Hemendra Chaudhary Vs Punjab National Bank and Another

@JUDGMENTTAG-ORDER

B. Dikshit, J.@mdashBy this revision, the Defendant revisionist has challenged the order dated 16-6-92 passed by Civil Judge Nainital allowing the application of Plaintiff opposite party for admitting in evidence documents filed by him at a late stage of the suit, when even arguments were over in the case.

2. This revision is not maintainable. No revision lies against an order allowing application for producing documentary evidence which was not filed at appropriate stage in accordance with Order 13 Rules 1 Code of Civil Procedure. It is not a case which has been decided" for the purpose of Section 115 Code of Civil Procedure. This view of mine is supported by a decision of this Court in the case of Kailash Singh v. Agarwal Export Corporation 1984 ALJ 30.

3. I am also of the opinion that analogy of cases in respect of adducing of additional evidence in appeal under Order 41 Rule 27 CPC can be extended to the cases where the trial court allows products of documentary evidence under Order 41 Rule 27 Code of Civil Procedure. Under both the provisions the production of evidence at late stage of litigation can be permitted, in the case of Smt. Shanti Kaur v. Smt. Haseen Jahan Begum 1976 (2) ALR 694. this Court held that an order passed evidence under Order 41 Rule 27 CPC is not a case decided. An earlier decision of this Court in the case of Devi Singh v. Brij Basi 1975 ALR 372 was followed by learned Single Judge in deciding the case of Smt. Shanti Kaur v. Smt. Haseen Jahan (Supra).

4. In respect of maintainability of revision, the learned Counsel for Appellant has placed reliance on the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, , and he argued that the case Kailash Singh v. Agarwal Export Corporation Ltd. has not been correctly decided. He contended that the said case was decided without considering the case of Major S.S. Khanna (supra). The argument that Kailash Singh''s case was decided without considering the case of Major S.S. Khanna does not appear to be correct On perusal of judgment of Major S.S. Khanna v. Brig F.J. Dillon (Supra) I find that the case was cited before learned Single Judge and court has referred to in paragraph 4 of its judgment while considering as to what is meant by ''case decided''. The reference of said case in the judgment show that the case was cited before the court, which considered it as one of case cited before it in considering what the word ''case decided" means. Otherwise, also in my opinion the case cited by learned Counsel for the revisionist do not support the argument that an order passed under Order 13 Rule 2 CPC is a ''case decided'' and revision is maintainable. The case is distinguishable The controversy before Supreme Court was that whether the meaning of word case in Section 115 CPC Is to be restricted to an entire proceedings or it includes a part of proceeding also The Supreme Court expressed the view that part of the proceeding is also a ''case decided''. In that case the Court was called upon to determine the correctness of decision of High Court of Punjab, which interfered in an order of trial court determining four issues out of several issues. The Supreme Court was not called upon to adjudicate as to whether any error in a procedural matter in respect of production of evidence will be a case decided or not, as stated earlier, I am of the opinion that the said case of Supreme Court does not support argument of learned Counsel for revisionist.

5. Another case cited by the learned Counsel for the revisionist in support of his contention that revision is maintainable is of Sri. Ram v. Ashwani Kumar AIR 1978 J & K 78 In that case an order allowing examination of witness on commission has been held to be ''case decided''. This case also do not support the argument, raised in present case The reason is that the test which is to be applied to determine whether a particular order in respect of procedural matter amounts to a case decided or not depends on the facts and circumstances of each case. This principle has been accepted even in the case of Sri. Ram v. Ashwani Kumar (Supra) procedural irregularity of an order in respect of granting permission to examine a witness is different from permitting the production of document in evidence at a subsequent stage of the case and therefore this case does not support the contention raised. I would like to mention here that when there is direct authority of this Court in the case of Kailash Singh v. Agarwal Export Corporation Ltd. with which I agree the argument of learned Counsel for revisionist in respect of contention raised on the basis of case of Sri. Ram (Supra) fails otherwise also.

6. The learned Counsel for revisionist also relied upon the case of Biswanath Satpathy and Others Vs. Subarna Dibya and Another, on merit of revision. In the case the question which came up for consideration was that by Order 13 Rules 1 and 2 CPC it has been enacted that unless good cause is shown to the satisfaction of the court the documentary evidence in possession of any party not produced in accordance with Order 13 Rule 1 CPC cannot be received in evidence at subsequent stage of the case. The case does not deal with the question of maintainability of revision against an order passed under Order 13 Rule 2 CPC which is involved in present revision.

7. For the aforesaid reason the revision is dismissed summarily.