ORISSA HIGH COURT
SINGLE BENCH
( Before : D.P. Mohapatra, J )
RAMESH LAL SHANTUKA
Vs.
SURESH LAL SHANTUKA
Civil Revision No. 207 of 1984
Decided on : 10-08-1984
Civil Procedure Code, 1908 (CPC) – Order 18 Rule 3, Section 115, Section 115(1)
Civil Procedure Code, 1908 (CPC) – Section 115(1) Proviso and Order 18, Rule 3 – Additional issue of non – joinder of parties – The burden of proof of such issue will be on the party at whose behest such additional issue was framed.
Cases Referred
Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, AIR 1970 SC 406 : (1969) 2 SCC 201 : (1970) 1 SCR 435
Food Corporation of India Vs. Birendra Nath Dhar, AIR 1978 Cal 264 : 82 CWN 611 : (1978) 1 ILR (Cal) 410
Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497 : AIR 1963 SC 497 : (1964) 66 PLR 115 : (1964) 4 SCR 409
Sabitri Debi and Another Vs. Baikuntha Das and Another, AIR 1979 Ori 140 : (1979) 47 CLT 266
Ramgulam Choudhary and Others Vs. Nawin Choudhary and Others, AIR 1972 Patna 499
Mahanth Som Prakash Das Vs. Sri Udasin Panchayati Akhara Bara and Others, AIR 1983 Patna 35 : (1982) 30 BLJR 483 : (1982) PLJR 486
Parsuram Dubey Vs. Mahanth Laxman Das and Others, AIR 1974 Patna 278 : (1974) 7 PLJR 276
Manohar Lal Vs. Valerior (Cawnpore) Pvt. Ltd. and Another, AIR 1980 All 327
Counsel for Appearing Parties
B.M. Patnaik, S.C. Lal, K.M. Jena and P.K. Choudhury, for the Appellant; B.D. Mishra and B. Kr. Mohanty, for the Respondent
ORDER
D.P. Mohapatra, J.โThe defendant in T. S. 383/82/102/82 pending in the Court of the Sub-Judge, 1st Court, Cuttack is the petitioner in this revision. He impugns the order dated 28-3-83 in the said suit rejecting his petition dated 21-12-83 praying to call upon the opposite party (plaintiff) to state expressly whether he intends to recall any of his witnesses for further examination and not to proceed with his examination till further examination of the witnesses for the opposite party is over.
2. The gist of the facts material for purpose of this proceeding is that the opposite party has filed the suit for preliminary decree for partition of the suit properties and for determination of his share therein. The case of the plaintiff, in short, is that by an oral partition on 30-10-78 the joint family property described in the schedule of the plaint- fell jointly to the share of himself and the defendant who are brothers. It is his further case that this oral partition was reduced to writing in the form of a memorandum of a family settlement dated 27-2-1979.
3. The petitioner in his written statement denied the oral partition said to have taken place on 30-10-78. He further stated that the memorandum of family settlement was obtained by undue influence and it was otherwise invalid.
4. By order dated 29-4-83 the trial Court allowed an application under Order 6,. Rule 17, C.P.C. filed by the petitioner and permitted him to amend the written statement by addition of para 33(a) of the written statements. In the said para the petition stated that all the members of H.U.F. who were parties to the oral partition and the memorandum of family settlement alleged in the plaint having not been impleaded as parties in the suit, the suit is bad for non-joinder of necessary parties and as such, is liable to be dismissed. Thereafter, the petitioner filed another application to amend para 28(c) of the written statement by way of substitution of figure ‘1978’ therein by figure ‘1980’. This application having been rejected by the trial Court, the petitioner filed a revision petition (C. R. 487/83) in this Court challenging the said order. This Court by order dated 24-10-83 allowed the revision petition. While allowing the amendment, the Court observed : —
“The plaintiff, if he so chooses, shall be permitted to recall the witnesses already examined by him for re-examination”.
By order dated 7-11-83 the trial Court framed an additional issue on the basis of the amendment of the written statements allowed by his order dated 29-4-83. The issue so framed was : —
“Whether the suit is bad for non-joinder of all the members of H.U.F. who were parties to the oral partition and memorandum of family settlement?”
Thereafter, when the case came up on 11-11-83, the trial Court posted it to 22-11-83 for hearing with a direction that the parties may adduce further evidence including an additional issue framed. On 22-11-83 the case was ordered to be put up on 1-12-83 for hearing when the plaintiff may adduce further evidence on additional issue framed by order dated 7-11-83. The Court further observed that in case the plaintiff does not want to adduce any further evidence on the additional issue, he may file a memo to that effect and defendant may proceed with further evidence. On 1-12-83 the case was adjourned to 7-12-83 for further evidence by the plaintiff. On 21-12-83 the petitioner filed an application praying inter alia that the Court may direct the opposite party to exercise his option to give the names of the witnesses to whom he wants to recall for examination in terms of the order in C. R. 487/84 and whom he wants to examine as per the order of the trial Court and only after the examination of such witnesses, if any, is completed further examination of the defendant should be taken up. It may be mentioned here that when the matter was carried to this Court in C. R. 486/83 the petitioner was being examined and due to the order of stay passed by this Court, his examination had not been completed. To the above application filed by the petitioner, the opposite party filed a memorandum on 6-3-83 stating that he reserves his right to adduce rebuttal evidence if any after the defendant completes his evidence. This matter was heard and disposed of by the Court below by order dated 28-3-84 wherein, the Court gave leave to the opposite party to reserve his right to adduce rebuttal evidence, if any, after the petitioner completes his evidence. This order is under challenge in the present proceeding.
5. The learned counsel for the petitioner challenges the impugned order mainly on the following grounds : —
a) Order 18, Rule 3 C.P.C. has no application to the facts and circumstances of the case and hence the Court below erred in permitting the opposite party to adduce further evidence after completion of the evidence of the petitioner.
b) The impugned order prejudices the petitioner in the trial of the suit.
6. The learned counsel for the opposite party, on the other hand, contends that revision application is not maintainable since the order of the trial Court does not amount to a ‘case decided’ within the purview of Section 115, Civil Procedure Code. He further submits that even if it is held that the order amounts to a ‘case decided’ then the proviso to Section 115(1), C.P.C. is not satisfied inasmuch as it would neither occasion a failure of justice nor cause irreparable injury to the petitioner if it is allowed to stand. On merit the learned counsel justified the order of the trial Court as based on sound exercise of discretion.
7. It would be convenient to take up the question of maintainability of the revision application first since it is in the nature of a preliminary objection. The question whether an interlocutory order in a suit or proceeding amounts to a ‘case decided’ for the purpose of Section 115, C.P.C. has arisen in many a case before different Courts. To begin with I would quote a passage from the oft quoted decision of the Supreme Court in the case of Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, wherein the Court while interpreting the term ‘case’ as a word of comprehensive import including any order in a civil proceeding and not restricted to the entirety of the proceeding in the Civil Court, observed as follows : —
“But every order of the Court in the course of a suit does not amount to a ‘case decided’. A case may be said to be decided, if the Court adjudicates for the purposes 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. By overruling an objection to a question put to a witness or allowing the question to be put, no case is decided.”
In the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, the Court observed that when by an interlocutory order the trial Court held that the suit filed by the plaintiff for recovery of amounts advanced to the defendant was not maintainable, it was manifestly a decision having a direct bearing on the rights of the plaintiff to a decree for recovery of the loan alleged to have been advanced by him, and if the expression ‘case’ includes a part of the case, the order of the Subordinate Judge must be regarded as a “case which has been decided”.
8. In the case of Ramgulam Choudhary and Others Vs. Nawin Choudhary and Others, Justice N. L. Untwalia (as he then was) followed the decision of the Supreme Court reported in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, and held that the question whether an order was ‘case decided’ depends upon whether or not there was an adjudication for the purpose of suit or proceeding some right or obligation of parties in controversy. The order can be revised only if there was such an adjudication and suffered from jurisdictional error.
9. The Patna High Court in the case of Parsuram Dubey Vs. Mahanth Laxman Das and Others, held that admission of a document into evidence was not a ‘case decided’. In the said case, the trial Court white admitting the document had observed that the defendant will also have an opportunity to adduce evidence in rebuttal if he so likes and this was taken as clear indication that admission of the document caused no prejudice to the defendant-petitioner.
10. In the case of Mahanth Som Prakash Das Vs. Sri Udasin Panchayati Akhara Bara and Others, the Court held that refusal of the Court to entertain the documents not in possession of the petitioner affects the valuable right to file the suit and hence it amounts to a ‘case decided’. The Court on perusal of explanation to Section 115 held that it is clear that a Civil Revision petition would be maintainable against any order which determines rights and obligations of the parties in controversy. In this decision the learned Judge made an important observation that though the meaning of the expression “case decided” has been widened by virtue of the explanation to Sub-section (2) of Section 115, the decision of the Supreme Court in the case of Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, is still good law.
11. The Allahabad High Court in the case of Manohar Lal Vs. Valerior (Cawnpore) Pvt. Ltd. and Another, held that the impugned order refusing to recall a witness for further cross-examination is not an order adjudicating upon any right or liability of the parties in controversy and accordingly, does not amount to a ‘case decided’ within meaning of Section 115. Therefore, the revision petition was held not to be maintainable.
12. This Court in the case of Sabitri Debi and Another Vs. Baikuntha Das and Another, relying on the decision of the Supreme Court in case of Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, held that by an order refusing to send a document for Expert’s examination no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter relating to procedure. Since no right or obligation of any of the parties is determined by the impugned order, it would not in my opinion, come within the ambit of the expression “case which has been decided”.
13. Calcutta High Court in the case of Food Corporation of India Vs. Birendra Nath Dhar, interpreting Section 115 as it stands after amendment of 1976 observed : —
“Though by an order made in the course of proceedings a case may be said to be decided yet it would not be revisable u/s 115, unless there is a question of jurisdiction within the meaning of Clauses (a), (b) or (c) of Sub-section (1) of Section 115 and further unless it is an order as contemplated by Clause (a) or Clause (b) of the proviso added to Section 115. There is a further restriction which is contained in Sub-section (2) of Section 115 which provides that the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court Subordinate thereto”.
14. From the observations made by different Courts in the cases referred to above, it is clear that the meaning of the term ‘case decided’ has been widened after the amendment introducing the explanation to Sub-section (2) of Section 115, C.P.C. But in spite of this extended meaning the Courts have held that any and every order passed in the course of a suit does not amount to a ‘case decided’ and the order must relate to adjudication of some right or obligation of the parties in controversy for this purpose. It is further apparent from the decisions that even if an order amounts to a ‘case decided’ and there is a question of jurisdiction within the meaning of Clauses (a), (b) and (c) of Sub-section (1) of Section 115, still it must satisfy Clause (a) and Clause (b) of the proviso of Section 115(1) i.e. the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or other proceeding, or the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. It is pertinent to mention here that this proviso has also been added by amendment.
15. Now it is to be seen how far these requirements are satisfied in the facts and circumstances of the present case. This Court while making observation in the order in C. R. 487/83 that the plaintiff, if he so chooses, shall be permitted to recall the witnesses already examined by him for re-examination, did not state the stage at which this option may be exercised by the plaintiff (opp. party). The examination of the defendant (petitioner) was continuing when this Court stayed further proceeding in Civil Revision 487/83 and in the normal course his examination would have continued after disposal of the Civil Revision.
16. Order XVIII, Rule 3 C.P.C. provides that where there are several issues, the burden of proving sortie of which lies on the other party, the party beginning any, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. It is thus dear that this provision applies to a case if there are several issues in respect of some of which the burden of proof lies on the party other than the party beginning. In this case, as already noticed, an additional issue relating to non-joinder of necessary parties was framed by the Court after disposal of C. R. 487/83. It is conceded that the burden of proving this issue lies on the petitioner and as such Order XVIII, Rule 3 is attracted. The trial Court has permitted the plaintiff-opp. party to adduce additional evidence in respect of this issue and also to exercise his option to recall any of his witnesses after close of the evidence of the defendant-petitioner. Hence it cannot be said that Order XVIII, Rule 3, C.P.C. has no application at all to the case. This order does not involve adjudication of any right or obligation of the parties in the suit and hence cannot be said to amount to a ‘case decided’, assuming that the order comes within the extended meaning of the term, it does not satisfy the conditions laid down in the proviso of Section 115(1), C.P.C. in as much as if the order had been made in favour of the petitioner it would not have finally disposed of the suit and the order, if allowed to stand, would not occasion failure of justice or cause irreparable injury to the petitioner. On the question of prejudice the only submission made by the learned counsel for the petitioner is that the order deprives his client the right to have the ‘last say’ in the suit. In my opinion, this submission is without substance. Order XVIII, Rule 3, C.P.C. makes it clear that in case the party beginning reserves his right to adduce evidence on certain issues, after close of the evidence of the other party, the later may then reply specially on the evidence so produced by the party beginning. Therefore, if the Opp. Party brings in any fresh material after the evidence of the petitioner is closed, it is open to him to make a prayer to the Court to give him an opportunity to reply to the evidence so produced and if such a prayer is made it will be considered by the trial Court in accordance with law.
17. From the discussions aforesaid, it is clear that the order under challenge does not satisfy the conditions laid down in Section 115, C.P.C. and as such it is not available to be interfered with in exercise of the revisional jurisdiction of this Court. Hence, the revision petition fails and it is dismissed, but in the circumstances of this case without costs of this proceeding.
(1986) AIR(Orissa) 69 : (1984) 1 OriLR 967
