Madras High Court
Sambandam And Anr. vs Guru Chandrasekaran And Ors. on 11 August, 1995
Equivalent citations: (1996)1MLJ43
ORDER Thangamani, J.
1. The revision petitioners are the plaintiffs in O.S. No. 17 of 1993 in the Court of District Munsif, Mayiladuthurai. They filed a suit for declaration of their possessory title to the suit property which is in T.S. No. 59 within Mayiladuthurai Town and for permanent injunction restraining the defendants and their men from interfering with their peaceful enjoyment of this piece of land. The allegation in the plaint is to the effect that the ground site of this property belongs to Arulmigu Kumarakattalai Sri Subramaniaswamy Devasthanam. The father of the defendants/respondents, by name Kuppusamy, the original lessee of this land has assigned his lease-hold right therein in favour of one Kasambu Achi by means of a hand-letter dated 25.2.1977 executed for a consideration of Rs. 3,000. The said Kuppusamy has also conveyed the land in favour of the said Kasambu under the registered sale-deed dated 22.12.1976. Kasambu and her husband Narayanasamy are no more. Revision petitioners are the sons of the brother of Kasambu. They are enjoying the trees in the suit property. Since the respondents tried to cut the trees in the suit property and tried to take forcible possession of the same, they have come forward with this action. The respondents resisted the suit contending that the suit property as well as the back-yard of the 2nd respondent's house form one unit and are enclosed by a fence. Revision petitioners were never in enjoyment of this property. The documents relied on by them are fabricated. The alleged hand-letter dated 25.2.1977 is a forged one. The property was never delivered to the revision petitioners pursuant to the hand-letter.
2. In the trial court, the revision petitioners sought to file the hand-letter dated 25.2.1977 in evidence atleast for the collateral purposes under Section 49 of the Registration Act. On the objection of the respondents, learned District Munsif, refused to receive it in evidence stating that the relief claimed in the suit is based on this hand-letter and it has not been filed for any collateral purpose. Plaintiffs assail this order in this revision petition.
3. At the outset, Thiru S. Sethurathnam, learned Senior Counsel for the respondents raised the preliminary objection on the maintainability of the revision. He argued that under the provisions of Section 115, C.P.C., the High Court may call for the record of only a case which has been decided by any court subordinate to it. Rendering a finding on the admissibility of a document cannot be construed as a "case decided" within the meaning of Section 115 of the Code of Civil Procedure. He has pointed out that the Explanation to the said section gives an indication oil this aspect. The said explanation says that in this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceedings. A careful reading of this explanation would reveal that the order which could be challenged under Section 115, C.P.C., must be one which could decide an issue. Unless the nature of the order is such that it tends to give a finding on the controversy in the cause it cannot be construed as "case decided". In support of his claim, he has placed reliance on Gurdevi v. Md. Bakhsh A.I.R. 1943 Lah. 65. There, it has been held that, The word 'case' in Section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a 'case decided' within the meaning of Section 115; but it will be open to revision only if the other conditions expressly laid down in Section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.
4. In ha Adam v. Bai Mariam A.I.R. 1927 Bom. 664, a Division Bench of Bombay High Court took the view that the interlocutory order of the lower court rejecting certain evidence as inadmissible during the pendency of the suit is not revisable.
5. In Bachibabi v. Vibji Devji , a single Judge of the Gujarat High Court held that, Where the court admits a document or refuses to admit it in evidence, that matter cannot be the subject matter of revision under Section 115. During the course of examination of witnesses, a court has to give various rulings on the admissibility in evidence of the questions put and answers given. There cannot be a revision against every decision of the Judge allowing the questions to be put or not allowing certain question to be put. When the court allows a question to be put or refuses the question to be put that would not amount to deciding a case. Similarly, when the court allows a document to be admitted in evidence or the court refuses to allow it, that does not amount to deciding a case, but it amounts to deciding a question regarding the admissibility of certain evidence. Therefore, when the court decides questions under the Evidence Act, it is not deciding a case, and therefore its decision cannot be the subject matter of revision under Section 115.
In Rangulam Choudhary v. Nawin Choudhary A.I.R. 1972 Pat. 499, a single Judge of Patna High Court has laid down that While orders during the pendency of suit in relation to interim injunction or appointing a Receiver, an order staying the hearing of suit or proceedings, order under Section 11-A of the Bihar Act (3 of 1947) and an order in regard to amendment can be said to be cases decided', the others such as allowing or disallowing questions in examination and cross-examination, wrong admission of documents in evidence, confirming or setting aside pleader commissioner's report and ordering fresh investigation may not be cases decided' within the meaning of the expression in Section 115.
6. In Nand Kishore v. Kishan Chand , the trial court held that the document, according to the construction placed on it, was not a deed of partition and therefore did not require registration under Section 17 of the Registration Act. It was argued before the Himachal Pradesh High Court that the document was central to the decision of the suit and that by the impugned order the principal defence set up by the petitioner had been defeated. Held that the impugned order did not constitute a 'case decided.' Whereas Tmt. Prabha Sridevan, learned Counsel for the revision petitioner cited Hari Waman Rao v. Pappula Narsimulu . Where it has been held that in a suit for possession of land on the basis of plaintiff's title an unregistered usufructuary mortgage bond though not admissible in evidence to prove the mortgage is admissible in evidence to show the nature and character of defendant's possession. It is not necessary that the document must be accepted by the defendant if it is filed by the plaintiffs. Even if it is denied the document will be subjected to proof. But the document for the said collateral purpose could be received in evidence. If the trial court has refused to admit the document in evidence even for the collateral purpose the order will be set aside in revision.
However, it does not appear from the report that the maintainability of the revision was ever canvassed before the learned Judge of Andhra Pradesh High Court.
7. In Som Prakash v. Sri Udasin Panchayari Akhara Bara , the next decision cited by learned Counsel for the revision petitioner the Patna High Court took the view that in the case of refusal of the court to entertain documents not in possession of petitioner, valuable right to file a document in a suit is denied. The order of court amounted to a decision within Section 115, C.P.C., and the revision against the same was maintainable.
8. In Subba Rao v. Ganga Rao , yet another decision relied on by the learned revision petitioner, plaintiff filed the suit for recovery of certain amount on the basis of a loan taken by the defendant from him. Defendant pleaded discharge on the basis of a receipt. On a finding that the loan amount has been paid by the defendant, the suit was dismissed. On appeal, the learned subordinate Judge took a contrary view. This finding of the subordinate Judge was challenged by the defendant in the revision. In coming to that conclusion, the appellate court had ignored the evidence of D.Ws. 2 and 3 on the ground that the factum of repayment had not been pleaded in the written statement. Learned single Judge of Orissa High Court held that exclusion of evidence held to be inadmissible although under law, the evidence is not inadmissible and when such evidence is a material piece of evidence influencing court in passing the final order that would come within the concept of acting in exercise of jurisdiction illegally or with material irregularity under Section 115(c), C.P.C.
9. Numerous cases of the various High Courts had taken different views in regard to the interpretation of the expression "case decided". The expression "case" is a word of comprehensive import. It is not restricted by anything contained in that section to the entirety of the proceedings in a civil court. In S.S. Khanna v. Dhillon , the Apex Court pointed out that to interpret the expression "case" as an entire proceedings would be to impose an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice."
10. In Baldevas Shivlal v. Filmistan Distributors , a question arose whether every interlocutory order of the court if it suffers an infirmity of error of jurisdiction should be taken to be "a case decided" so as to clothe the High Court to the power of interference. The question was answered in the negative, and the Supreme Court held that, a case may be said to be decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of C.P.C.
11. In the present action, it cannot be said that learned District Munsif was adjudicating upon any right of the parties in controversy when he refused to admit the hand-letter in evidence. It is well known that from the date of institution of the suit or proceedings or until a conclusion by the court, several orders are made from time to time. Some may be erroneous orders and even may smack of errors of jurisdiction. But all interlocutory orders as the Supreme Court pointed out cannot be taken to be a "case decided" within the meaning of Section 115 of the case. A line has to be drawn between two types of orders although both of them are made during the pendency of the suit or proceedings. It is to be noticed whether a particular order is an adjudication by the trial court deciding for the purpose of a suit or proceedings some right or obligation of the parties in controversy or whether it is an order which is not of that kind.
12. In Karunakaran v. Ponnuswamy , a revision was filed against the order of the Rent Controller on the question whether an unregistered document be received in evidence. Varadarajan, J. as he then was, took the view that it is not desirable to admit the civil revision petitions against the trial court's ruling allowing or disallowing a particular piece of evidence in view of the fact that the error, if any committed by the trial court in admitting a particular piece of evidence or declaring to admit such a piece of evidence can be rectified in appellate forum. Learned Judge went on to remark that, No progress can be made in the trial court if civil revision petitions are admitted against the ruling given by the trial court about the admissibility of otherwise of a particular piece of evidence, as the trial court may have innumerable occasions to allow or disallow any particular piece of evidence during the trial of a suit or other proceedings. The mistake, if any, committed by the trial court in the admissibility or otherwise of a particular piece of evidence can be rectified by moving the appellate court in an appeal against the order or decree which may be passed ultimately by the trial court after taking into consideration or declining to take into consideration the particular piece of evidence.
I am in respectful agreement with the observation of His Lordship in toto.
13. Learned Counsel for the revision petitioner urged that in refusing to admit the hand-letter in evidence atleast for the collateral purpose of showing the nature and character of possession, the trial court has failed to exercise jurisdiction vested in it and hence under Section 115(a)(b) of the Code the revision will lie. It is her further grievance that once a document is shutdown from being marked in evidence she has no other go, but to invoke the jurisdiction of this Court under Section 15, C.P.C., since the appellate court cannot grant her any remedy. Needless to say that this grievance of the revision petitioner is more imaginary than real. It is always open to her to agitate before the appellate forum that the trial court has refused to let in a document in evidence which is otherwise admissible and seek the appropriate relief. In fact Order 41, Rule 27(1)(a), C.P.C., deals exactly with the similar situation. Under that provision the parties in appeals are entitled to adduce additional evidence in the appellate forum after the trial court has refused to admit evidence which ought to have been admitted. Evidently, the court below has not rendered any finding on a right or obligation of the party to attract the provisions under Section 115 of the Code when it refused to admit the hand-letter in evidence. Under these circumstances, the civil revision petition is not maintainable.
In the result, the civil revision petition is dismissed. No costs.