Gopi Nath, J. - (1.) This revision is directed against an order passed by the District Judge, Kanpur dated 15-9-1977 refusing to recall a witness for purposes of further cross-examination. The application (No. 105 C-2) which was moved for that purpose by the defendant-applicant was dismissed by the impugned order.
(2.) A preliminary objection has been raised that the revision is not maintainable as the order does not amount to deciding any case. Learned counsel for the applicant contended that in view of the amendment made to Section 115 of the Civil P.C. by Section 43 of the Civil P.C. Amendment Act 1976, hereinafter referred to as "the Amendment Act", the revision is maintainable. Section 115 of the Civil P.C. reads as follows :- "115. Revision--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: 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. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Explanation -- 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." Note The proviso to Sub-section (1) and Sub-section (2) of Section 115, Civil P.C., were added by the Amendment Act. According to the learned counsel, the proviso enlarges the scope of Section 115, and the effect of the amendment is that any order made in the course of a suit or other proceeding is open to revision. I am accordingly called upon to consider the true scope and effect of the proviso added to Section 115 (1), and in particular, the meaning and true construction of the word 'order' occurring in Clauses (a) and (b) of the proviso.
(3.) Section 115 C.P.C. deals with the power of the High Court in revision in regard to any case which has been decided by any court subordinate to it. The proviso to Sub-section (1) states that the High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or proceeding except where 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 the order if allowed to stand would occasion a failure of justice or cause an irreparable injury to the party against whom it was made.;