RAJESH BALIA, J. - (1.) Since a common question of law arises in all the above revisions and therefore, they were heard together and are being disposed of by a common order.
(2.) FACTS OF THE CASE [REVISION NO. 160/1999] : The defendant petitioner has filed this revision against the order dated 30-1-1999 passed by the learned Additional Civil Judge (Senior Division ) No. 2, Udaipur in Civil Original Suit No. 72 of 1997 whereby the application filed by the defendant petitioner under Or. XIII, R. 2, CPC for production of evidence after he has failed to produce documentary evidence under Or. XIII, R. 1, C.P.C. within the time allowed by the Court has been rejected.
(3.) This Court vide its order dated 19-2-1999 ordered for the issuance of show cause notices to the non-petitioners as to why the instant revision be not finally disposed of at the admission stage. After service of notices, the revision petition was heard by the learned single Judge on 8-4-1999. The learned single Judge vide his order dated 8-4-1999 came to the conclusion that there is a conflict of opinion between the recent decision rendered by this Court in I.B.P. Company Ltd. v. Smt. Chandrabai. and two earlier Division Bench decisions of this Court in Chouth Mal v. Fazal Hussain (1991) 1 Raj LW 9 and Bharosilal v. Mool Chand (1991) 2 Raj LW 292 regarding maintainability of the revision petition in respect of an order refusing to entertain evidence under O. XIII, R. 2, C.P.C. and, therefore, he referred the case to be decided by a larger bench on the following points : [1] Whether proviso (b) of sub-section (1) of Section 115, CPC is to be interpreted in the light of sub-section (2) of Section 115, CPC, which clearly provides that the High Court shall not under amended Section 115, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto ? [2] Whether in a civil suit against which an appeal lies, if trial Court after settlement of issues passed an order in exercise of its positive discretion receiving documentary evidence under O. 13, R. 2, CPC after giving an opportunity to other party to adduce documentary evidence in rebuttal yet a revision is maintainable under amended Section 115, CPC against such order ? [3] Whether principle of merger is extendable in a civil suit against which an appeal lies to the issues decided and orders passed by trial Courts in between before passing the decree and such issues decided and orders passed in between passing the decree by the trial Courts merged in the decree and also become integral part of such decree so such issues decided and such orders passed are assailable in appeal? [4] Whether a revision petition under amended Section 115, CPC is maintainable against an order passed by trial Court refusing to receive documentary evidence under O. 13, R. 2, CPC irrespective of the fact that this error can be rectified within the meaning of clause (a) of sub-rule (1) of Rule 27 of Order 47, CPC ? [5] Whether the Division Bench of this Court in the case of Bharosi Lal (supra) has no jurisdiction to travel beyond the terms of its reference made to it holding in paragraph 25 of its decision that if in a case, without existence of sufficient cause, the Court allows an application filed under O. 13, R. 2, CPC then the Court has committed material irregularity in the exercise of its jurisdiction of entertaining the application under O. 13, R. 2, CPC ? [6] Whether under amended Section 115, CPC mere jurisdictional error is not sufficient to entertain a revision unless any one of the conditions enumerated either under proviso (a) or under proviso (b) of sub-section (1) of Section 115, CPC together with non obstante sub-section (2) of the said Section are objectively satisfied ? [7] Whether the expression "no appeal lies" used under sub-section (1) of Section 115, CPC has reasonable nexus with the expression against which appeal lies either to the High Court or to any Court subordinate thereto" used under newly inserted sub-section (2) of the said Section and if so its effects on scope of maintainability of revision under amended Section 115, CPC ?;