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Har Vilas Vs. Kalyan Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 536 of 1985
Judge
Reported in1985(2)WLN474
AppellantHar Vilas
RespondentKalyan Prasad and ors.
DispositionPetition allowed
Cases ReferredGhewar Chand v. Gaj Singh (supra). The
Excerpt:
.....to produce the expert to prove ex. a/3. for substantiating the defence advanced by the defendant.; revision allowed - - 6. the learned counsel for the defendant submitted that it is a case where the facts could disclose that if the mistakes committed by the learned lower court is not corrected, it would occasion failure of justice, or cause irreparable injury to the defendant. on the other hand, the learned counsel for the plaintiff while contesting the revision petition raised preliminary objections that no revision lay against the impugned order because no case, of failure of justice or irreparable injury was made out and that the revision would be barred on correctness of the impugned order can be assailed under section 105, cpc in an appeal against the decree by setting forth a..........case, it is liable to be attacked in appeal from the ultimate judgment or, decree passed in the suit and the revisional powers should not be exercised unless it is found that the party approaching the high court under section 115, cpc has no other remedy available to him for redressal of his grievance. he relied on sabitri debi v. bai kuntha air 1970 ori 140 in order to substantiate his argument. in order to meet the argument advanced by the learned counsel for the plaintiff-respondent, mr. gupta cited ghewar chand v. gaj singh 1982 rlw 209 and yaqoob ali v. haji taj khanji ibrahimji 1982 wln 666. on the basis of these two authorities of this court mr. gupta submits that so far as this court is concerned, there is now no room for controversy that the high court is empowered to rectify.....
Judgment:

Panna Chand Jain, J.

1. This is a revision petition by the defendant petitioner under Section 115 of the Code of Civil Procedure against the order dated 12th July, 1985, passed by the learned Munsiff Magistrate to Karauli, in Civil suit No. 27 of 1975, dismissing the application dated 16th February, 1985, by which the defendant desired to examine the Handwriting Export to prove the document Ex. A-3 alleged to bear the signature of the plaintiff's father Kishan Lal.

2. Notice has been taken by the defendant by entering upon a caveat and the parties desired that the revision petition be disposed of at this stage, as such, this revision petition is being decided at the admission stage.

3. The admitted facts of the case are that in a suit for injunction, possession and partition, filed by the plaintiff Kalyan Prasad against the defendant petitioner arid others in the Court of the learned Munsiff Magistrate Karauli, the evidence of the plaintiff was closed and the defendant was aducing his evidence, During the course of his evidence he moved an application, by which he desired to call the Handwriting Expert in order to prove the signature of Kishan Lal, father of the plaintiff on the document Ex. A/3, on which the case of the defendant is totally based. The defendant's case is that the purchased the imputed immovable property from Shri Ramji Lal and his father late Shri Kishan Lal, for which they executed an agreement to sell in favour of the defendant. This document is Ex. A 3. It is said that the executant of this document is late Shri Kishan Lal. The plaintiff has denied the document Ex. A/8. As such, it became essential for the defendant to prove the signature of the executant late Shri Kishan Lal who is the father of the plaintiff. In order to prove the signature of late Shri Kishan Lal, defendant, also summoned one more document, which is Ex. A/17, which is also alleged to bear the signature of Kishan Lal. It may be stated here that the plaintiff has admitted Ex. A/17. Ex. A/17 is the certified copy of the plaint bearing the signature of Kishan Lal. The original file was also summoned along with the certified copy.

4. The learned Munsiff rejected the application on the ground that the defendant was responsible for delaying the matter in as much as the case remained pending for defendant's evidence for the last two years, and it was for the purpose of delaying further proceedings of the suit that the application was moved. The suit, in fact, was instituted in the year 1975. The another ground which was given by the learned Munsiff was that the name of the expert was not disclosed in the application. It was also pointed out that it was not mentioned in the application as to whom the document is to be sent for examination. In the fact and circumstances of the case, the learned Munsiff dismissed the application.

5. Aggrieved by the order dated 12th July, 1985, passed by the learned Munsiff, Karauli, the defendant has filed this revision petition before this Court.

6. The learned counsel for the defendant submitted that it is a case where the facts could disclose that if the mistakes committed by the learned lower Court is not corrected, it would occasion failure of justice, or cause irreparable injury to the defendant. He further submitted that the grounds given by the learned lower Court are not reasonable. On the other hand, the learned counsel for the plaintiff while contesting the revision petition raised preliminary objections that no revision lay against the impugned order because no case, of failure of justice or irreparable injury was made out and that the revision would be barred on correctness of the impugned order can be assailed under Section 105, CPC in an appeal against the decree by setting forth a ground of, objection in the memorandum of appeal. The learned counsel further Contended that the impugned order does not fall within the meaning of the expression 'case decided' as it has not adjudged any right or obligation of the parties in controversy. In short, his main submission is that even if an interlocutory order is erroneous which effects the decision of the case, it is liable to be attacked in appeal from the ultimate judgment or, decree passed in the suit and the revisional powers should not be exercised unless it is found that the party approaching the High Court under Section 115, CPC has no other remedy available to him for redressal of his grievance. He relied on Sabitri Debi v. Bai Kuntha AIR 1970 Ori 140 in order to substantiate his argument. In order to meet the argument advanced by the learned counsel for the plaintiff-respondent, Mr. Gupta cited Ghewar Chand v. Gaj Singh 1982 RLW 209 and Yaqoob Ali v. Haji Taj Khanji Ibrahimji 1982 WLN 666. On the basis of these two authorities of this Court Mr. Gupta submits that so far as this Court is concerned, there is now no room for controversy that the High Court is empowered to rectify an order of subordinate court at any stage of the suit or proceedings and that where the allegation itself is not appealable to the High Court directly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.

7. In Ghewar Chand v. Gajsingh 1982 RLW 209, Hon'ble M.C. Jain, J. while considering the scope and ambit of s. 115, CPC observed as follows: 'Even when interlocutory order does not adjudicate or determine any rights or obligations of the parties in controversy in the suit, still, such an interlocutory order may occasion failure of justice or cause irreparable injury and as, such, it can be said that such an order is revisable. The expression 'any case which has been decided' includes 'any order made'. It is true that the expreesion 'any order made' includes within its embrace all sorts of orders. Such a vide connotation of course cannot be given to the expression 'any order'. An order which may ultimately affect the decision of the suit or which may ultimately affect the right of the party, though it is not adjudicating the right, may, in my opinion, be covered under the expression 'any order'.

8. In Yaqoob Ali v. Haji Taj Khanji Ibrahimji (supra), a Division Bench of this Court had again considered the meaning of the expression 'case decided' and considered and under what circumstances an interlocutory order can be interfered by the High Court under Section 115, CPC. In this case, the learned Division Bench considered two cases decided by this Court. One was Ram Chandra v. Laxmi Kumar , decided by Hon'ble Lodha J, and another case, Narain Lal v. Someshwar Dayal S.B. Civil Revision No. 62 of 1977, decided on Feb. 6, 1979, by Hon'ble M.L. Joshi, J. The learned Division Bench did not agree with the decisions given in the said cases and observed as under:

Apart from the object behind Section 115, CPC is to provide means to an aggrieved party to obtain correction or rectification of non-appealable order through this power has to be exercised on the fulfilment of, all the conditions laid down in it, if the interpretation which has been taken in Narainlal's case (supra) and Ramchand's case (1) is accepted, that will, our opinion, frustrate the very purpose and object of Section 115, CPC. Apart from this, it should also not be lost sight of that amongst others, the Explanation to Section 115 unambiguously lays down that in Section 115, expression 'any case which has been decided' includes any order made in the course of a suit or any other proceedings. This Explanation is more than clear that 'case decided' means even a part of case and as such on the fulfilment, of the conditions laid down in proviso (b), intereference can be made with the order refusing to record evidence. It follows from what has been discussed above that if any jurisdictionl error has been committed by the subordinate court in the course of a suit or other proceedings, it can be corrected in revision provided that order has occasioned failure of justice or caused irreparable injury to the party against whom the order has been made.

9. While making the above referred observations, the learned Division Bench also held that the mere fact that the said interlocutory order can be challenged by setting forth objetion in a memo of appeal against the decree under Section 105, CPC would not be sufficient for not invoking the revisional jurisdiction under Section 115, CPC on the ground that as that order can be challenged by setting forth ground of objection in the memo of appeal against the decree in an appeal, it cannot be said occasion a failure of justice or to have caused irreparable injury to the party against whom it was made.

10. In view of the aforesaid decisions of this Court there remains no room for controversy that the High Court is empowered to rectify an order of subordinate court at any stage of the suit or other proceedings and that the revision is no bar merely because the correctness of such order can be challenged under Section 105, CPC. It would also be clear that by, adding explanation to Section 115, CPC the scope and ambit of a revision before the High Court have been widened and any limitation put on the expression 'any case which has been decided' in Section 115, CPC in some of the cases would no longer be held good view in the light of the amendment of the said Section. It if further clear that even when an interloutory order may not adjudicate or determine any rights or obligation of the parties to the suit, but in case such an order may occasion failure of justice or cause irreparable loss the order could become revisable.

11. The case of Sabatri Debi v. Bai Kuntha : AIR1979Ori140 , cited by the learned counsel for the respondent has considered by this Court in Ghewar Chand v. Gaj Singh (supra) and the learned Single Judge did not agree with the proposition of law laid down therein. I am in agreement with the proposition of law laid down in Ghewar Chand v. Gaj Singh (supra). The judgment of the Orissa High Court was also contrary to the decision taken by the Division Bench of this Court in the case referred to above. Thus, the case of Orrisa High Court does not help the plaintiff-respondent in any way.

12. Thus, after considering the scope and ambit of a revision it becomes necessary to see as to whether the impugned order would in any may occasion failure of justice or cause irreparable loss in view of the conditions laid down in Clause (b) of proviso to Sub-section (2) of Section 115, CPC. In the instant case, the case of the defendant is entirely based on document Ex. A/3. It is, thus, necessary for the defendant to prove this document to get success in the case. It is true that there are many ways of proving a document. The signature of the executant can also be proved in a number of ways, i.e. by producing a person who has seen the executant signing the document or by adducing the evidence of the persons who are conversant with such handwriting, or the signature may be proved by producing an expert. In such cases, the Court is to consider the totality of the circumstances to arrive at a conclusion about the handwriting or signature of the executant on the document. Thus, examination of the expert for proving signature of Kishan Lal on Ex. A/3 was quite relevant and reasonably important to the defendant. It is a cardinal principle of jurisprudence that an opportunity should be given to the party to defend his case. In case, a party is deprived of this right it is likely to result in failure of justice and likely to cause irreparable loss to the party against whom such an order is passed. Interference, thus, can be made by this Court under Section 115, CPC if an order refusing to record evidence is passed, or where the effect of the order could be a multiplicity of litigation or to prolong trial or irregularity in the procedure is patent or where the order works manifest injuries or the order is needed to plug the error which if allowed to remain is likely to cause delay in final disposal of cases on account of remand and results in failure of justice. The learned lower Court did not allow the defendant to produce an expert and get the documents examined by him only on the ground that his name was not disclosed and while passing the order the learned lower Court was also moved by the fact that the defendant was responsible for delaying the proceedings of the suit. I am not at all convinced by the reason assigned by the learned lower Court as the name of the expert should have been asked at any time. As regards delay, the criticism of the Court does not appear to be fair as the defendant was adducing evidence and it was during his evidence that such an application for examination of expert was moved. It would have been in the interest of justice if the defendant would have been allowed to produce the expert to prove Ex. A/3, for substantiating the defence advanced by the defendant.

13. In the facts and circumstances of the case, I allow this revision petition and set aside the order passed by the learned Munsiff dated 12th July, 1985, and direct the defendant to disclose the name of the Handwriting Expert and to furnish his address. The summons will be given dasti to the defendant to produce Handwriting Expert and prior to it the document Ex. A/8 and Ex. A/7 will be sent to the handwriting expert for examining them and preparing report. It is further directed that the learned lower Court shall examine the Handwriting Expert within two months of the receipt of this order. The learned lower Court will accordingly fix a date for this purpose. In case, the Handwriting Expert is examined, the case of the plaintiff for rebutting the evidence may be considered.

14. Both the parties shall bear their own costs.


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