S.K.Mal Lodha, J. - (1.) This is a joint reference made by a learned single Judge of this Court in the two revisions involving somewhat similar questions, as according to him there are conflicting decisions of the learned Judges of this Court relating to the provisions of Order XVI, Rule 1, C. P. C. as amended by the Civil Procedure Code (Amendment) Act (No. 104 of 1976) (for short 'the Amendment Act'), which came into force from Feb. 1, 1977.
(2.) We will notice the facts giving rise to S. B. Civil Revision No. 49 of 1979, Yaqoob Ali v. Firm Taj Khan Ibrahim. as S. B. Civil Revision No. 289 of 1979, Heeralal v. Pyarelal was disposed of by a Division Bench on January 8, 1982 on account of the concession made, it was not considered proper to decide it on merits. S. B. Civil Revision No. 48 of 1979.
(3.) The plaintiffs-non-petitioners filed a suit again the defendant-petitioner for specific performance of contract, damages etc. The suit was contested on various grounds by the defendant. Issues were framed on May 9, 1977. The plaintiffs led evidence, and closed it on July 11, 1978. Thereafter, the defendant tiled his list of witnesses including himself in rebuttal on July 17, 1978. An objection was raised by the plaintiffs that as list was tiled beyond fifteen days of July 22, 1977 when the issues were amended, the defendant could not be allowed to examine the witnesses whose names have been mentioned in the list because of the provisions of Order XVI, Rule 1, C.P. C. as amended by the amendment Act. The learned Additional Civil Judge, Udaipur by his order dated January 16, 1979, held that the list of witnesses tiled by the defendant was beyond time and, therefore, he was not entitled to examine the witnesses. A revision was filed under Section 115, C. P. C. by the defendant in this Court on February 13, 1979. When the revision came up for hearing before the learned Judge, two grounds were raised: (1) that the amended provisions of Order XVI, Rule 1, C. P. C. were not inconsistent with Order XVI, Rule 1, Civil P. C, as substituted by the Rajasthan High Court and, therefore, they do not stand repealed by the amendment Act; and (2) that in any case, a liberal view ought to have been taken by the learned Additional Civil Judge and the defendant should have been given permission to examine his witnesses. At the time of hearing, a preliminary objection was raised by the learned counsel for the non- petitioners that no revision lay against the impugned order because no ease of failure of justice or irreparable injury was made out in the case. Attention of the learned single Judge was invited to Ramchand v. Laxmikumar, AIR 1980 Raj 128 a decision of G.N. Lodha, J., wherein there was a reference of Narain Lal v. Someshwar Dayal, (Civil Revn. No. 62 of 1977 decided on Feb. 6, 1979 by M L. Joshi J.). The learned Judge has referred to the following extract appearing in Ramchand's case: "Mr. Jain, appearing for the respondent-plaintiff has drawn by attention to the judgment of Hon. Justice Joshi dated February 6, 1979 in Narain Lal v. Someshwar Dayal, (C. R. No. 62 of 1977 decided on 6-2-1979) (Raj), in the matter of revision application against refusal of the trial Court to examine witnesses who were present in the Court. In that case, this Court observed as under:-- "The question therefore calls for consideration is whether in the facts and circum-stances of this case the Court should invoke its revisional jurisdiction. Under Section 115, C. P. C the High Court shall not invoke the revisional jurisdiction under Section 115 for varying or reversing any order made unless the order by itself disposes of the suit or unless the order if allowed to stand would occasion failure of justice or cause irreparable injury to the party against whom it was made. Neither of these conditions mentioned in the proviso to Section 115, C. P. C. is satisfied in the present case. Neither the interference with the impugned order would dispose of the suit nor it can be said that the non-interference with it would occasion failure of justice within the meaning of Section 115 of the Code of Civil Procedure inasmuch as the defendant has remedy under Section 105 of the Code whereunder he can challenge the impugned order in the memorandum of appeal. Whatever sympathies may be for the defendant, looking to the legislative intent contained in Section 115 it is difficult for me to interfere with the impugned order in the revisional side. The learned counsel for the petitioner submits that his one more application dated 15-1-1977 is still pending. The Court has to decide that application according to law and whatever arguments are legally permissible, the defendant can raise those arguments before the trial Court. With these observations the revision application is dismissed. In the above cited case, the observation of Hon. Justice Joshi tantamounts to this that it cannot be said that this would result in failure of justice or irreparable injury. Implication is very clear that though injury may be caused to the party who may be compelled to file appeal, will it be called irreparable injury ? The judgments referred to by Mr. Khan are judgments on the point of correctness or otherwise of the recording of evidence under Order 16. Undoubtedly interference has been made in revision but the question whether irreparable loss or failure of justice is caused and if so in what particular circumstances, was neither agitated in those cases nor discussed at length. It is only in the judgment of Narain Lal v. Someshwari Dayal's case that the objection was considered and adjudicated upon after a careful examination and consideration of the Scheme of the provision to Section 115 and more particularly Clause (b) of the proviso which mention phrase 'failure of justice or irreparable injury'." It was pressed at the time of hearing before the learned Judge, by the defendant on the basis of the various decisions of this Court that interference was made in revisions by this Court in such cases in somewhat similar circumstances. G. M. Lodha, J. distinguished the various authorities of this Court referred to in Ramchand's case on the ground that a specific point was not raised in those decisions that where an order can be challenged in appeal, it cannot be said that it would result in failure of justice or irreparable injury. The learned Judge was of the opinion that because of the conflict of the opinion on this point, the view taken by G. M. Lodha, J. and Joshi, J. requires reconsideration.;