P. C. JAIN, J. - (1.) THIS is a revision petition by the defendant-petitioner under Sec. 115 of the Code of Civil Procedure against the order dated 12th July 1985, passed by the learned Munsiff-Magistrate, Karauli, in Civil Suit No. 27 of 1975, dismissing the application dated 15th February, 1985, by which the defendant desired to examine the Handwriting Expert to prove the document Ex. A. 3 alleged to bear the signature of the plaintiff's father Kishan Lal.
(2.) NOTICE has been taken by the defendant by entering upon a caveat and the parties desired that the revision petition be disposed of at this stage, as such, this revision petition is being decided at the admission stage. The admitted facts of the case are that in a suit for injunction, possession and partition, filed by the plaintiff Kalyan Prasad against the defendant-petitioner and others in the Court of the learned Munsiff - Magistrate, Karauli, the evidence of the plaintiff was closed and the defendant was adducing his evidence. During the course of his evidence he moved an application, by which he desired to call the Handwriting Expert in order to prove the signature of Kishan Lal, father of the plaintiff on the document Ex. A/3, on which the case of the defendant is totally based. The defendant's case is that he purchased the disputed immovable property from Shri Ramji Lal and his father late Shri Kishan Lal, for which they executed an agreement to sell in favour of the defendant This document is Ex. A-3. It is said that the executant of this document is late Shri Kishan Lal. The plaintiff has denied the document Ex. A/3. As such, it became essential for the defendant to prove the signature of the executant late Shri Kishan Lal who is the father of the plaintiff. In order to prove the signature of late Shri Kishan Lal, defendant, also summoned one more document, which is Ex. A/17, which is also alleged to bear the signature of Kishan Lal. It may be stated here that the plaintiff has admitted Ex. A /17. Ex. A/17 is the certified copy of the plaint bearing the signature of Kishan Lal. The original file was also summoned along with the certified copy. The learned Munsiff rejected the application on the ground that the defendant was responsible for delaying the matter inasmuch as the case remained pending for defendant's evidence for the last two years, and it was for the purpose of delaying further proceedings of the suit that the application was moved. The suit, in fact, was instituted in the year 1975. The another ground which was given by the learned Munsiff was that the name of the expert was not disclosed in the application. It was also pointed out that it was not mentioned in the application as to whom the document is to be sent for examination. In the facts and circumstances of the case, the learned Munsiff dismissed the application. Aggrieved by the order dated 12th July, 1985, passed by the learned Munsiff, Karauli, the defendant has filed this revision petition before this Court. The learned counsel for the defendant submitted that it is a case where the facts would disclose that if the mistake committed by the learned lower Court is not corrected, it would occasion failure of justice, or cause irreparable injury to the defendant. He further submitted that the grounds given by the learned lower Court are not reasonable. On the other hand, the learned counsel for the plaintiff while contesting the revision petition raised preliminary objections that no revision lay against the impugned order because no case of failure of justice or irreparable injury was made out and that the revision would be barred as correctness of the impugned order can be assailed under Sec. 105, CPC in an appeal against the decree by setting forth a ground of objection in the memorandum of appeal. The learned counsel further contended that the impugned order does not fall within the meaning of the expression "case decided" as it has not adjudged any right or obligation of the parties in controversy. In short, his main submission is that even if an interlocutory order is erroneous which affects the decision of the case, it is liable to be attacked in appeal from the ultimate judgment or decree passed in the suit and the revisional powers should not be exercised unless it is found that the party approaching the High Court under Sec. 115, CPC has no other remedy available to him for redressal of his grievance. He relied on Sabitri Devi vs. Bai Kuntha ft) in order to substantiate his argument. In order to meet the argument advanced by the learned counsel for the plaintiff-respondent, Mr. Gupta, cited Ghewar Chand V. Gaj Singh (2) and Yaqoob Ali v. Haji Tej Khanji Ibrahimji (3 ). On the basis of these two authorities of this Court Mr. Gupta submits that so far as this Court is concerned, there is now no room for controversy that the High Court is empowered to rectify an order of subordinate court at any stage of the suit or proceedings and that where the allegation itself is not appealable to the High Court directly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.
(3.) IN Ghewar Chand vs. Gaj Singh (2), Hon'ble M. C. Jain J. while considering the scope and ambit of Sec. 115, CPC observed as follows :- "even when interlocutory order does not adjudicate or determine any rights or obligations of the parties in controversy in the suit, still, such an interlocutory order may occasion failure of justice or cause irreparable injury and as such, it can be said that such an order is revisable. The expression "any case which has been decided" includes 'any order made". It is true that the expression "any order made" includes within its embrace all sorts of orders. Such a wide connotation of course cannot be given to the expression "any order". An order which may ultimately affect the decision of the suit or which may ultimately affect the right of the party, though it is not adjudicating the right, may, in my opinion, be covered under the expression "any order". In Yaqoob Ali vs. Haji Tej Khanji Ibrahimji (supra) a Division Bench of this Court had again considered the meaning of the expression "case decided" and considered in and under what circumstances an interlocutory order can be interfered by the High Court under sec. 115, C. P. C. In this case, the learned Division Bench considered two cases decided by this Court. One was Ram Chandra v. Laxmi Kumar (4), decided by Hon'ble Lodha J. and another case, Narain Lal v. Someshwar Dayal (S. B. Civil Revision No. 62 of 1977, decided on February 6, 1979, by Hon'ble M. L. Joshi J. ). The learned Division Bench did not agree with the decisions given in the said cases and observed as under : "apart from the object behind s. 115. CPC is to provide means to an aggrieved party to obtain correction or rectification of non-appealable order through this power has to be exercised on the fulfilment of all the conditions laid down in it. If the interpretation which has been taken in Narain Lal's case (supra) and Ramchand's case (1) is accepted, that will, our opinion, frustrate the very purpose and object of s. 115, CPC. Apart from this, it should also not be lost sight of that amongst others, the Explanation to s. 115 unambiguously lays down that in section 1 15, expression "any case which has been decided" includes any order made in the course of a suit or any other proceedings. This Explanation is more than clear that 'case decided' means even a part of case and as such on the fulfilment of the conditions laid down in proviso (b), interference can be made with the order refusing to record evidence. It follows from what has been discussed above that if any jurisdictional error has been committed by the subordinate court in the course of a suit or other proceedings, it can be corrected in revision provided that order has occasioned failure of justice or caused irreparable injury to the party against whom the order has been made. " While making the above referred observations, the learned Division Bench also held that the mere fact that the said interlocutory order can be challenged by setting forth objection in a memo of appeal against the decree under Sec. 105. CPC would not be sufficient for not invoking the revisional jurisdiction under Sec. 115, CPC on the ground that as that order can be challenged by setting forth ground of objection in the memo of appeal against the decree in an appeal, it cannot be said to occasion a failure of justice or to have caused irreparable injury to the party against whom it was made. ;