocutory order passed during the progress of the suit is to be regarded as a case decided within the meaning of section 115 c. p. c. an interlocutory 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. in case.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This civil revision is directed against an order refusing to send a disputed document to the Handwriting Expert for examination.

2. One Gadadhar Das died leaving behind him a daughter named Agani. Petitioner No. 2 is the husband's brother of Agani. Petitioner No. 1 is the wife of petitioner No. 2. Opposite Party No. 1 Baikunthanath Das claims to be the adpoted son of Gadadhar. He filed Title Suit No. 99 of 1975 for eviction of the petitioners Nos. 1 and 2 from the suit land alleging that they were mere licensees in respect of the same.

The suit was resisted by the petitioners on the ground that the land in suit had been orally gifted to them by late Gadadhar Das in the year 1949 and they have acquired title to the same by adverse possession. They claimed to have constructed a house on the suit land after it was orally gifted to them.

3. In course of trial, the petitioners relied upon a post card letter dated 30-12-1953 alleged to have been written by late Gadadhar to the Baidyanath Misra admitting therein that he had orally gifted the land to the petitioners. The letter was marked as Ext. R. Opposite party No. 1 having disputed the genuineness of the signature of Gadadhar Das appearing on Ext. R, the petitioners applied for sending the document to an Expert for examination of the disputed signature and comparison of the same with the admitted signatures. The learned Subordinate Judge by his order dated 15-11-1978 rejected the prayer on the ground that the opinion of an Expert is not conclusive evidence and that the Court is competent to compare the disputed signature with the admitted signatures.

Aggrieved by this order, the petitioners have come up in revision.

4. Mr. Sinha, the learned counsel appearing for the opposite parties raised a preliminary objection to the effect that by the impugned order no case has been decided within the meaning of Section 115, C.P.C. and as such the civil revision is not maintainable in law,

5. The question as to what is 'a case decided came up for consideration before the Supreme Court in the case of Baladevdas v. Filmistan Distributors (India) Pvt. Ltd. AIR 1970 SC 406 wherein it was laid down as follows (at p. 410):

'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.'

This view was reiterated in a recent decision reported in AIR 1978 SC 47 : Madhu Limaye v. State of Maharashtra.

6. No doubt, under the Explanation to the amended Section 115 C. P. C., the expression any case which has been decided' includes any order made, or any order deciding an issue in the course of the suit or other proceeding. That does not mean that every interlocutory order passed during the progress of the suit is to be regarded as a case decided within the meaning of Section 115 C. P. C. An interlocutory 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. In case every interlocutory order is held to be revisable by the High Court the very purpose of enacting the provisions of Section 115, C. P. C. will be frustrated.

7. By an order refusing to send a document for Expert's examination no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter relating to procedure. Since no right or obligation of any of the parties is determined by the impugned order, it would not, in my opinion, come within the ambit of the expression 'case which has been decided.'

8. It is next contended by Mr. Sinha that even assuming that by the impugned order a case may be said to be decided, yet it would not be revisable in view of the proviso to Section 115 C. P. C. The proviso runs as follows;

'Provided that the High Court shall not, under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.'

9. If the impugned order had been made in favour of the petitioners, that would not have finally disposed of the suit. Similarly the order, if allowed to stand, would not occasion a failure of justice or cause irreparable injury to the petitioners, because if the decision of the suit on merits goes against them, it would be open to them to canvass before the appellate court in an appeal from the decree in the suit that the prayer for sending the document to the Expert was wrongly rejected. I would refer in this connection to Section 105 C. P. C. which provides that when 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. This clearly indicates that an erroneous interlocutory order which affects the decision of the case may be attacked in an appeal from the ultimate order or decree passed in the suit. The revisional powers should not be exercised unless it is found that the party approaching the Court under Section 115, C.P.C. has no other remedy open to him for redressal of his grievance.

10. In view of the foregoing discussions, the revisional application is not maintainable. It is accordingly dismissed. There will be no order as to costs.


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