K.C.AGARWAL,J. - (1.) THIS is a plaintiff's revision challenging the order of the learned Addl. District Judge, Agra dated October 9, 1971, admitting additional evidence in the appeal under Order 41, Rule 27, C.P.C. The suit filed by the appellant for declaration of his rights to get possession was decreed by the trial court. Aggrieved by the decree of the trial court, the defendant preferred an appeal before the lower appellate court. She, thereafter, filed an applica­tion under Order 41, Rule 27, C.P.C. for the admission of certain documentary evidence in this appeal. The application was contest­ed by plaintiff. The lower appellate court being of the opinion that the admission of these papers was essential in the ends of justice al­lowed the same. It is against this order that the present revision has been filed.
(2.) THE first question that arises for decision in this revision is about its maintainability. The power of the High Court under S. 115 is ex­ercisable in respect of 'any case which has been decided'. The sub­mission of the learned counsel for the respondent was that by decid­ing to take additional evidence in the appeal the court below has not decided any case, either the whole or any part of it and as such the revision is incompetent. It is true as laid down by the Supreme Court in S. S. Khanna v. F. J. Dhillon A.l.R. 1944 S.C. 497 that the scope of the words, 'case decided' cannot be restricted to the entire suit and that it may include part of the case. But non the less as held in Baldevdas v. Filmistan Distributors A.I.R. 1970 S.C. 406 it may not be correct to hold that every order which a court is required to pass from time to time in a suit, that can be regarded as a case decided. A case can be said to have been decided when any rights or obligations of the parties is adju­dicated upon. By permitting a party to file evidence in the appeal, no court decides any question "relating to right or obligation of the parties in controversy. Admission of evidence even in appeal does not decide any right of the parties. By evidence the truth of a fact which is submitted to investigation is established or disproved. That is the precise reason that a rule of evidence is defined as a principle which expresses the mode or manner of proving the fact and circum­stances upon which a party relies to establish a fact in dispute. Hence by deciding to take evidence in the appeal, the court below, in the instant case, cannot be said to have adjudicated upon any of the rights of The parties. There was, in fact, neither any occasion for the court below to do it nor was it done. As observed above new evi­dence admitted in the appeal will help in ascertaining the truth or point in issue, either on the one side or the other. Thus to me, it appears that the admission of additional evidence in the appeal can­not amount to case decided. I am supported by a decision of this Court reported in Devi Singh v. Brij Basi 1975 A.L.R. 372. Counsel for the ap­plicant, however, challenged the correctness of this case on the ground that the decision given therein being based on the ratio laid down in the case of Harbenchal v. Kanhailal 4 Indian Cases 878 cannot be considered as an authority laying down the correct law. According to the learned counsel Devi Singh's case (supra) should also be deemed to have been overruled by the Supreme Court because of the contrary view taken by it in Major S. S. Khanna's case (supra). The distinction drawn by the learned counsel has no basis. The Supreme Court overruled Buddhulal v. Mewalal A.I.R. 1921 All. 1 and not this decision. More­over, the decision of the learned Judge is not solely based on Devi Singh v. Brij Basi (supra). He has given independent reasons for holding that such an order is not revisable. Reliance was placed by the learned counsel for the applicant upon Jittam Singh v. Smt. Rajai and others 1956 A.L.R. 767, in support of his submission that the revision was competent. This was however a case in which by the impugned order the court below did not only dispose of the application filed under Order 41, Rule 27, C.P.C. but the case itself. This case is, therefore, of no assistance to the appli­cants. The next case referred to by the learned counsel is reported in Dharamshi v. Patel Kadva Bhada and others A.I.R. 1966 Guj. 313. It is true that in this case the revision filed against the order admitting additional evidence was entertained. But it appears that the question of its maintainability was neither raised nor decided in this decision. The only question decided was as to at what stage should the appellate court decide whether additional evidence be permitted. This deci­sion, therefore, also does not support the applicant.
(3.) APART from the above, assuming that the impugned order is re-visable, I will not like to interfere in the instant case as to my mind, non-interference will not cause a denial of justice or irremedible harm to the applicant. By the impugned order, the court below was only admitted additional evidence. The rights of the parties are still to be decided. Since it will be open to the applicant to challenge this order in second appeal, if the court below decides the first ap­peal pending before it against the applicant, it is not in the interest of justice to interfere at this stage. The Supreme Court has observ­ed in Major S. S. Khanna's case (supra) that the exercise of juris­diction under Section 115, C.P.C. is discretionary and that the court is not bound to interfere merely because the conditions in clauses (a), (b) and (c) of this section are satisfied. The fact that another remedy is available to an aggrieved party by way of an appeal from the ulti­mate judgment or decree, in the proceeding as said in this case, is one of the relevant considerations for refusing to exercise the dis­cretion under this section. Hence I find that this revision is liable to be rejected on this preliminary ground.;