ASHOK PAPER MILLS LTD Vs. SANGHI TEXTILES LTD

JUDGEMENT

(1.) This revision under Section 115 of the CPC is directed against the order dated 25-2-2003 passed in Title Suit No. 61/99 by the learned Civil Judge (Sr. Division), Bongaigaon. THE FACTS :

(2.) On 28-7-94, the respondent plaintiff Sanghi Textiles Limited instituted Title Suit No. 61/99 praying for declaration that the re-possession of the mill is illegal and for permanent injunction and an interim injunction was sought for but the said injunction was rejected and the matter came up before this Court in F.A.O. 3/2000, wherein this Court directed for evaluation of the assets of the mills and accordingly a Commissioner was appointed and the Commissioner submitted an inventory. The matter was sent back by the High Court with the direction to the trial Court to dispose of the suit within a period of six months vide order dated 1-10-2002 in C.R.P. 20/2002. Thereafter, after the completion of the pleadings and filing of the list of documents and witnesses, the plaintiff filed affidavits of four witnesses as evidence on 25-2-2003 and the present petitioner defendants filed an application seeking time for cross-examination. The defendant also filed an' application for appointment of the Commissioner for valuation of the plant and machinery and the said application was rejected by the trial Court. On 19-4-2003 the defendant filed an application seeking time to prefer a transfer petition before the District Judge and a leave petition against the order dated 25-2-2003 and hence the present revision, wherein the petitioner has challenged the order dated 25-2-2003, whereby the application under Order 26, Rule 9 read with Section 151, CPC for appointment of an approved valuer to fix the valuation of the plants and machineries was rejected by the trial Court. The trial Court after hearing both sides rejected the above prayer on the ground that there was an inventory prepared for plants and machineries as per the direction of our High Court and the said inventory was prepared by the appointed Commissioner and submitted report which has already been accepted by this Court. Further the High Court while directing preparation of inventory, had rejected the prayer of the appellant for valuation of the plant and machineries observing that it is not necessary to order for valuation of the plant and machineries etc. In view of the earlier direction and findings of this Court, the trial Court rightly rejected the application of the defendants more so, and the defendants have already listed the Surveyor as a witness for the defendants. We, therefore, hold that in view of the provisions of Section 115, C.P.C. and considering the fact that the impugned order rejecting the application has not disposed of the suit or the proceeding and hence the revision does not lie. Shri A. S. Choudhury, learned Sr. Advocate appearing for the revision petitioner has also challenged the filing of the affidavit of four witnesses on behalf of the plaintiff as provided under Order 18, Rule 4, C.P.C. As stated above, the plaintiff have filed 4 affidavits towards the examination-in-chief of their four witnesses and the Court asked the defendants to cross-examine them. Order VIII, Rule 4(1) and (2) reads as follows :

(3.) Shri Choudhury, however, submits that in view of the provisions of order VIII, (XVIII) Rule 5, C.P.C. the provisions of Rule 4 or Order VIII (XVIII) are not applicable in the present case as the Title Suit 16/99 pending in the Court is appealable one. Order V reads as follows :