- (1.) S. K. Phaujdar, J. This revision ap plication is directed against an order dated 20th September, 1994 passed by the IIIrd Additional Civil Judge Ghaziabad, in O. S. No. 912 of 1988. The suit was filed by the respondent-Punjab National Bank, against the present revisionists and others for recovery of certain sum of money. During the pendency of the suit, the defendant-revisionists had filed an application before the trial Judge under Order XI Rules 1 and 2 CPC for answer of certain interrogatories on affidavits. That was objected to by the plaintiffs. The matter was heard and the prayer was rejected by the impugned order dated 20th, September 1994. This order is now under challenge under Section 115 of the CPC.
(2.) PRESSING the revision application, Sri J. T. Munir submitted that according to the plaint case certain sum of money was taken on loan from the bank by the defendants and there was a stipulation that bills payable to the defendants would be sent to the bank who would encash the bills and adjust the sums under the bills towards the loan and interest. It was alleged that certain bills were not at all accounted for by the bank and the interrogatories were directed only against those bills to know whether the bills were encashed and, if so, whether the sums were adjusted against the dues from the defen dants. A reading of the impugned order indicates that the defendants had at an ear lier stage of the proceedings in the suit, filed an application under Order V Rule 6 CPC. for further details and this application was dismissed on 21-3-1991 and the Court was of the view that the present prayer was noth ing but a renewal of the earlier prayer in disguise. The Court was of the view that while interrogatories were permissible to clarify the nature of the claim of one party, those were not meant to bring on record evidence and thereby to shift the onus of proof. In support of this application, Sri J. J. Munir relied on a decision of the Orissa High Court reported in AIR 1978 Orissa 179. It was held herein that the rejection of a petition requiring the plaintiff to answer interrogatories was a case decided and as such was revisable under Section 115 CPC. Reliance was placed on another decision reported in AIR 1978 Calcutta at page 284. In this case a Division Bench of the Calcutta High Court had explained the meaning of the expression "any case which has been decided". It was held that direction for production of documents was also an order to come under the above expression. In this very context reference was made by Sri Munir on a decision reported in AIR 1986 Delhi 289. It was observed by the Delhi High Court that after the amendment of 1976 introducing the proviso to Section 115, in dicating the conditions under which the High Court Court would be competent to vary or reverse an order of the Court below, "to add any further clarification to the ex pression 'case decided' would no longer seem to be necessary". Reference was made in this case to the aforesaid decision of the Orissa High Court also.
(3.) SRI Munir contended that when it is a case decided, this Court gets the power to revise the order. SRI K. L Grover, appearing for the respondents, relied on a decision of the Allahabad High Court as reported in AIR 1980 All 265. It was a case where the court below had refused to grant leave to a party to deliver interrogatories. The Al lahabad High Court, in this case, held that the order was not a "case decided" within the meaning of Section 115 CPC. Of the four decisions quoted before me, the Allahabad decision is a binding precedent and the dictum therein must, therefore, be accepted in preference to the decisions given by other High Courts. The problem can also be seen from another angle. It was the defence that certain bills were sent to the Bank for encashment and for adjustment towards dues of the defen dants. The defendants wanted through the present set of interrogatories an answer from the Bank as to what happened to those bills. In my view, the defendants, in support of the claim of the set off, was to prove the tender of the bills to the Bank and if that was done his onus was discharged and the onus would then have shifted to the bank to show whether the said bills were encashed and the sums were adjusted or if the bills were not encashed and what consequential action was taken by the bank. The interrogatories, as rightly interpreted by the court below, were meant to compel the bank to bring on record certain evidence which was not the purpose of Order XI CPC.;