- (1.) A. N. Varma, J. The opposite party No. 1, i. e. the Plaintiff before the trial Court, instituted a Suit, being Suit No, 209 of 1986, for specific performance of contract against the petitioners, i. e. Defendants. During the pendency of the proceedings the petitioners preferred an application for issuance of a Commission. The trial Court vide its order dated 1-7-2004 rejected the said application, against which the petitioners approached the District Judge in Revision under Section 115 of C. P. C. , who vide its judgment and order dated 15-10-2004 dismissed the same on the ground of maintainability. It is against the said judgment and order that the petitioners have approached this Court through the instant writ petition.
(2.) I have heard Sri H. S. N. Tripathi, learned Counsel for the petitioners as well ash Sri P. K. Jain, learned Counsel for the opposite party No. 1. Sri Tripathi submitted that the learned Courts below committed a manifest error in dismissing the Revision on the ground of maintainability. As per his submission the application which was preferred for issuance of Commission was for the purpose to ascertain as to whether or not the bricks which were supplied to the opposite party No. 1, were from the brick-klin of the petitioner and the money which had been paid to them pertained to the cost of the said bricks and not as an advance in respect of the alleged agreement. In support of his case he placed reliance upon (a) 2000 (2) JCLR 462 (SC) : 2000 JIR 774 (SC) : JT 2000 (7) SC 379, Shreepat v. Rajendra Prasad and Ors. , (b) 2004 (2) JCLR 400 (SC) : JT 2003 (6) SC 465, Surya Dev Rai v. Ram Chander Rai and Ors. , (c) 2002 (49) AIR 110, Smt. Soni v. District Judge, Allahabad and Ors. , (d) 2003 (2) JCLR 756 (SC) : 2003 (3) AWC 2198 (SC), Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers and Ors. In opposition Sri P. K. Jain submitted that the order rejecting an application for issuance of Commission is not revisable as it is not a case decided within the meaning of Section 115 C. P. C. As per his submission the learned Court below was perfectly justified in not interfering with the order dated 1- 7-2004 as the same neither adjudicated upon an issue, nor decided any rights of the parties. In support of his case he placed reliance upon 1994 (2) Allahabad Rent Cases 204, Munshi Lal Agarwal and Ors. v. IXth A. D. J. Lucknow and Ors. and 1990 (1) Allahabad Rent Cases page 8, Hajari Lal v. Siya Saran and Ors. He further submits that in a Suit for specific performance of contract with regard to supply of the bricks can be established by other evidence and not by issuing the Commission and getting it ascertained through Commission.
(3.) SECTION 115 of C. P. C. , as amended and applicable to State of U. P. reads as follows: "115. Revision.- The High Court, in cases arising out of original suits or other proceedings (of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification), and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by lay; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegality or with material irregularity; the Hi or the District Court, as the case may be, may make such order in the case as it thinks fit : Provided that in respect of cases arising out of original suits or other proceeding of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section : Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where, - (i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same ). Explanation.- In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceedings. " A perusal of the aforesaid provision shows that the High Court in cases arising out of original Suits or other proceedings and District Courts in any other cases including a case arising out of original Suits and other proceedings may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court.;