Skip to content


Harvinder Kaur and anr. Vs. Godha Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1198 of 1977
Judge
Reported inAIR1979P& H76
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 26, Rule 9
AppellantHarvinder Kaur and anr.
RespondentGodha Ram and anr.
Cases Referred(Punj & Har) and Mangal Singh v. Plara Lal
Excerpt:
.....stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact,..........had been wrongly placed and while deciding that question it was held that such an order would he revisable.12. in view of the aforesaid discussion, we hold that no revision would lie against an order passed under o. 26, r. 9 and the view taken in m/s. mohinder kumar rajinder parkash ((1976) 78 pun lr 280); dalmir singh alias dalmira 1976 rev lr 654 (punj & har) and mangal singh v. plara lal, (1971) 73 pun lr 531 cases lays down the correct law.13. before parting with the judgment, it may, however, be made clear that it cannot as a general rule be laid down that in no case a revision would lie against an interlocutory order passed under any other provision of o. 26, and that it would be on the facts of each case that it will have to be found out whether the interlocutory order, against.....
Judgment:

Prem Chand Jain, J.

1. On the reference that has been made by the learned single Judge vide his order dated May 3, 1978, the question of law that requires determination may be formulated thus-

'Whether revision lies against an order passed under O. 26, R. 9 of the Civil P. C. refusing to appoint a Local Commissioner?'

2. The reference has been made as in the opinion of the learned Judge there appeared to be a conflict of opinion on this aspect of the matter. In Dalmir Singh alias Dalmira v. Sant Parkash, Civil Revision No. 1459 of 1975, decided on Sept. 21, 1976,** R. S. Narula, C. J. (as he then was), on the basis of the judgment of Pattar J., in Mohinder Kumar Rajinder Parkash v. Basheshar Nath, (1976) 78 Pun LR 280, held that no revision lay against such an order. On the contrary, S. C. Mital J., in M/s, Goverdhan Das Gopi Nath v. Smt. Amolak Raj, 1975 Cur LJ 744 (Punj), has held that an order refusing to issue a commission is revisable under S. 115 of the Civil P. C.

{**Reported in 1976 Rev LR 654 (Punj and Har)}

3. Mr. Sarin, learned counsel for the petitioners, contended that a revision lay against an order refusing to appoint a Ideal Commissioner and that the view taken in M/s. Goverdhan Das Gopi Nath's case was the correct view and deserved to be upheld. Besides relying on the reasoning given in M/s. Goverdhan Dass Gopi Nath's case, the learned counsel relied on the explanation added to Section 115 of the Civil P. C., which is in the following terms:--

'In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'

On the strength of the aforesaid explanation, it was contended by Mr. Sarin that the order declining to appoint a commission was passed in the course of a suit and such an order fell within the expression 'case decided'.

4. After hearing the learned counsel for the parties, we find ourselves unable to agree with the contention of the learned counsel.

5. S. 115 consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises, i.e., there is a case decided by a Subordinate Court in which no appeal lies to the High Court; the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of 'any case which has been decided'. The expression lease decided' was not defined in the Code, with the result that there was a conflict of judicial decisions on the question whether the expression 'cease decided' included interlocutory orders or not. Though this conflict was resolved by the Supreme Court in 8. S. Khanna v. P. J. Dhillon, AIR 1984 SC 497, yet in order to clear all doubts about the maintainability of a revision against an interlocutory order, the explanation has been added by the Amendment Act in the year 1976. However, in the instant case, the explanation by itself is of no help as it has still to 'be decided whether in view of the provisions of the explanation an order declining to appoint a commission would be revisable or not? In our view, in the circumstances of this case, the answer has to be in the negative.

6. Before the amendment of S. 115 in the year 1976, the power of revision was exercisable subject to the restriction imposed in cls, (a), (b) and (c) of sub-see. (1). As earlier observed, the words 'case decided' had not been de-fined and for that reason, a conflict of judicial decisions in respect of interpretation of these words had crept in. The intention of adding the explanation was only to define the words 'case decided', i. e., that a revision would lie against an order passed during the course of a suit or other proceeding. But the explanation cannot be given this meaning that every order made in the course of a suit or other proceeding would be revisable. Even, Mr. Sarin, learned counsel, during the course of arguments, did not go to that extent that every order passed in the course of a suit or other, proceeding would he revisable under S. 115 of the Code.

7. In this situation, it has now to he found out as to which type of interlocutory orders would he revisable by this Court in exercise of its powers under S. 115 of the Civil P. C.? To this question, the answer is available from the judgment of their Lordships of the Supreme Court in Baldevdas Shivial v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406, wherein after considering S. S. Khanna's case (AIR 1964 SC 497) it was observed thus (at p. 410):--

'But it was not decided in S. S. Khanna's case, (1964) 4 SCR 409: (AIR 1964 SC 497) 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 S. 115 of the Civil P. C.'

8. In the light of the aforesaid observation, without dilating any more on this subject, the meaning that can be given to the explanation is that an order made in the course of a suit or proceeding would he revisable only when it determines or adjudicates some right or obligation of the parties in controversy. Thus, a revision would lie against an interlocutory order only if it determines or adjudicates some right or obligation of the parties in controversy. However, even after the satisfaction of the aforesaid test the power of revision would he exercisable by this Court subject to the limitations put under sub-see. (1) and the proviso to S. 115 of the Civil, P. C.

9. Adverting to the facts of the pre-sent case, we find that the trial Court has only rejected the application for the issuance of a commission on the ground that issue No. 3 could be proved by producing the relevant record and that demarcation was not necessary. From these observations, it is clear that the learned Subordinate Judge did not decide any issue nor did he adjudicate for the purposes of the suit some right or obligation of the parties in controversy.

10. Adverting to the case law, reference may he made to M/s. Goverdhan Das Gopi Nath's case (1975 Cur LJ 744) (Punj) the only judgment on which reliliance had been placed by Mr. Sarin and which decision necessitated the reference to the larger Bench. In view of our aforesaid discussion, we are, with utmost respect, unable to agree with the view taken in that decision. The learned Judge, on the basis of the judgment of the Supreme Court in S. S. Khanna's case (AIR 1964 SC 497) and a Full Bench judgment of this Court in M/s. Sadhu Ram Ball Ram v. M/s. Ghansham Dass Madan Lal, AIR 1975 Punj & Har 174, arrived at the conclusion that the order rejecting the application of the defendant for examining two witnesses residing in Bombay on commission falls with-in the expression 'case decided'.

11. As has already been observed in the earlier part of the judgment, S. S. Khanna's case stands explained by their Lordships of the Supreme Court in Baldevdas Shivlal's case (AIR 1970 SC 406) and in view of the test laid down therein, the order of the Court should result into adjudication of some right or obligation of the parties in controversy during the course of a suit or other proceeding. The order declining to issue a commission of the type mentioned in M/s. Goverdhan Das Gopi Nath's case does not satisfy that test. It may further be observed that the facts of M/s. Sadhu Ram Ball Ram's case were different as in that case the onus of an issue had been wrongly placed and while deciding that question it was held that such an order would he revisable.

12. In view of the aforesaid discussion, we hold that no revision would lie against an order passed under O. 26, R. 9 and the view taken in M/s. Mohinder Kumar Rajinder Parkash ((1976) 78 Pun LR 280); Dalmir Singh alias Dalmira 1976 Rev LR 654 (Punj & Har) and Mangal Singh v. Plara Lal, (1971) 73 Pun LR 531 cases lays down the correct law.

13. Before parting with the judgment, it may, however, be made clear that it cannot as a general rule be laid down that in no case a revision would lie against an interlocutory order passed under any other provision of O. 26, and that it would be on the facts of each case that it will have to be found out whether the interlocutory order, against which a revision is sought to be filed, has adjudicated for the purposes of the suit some right or obligation of the par-ties in controversy or not.

14. For the reasons recorded above, this revision petition fails and is dismissed, but in the circumstances of the case, we make no order as to costs. The parties, through their learned counsel, have been directed to appear before the trial Court on Nov. 7, 1978.

15. Revision dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //