Delhi High Court
Basheshar Pictures vs Prem Parkash on 19 February, 1991
Equivalent citations: 4(1991)DLT699, 1991(1)DRJ(SUPPL)466
JUDGMENT P.N. Nag, J.
(1) In suit for recovery of a sum of Rs. 92,000.00 due to the plaintiff respondent, before the trial Court, an application under order 11 Rule 1 of the Code of Civil Procedure, 1908 has been moved by the defendant petitioner for answering certain it errogatories by the plaintiff-respondent which are relevant, according to him, for determining the point in controversy and relates to the issues framed by the Court. The Court has dismissed that application on 30l1.1990 by holding that the interrogatories sought for by the defendant petitioner do not relate to the evidence of the plaintiff and in fact these interrogatories are in the nature of cross-examination. Against this order, the present petition under Article 227 of the Constitution of India has been filed by the petitioner respondent, which was later converted as civil revision under Section 115 of the Code of Civil Procedure, 1908.
(2) During the course of bearing a preliminary objection was raised by the learned counsel for the respondent that the rejection of the application filed by defendant-petitioner for interrogatories under Order 11 Rule 1 of the Code of Civil Procedure, 1908 is not a case decided and, therefore, civil revision is not maintainable under Section 115 of the Code of Civil Procedure, 1908 as according to him under Section 115, Code of Procedure, 1908 the High Court may call for the record of any case which has been decided by an Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears: (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its Jurisdiction illegally or with material irregularity. In fact, in the present case, no case stands decided by rejection of that application and, therefore, the revision is not maintainable.
(3) There seems to be a good deal of force in the submission of the learned counsel for the respondent. Similar question in Maheshwari Oil Mill v. M/s Girjanath Durga Saran, was considered wherein it was held that an order refusing to grant leave to a party to deliver interrogatories is not a case decided within the meaning of Section 115 of the Code of Civil Procedure, 1908 and accordingly the revision petition was dismissed. In Y. Venkateswara Rao v. K. Nagamma and another (AIR 1972 Mys.254) this question was also considered and similar view as in Maheshwari Oil Mills (supra) has been expressed. It has been held that where the Court refuses to grant leave to defendant to serve interrogatories it cannot be said that the Court had adjudicated some right or obligation of the parties in controversy. What is being sought under Order 11, Rule 1, Civil Procedure Code is the leave to deliver interrogatories. When the Court exercises it judicial discretion in granting or refusing the leave, it cannot be stated to be an adjudication of some right or obligation of the parties in controversy. In fact that Court came to that conclusion by referring and following the observations of the Supreme Court as to what amounts to case decided in S.S.Khanna v. F. J. Dhillon, and Baldevdas v. Filmistan Distributors, .
(4) I am in respectful agreement with the views expressed by Allahabad and Mysore High Courts in this regard and. therefore, the revision petition in the present circumstances is not maintainable.
(5) Mr. Malhotra, learned counsel for the petitioner vehemently asserts that the revision petition is maintainable as the trial Court has exercised jurisdiction with material irregularity inasmuch as the trial Court has not allowed the interrogatories to be served on the plaintiff as it would have cut short the controversy between the parties and would have been in the interest of justice. I regret I am unable to accept this submission of the learned counsel for the petitioner. This question can be considered only if the revision is found to be maintainable.
(6) Mr. Malhotra again submits that even if the revision is held to be non-maintainable, this Court has ample powers to correct any error of jurisdiction of the trial Court or pass any order, in the interest of justice, and can set aside the order of the trial Court if there is miscarriage of justice. I regret. again, I am unable to accept this contention, reason being that the trial Court has exercised judicial discretion in refusing the leave for interrogatories and the trial Court thereby has acted within its bounds and jurisdiction and, there- fore, this Court under Article 227 of the Constitution of India should not interfere in the exercise of such discretion by the trial court. Furthermore, I do not see how miscarriage of justice will result into. The defendant's evidence has yet to start and in case he wants to examine any witness, he will be free to call for the witnesses and examine them. Therefore, I do not visualise in any way that there has been any miscarriage.
(7) In these circumstances, there is no merit in the petition and the same is dismissed in liming.
(8) I am informed by counsel for the petitioner that the case in the trial Court is fixed for 22nd February, 1991 and time for summoning the witnesses is too short. The trial Court will give reasonable time to the petitioner-defendant to summon the witnesses.