ORDER
1. Though this matter was listed for preliminary hearing, the same was taken-up for final disposal by consent of both sides.
2. This is a revision petition filed by the defendants in O.S. No. 10182/85, on the file of the IV Addl. City Civil Judge, Bangalore, under Sec. 115 of C.P.C., challenging the validity of the order passed by the Addl. City Civil Judge, Bangalore, on 27-2-96 in O.S. No. 10182/85, rejecting the request of the petitioner's Counsel to exhibit an affidavit sworn to by P.W. 1 (the respondent/plaintiff). The respondent is the plaintiff in O.S. No. 10182/85, on the file of the IV Addl. City Civil Judge, Bangalore. The plaintiff has filed the suif for a declaration declaring the plaintiff and his family members have a right of common enjoyment of the suit schedule property and usufruct from the coconut and other fruit yielding trees, directing the defendants to pay regularly the plaintiffs share of usufruct from coconut and fruit trees and on their failure, the plaintiff to exclusively take 3 out of 12 coconut trees and also for a permanent injunction restraining the defendants, their agents etc. from keeping any boarders, lodgers or any other person except those whose names have been mentioned in the 'Will' and from preventing or interfering with and his family members of their peaceful possession and enjoyment of the suit schedule property and to remove the boarders presently occupying a portion of the suit property and not to let out any portion of the suit to any person whatsoever and restraining from alienating, encumbering or disposing of the suit schedule property in any manner.
2A. At the trial of the suit, when the plaintiff was being cross-examined by the Counsel for the defendants, after putting certain preliminary questions with respect to an affidavit said to have been sworn by the plaintiff on 22-9-82, wanted to get the said affidavit marked through P.W. 1 and at that stage the other side look objection for marking of the affidavit. Thereupon, the learned Addl. City Civil Judge heard the learned Counsel for the parties in detail on this aspect of the case and passed an order rejecting the request of the Advocate for the defendants for making the affidavit, being of the view that the affidavit sworn to by the plaintiff cannot be marked in evidence. This order of the Court-below is the subject-matter of challenge in this revision petition.
3. Learned Counsel for the petitioner contended before me that the impugned order made by the Court below is opposed to law and the facts of the case. According to the learned Counsel for the petitioners, the Trial Court while interpreting the law of evidence which excludes affidavits, failed to notethat in this case, the maker of the affidavit P.W. 1 in his deposition on 16-10-95 has deposed about the affidavit confronted to him that the affidavit shown to him bears his signature on each of, the pages and this according to the learned Counsel clearly amounts to consent to mark the affidavit as per the decision reported in M/s. Parekh Brothers v. Kartik Chandra Saha, : AIR1968Cal532 . The learned Counsel contended that the Trial Court ought to have relied upon the admission of P.W. 1 in regard to his signature put on the affidavit and mark the affidavit as an exhibit. He also contended that the Trial Court failed to note the relevancy of the said affidavit in regard to issue Nos. 7 and 12 raised in the suit as P.W. 1 wants to challenge the will made by his mother Mrs. Rosie Mascarenhas on the ground that the petitioners 1 and 2 herein being executors of the Will have attested it, which, fact has been disproved in the affidavit of P.W. 1 and the suit O.S. No. 10182/85 is not maintainable without revoking the Will and the probate granted in P & SC. 10075/82 dated 28-7-83, wherein he had no objection for grant of the probate. He, therefore, contended that the Trial Court failed to exercise the jurisdiction duly vested in it in law by not properly interpreting the admitted signature of P.W. 1 on the affidavit which has been Sworn to by him. Further, he, contended that the petitioners are greatly prejudiced in the Trial Court's refusing to mark the affidavit admitted P.W. 1.
3A. Learned Counsel for the respondent contended that the order of the Court-below will not fall within the category of 'a case decided' and hence it is not amenable to revision under Sec. 115 of C.P.C. He also contended that the affidavit is not an evidence within the meaning of Section 4 of the Evidence Act and it cannot be treated as evidence in the suit. He therefore, contended that the Trial Court was well within its powers in passing the order under revision and it does not suffer from any illegality so as to call for interference by this Court under Sec. 115 of C.P.C. In support of his contentions, he relied upon the following decisions:
(1)(1980) 2 Kant LJ 305; (2) 1988 (3) SupplKant LJ 208 (K. N. Venkataramanaiah Setty v. B. N. Srinivas); (3) : AIR1977Kant111 (Murigappa v. Channappa); (4) : AIR1968Cal532 (M/s. Parekh Brothers v. Kartick Chandra Saha).
3B. There could be no dispute that the revisional powers of this Court under Sec. 115, C.P.C. cannot be invoked unless the following conditions exist:
(1) There must be a case decided by a Court; (2) The Court deciding the case must be subordinate to the High Court, and (3) No appeal must lie (to the High Court) against the decision; and (4) In deciding the case, the subordinate Court must appear to have-
(a) exercised a jurisdiction not vested in it by law, or
(b) failed to exercise a jurisdiction vested in it by law, or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity.
4. In this context, it is required to be stated that the meaning of the expression 'case' being of comprehensive import; it includes civil proceedings other than suits and it is not restricted to the entirety of the I proceedings in a civil suit. To interpret 'case' as an entire proceeding and not a part of proceeding would be to restrict the exercise of the supervisory jurisdiction of the High Court, resulting in gross injustice to an aggrieved litigant. In the view that 'case' includes a part of a case, there is no escape from the conclusion that a revisional jurisdiction may be exercised irrespective of the question whether an appeal lies from the I ultimate order or decree passed in the suit. But every order in the suit cannot be regarded as a case decided. 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. A complete and exhaustive definition of case is not possible. It is something wider than suit, but at the same time it is not so wide as to include every order passed during the trial of a suit or a proceeding. It is, however, no longer possible to claim that a case decided could relate only to main suit and not any other proceedings betweenthe initiation of the suit and its final adjudication. In'R. S. Khanna v. F. J. Dillon, : [1964]4SCR409 , the Hon'ble Supreme Court has held as under (para 11 and 12) :--
'The expression 'case' is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not, subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression 'case' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.'
5. It has to be mentioned that from the inception to the final disposal of the suit, certain proceedings may crop-up and they have to be decided in such proceedings and if in such proceedings, some right obligation of the parties in controversy gets decided that would amount to case decided. Therefore, as I have already stated that in the view case includes a part of a case there is no escape from the conclusion that revisional jurisdiction may be exercised irrespective of the question whether an appeal lies from the ultimate order or decree passed in the suit.
6. In 'K. N. Venkataramanaiah Setty v. B. N. Srinivasa, 1988 (3) Suppl. Kant LJ 208, this Court has held as under :--
'Whether a document is admissible or inadmissible is a decision which the Court has to take at the appropriate stage. If an admissible document is not admitted, it will be a good ground in appeal when the suit is disposed of if any thing turns on that document. If an inadmissible document is admitted and thereby a party is prejudiced then also it will be a good ground to get the adverse findings set aside in appeal. Merely becausethe Court either in ignorance of law or contrary to law declined to admit a document in evidence, this Court cannot under Sec. 115 of the Civil Procedure Code interfere with that order. It is seen in proceedings of discretionary nature the Court has to exercise its discretion in regard to the admissibility or in admissibility in favour of one view or the other. That is no reason why this Court should interfere at this stage because another view is possible.'
In that case the original document was said to have been registered in the year 1920 and the apprehension on the part of the plaintiff who objected to the admissibility of the certified copy of the partition deed was that the defendant may claim presumptive value provided for under Section 90 in regard to due execution of the document, and it is in the light of that argument the trial Judge held that the object of producing the document was not to prove the contents of the document but to claim the presumption under Section 90 of the Evidence Act. On the facts and circumstances of that case, this Court held that that is a matter which ultimately depends upon the totality of the evidence recorded and the issues framed and decided by the Court and therefore the proper time at which the relevancy of this document both in regard to its admissibility as well as its contents can only be decided at the stage of appeal if necessary and not at this stage.
7. In 'Murigappa v. Channappa, : AIR1977Kant111 , this Court held that by upholding or overruling objection to a question put to a witness no case is decided and hence the order of the Trial. Court not open to revision. In that case, while relying upon a decision of the Supreme Court reported in 'Baldevadas Shivlal v. Filmistan Distributors (India) Private Ltd., : [1970]1SCR435 , the learned Chief Justice Mr. G. K. Govinda Bhat, as his Lordship then was, proceeded to observe as under (para 4) :--
'It is not shown how this is a case 'decided' by a Court subordinate to the High Court in order to enable this Court to invoke its jurisdiction under S. 115 of the C.P.C., In Baldevadas Shivalal v. Filinistan Distributors(India) Private Limited, : [1970]1SCR435 , the Supreme Court has laid down that 'every order of the Court in the course of a suit does not amount to a case 'decided', within the meaning of S. 115, CPC. By overruling an objection to a question put to a witness and allowing the question to be put, no case is 'decided'. The instant case is a converse one where an objection is upheld. When the trial Judge allows an objection and disallows a question put to the witness or when he overrules an objection and allows the question put to the witness, it cannot be said that the case is 'decided' within the meaning of S. 115 of the C.P.C. Therefore, the revision petition under S. 115, CPC is not maintainable. Accordingly, this revision petition is dismissed but without costs.'
8. In this context, it is useful to refer to the observations made by the Supreme Court in : [1970]1SCR435 which reads as under (para 10) :--
'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 CPC.'
9. In the cases cited above, this Court as well as the Supreme Court were dealt with the cases where certain questions were either disallowed or allowed by the trial Court and it was held that it was not a case decided but they do not delineate extensively as to adjudication of what types of rights or obligation of the parties would amount to a case decided. It has, however, been observed by the Supreme Court that 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 and then it would amount to a case decided. Therefore, it has to be mentioned in this context that the decisive factor to find out the revocability of an order is whether by such order right or obligation of the parties in controversy gets decided. The right or obligation need not necessarily have a nexus to the main lis and in the progression of the suit towards its final adjudication and the final resolution of the controversy betweenthe parties. Very many rights and obligations do crop-up and they have foundations both in substantive law as well as in procedural law and if they get decided by such interlocutory orders, they are certainly revisable.
10. In the instant case, during the course of the trial of the suit, when the plaintiff was being cross-examined by the learned counsel for the petitioners/defendants certain questions were put to P.W.1 in relation to an affidavit said to have been sworn to by him in a Probate proceedings and also elicited from P.W. 1 that the said affidavit bears his signature on each page and at that stage, an objection was raised by the other side that the affidavit cannot be marked in evidence and the trial Court by a separate order upheld the said objection. It is stated that the said affidavit contained certain admission and the endeavour of the defendants Counsel in getting the said affidavit marked through P.W. I was to confront the admission made by him in the affidavit. It is not in dispute that P.W. 1, to whom the affidavit was confronted in the cross-examination, was the maker of the affidavit and in fact, he has also admitted that it bears his signatures at each page. In this context, it may be mentioned that the statements made in an affidavit may be used as admissions under Sec. 17 and the sections that follow, like statements made by a person in the written statement or in another suit. In this connection, a reference may be made to a decision of the Supreme Court in the case of Basant Singh v. Janki Singh, : [1967]1SCR1 , wherein it is held as under :
'All the statements in the plaint are admissible in evidence. The plaintiff can rely upon a statement in the plaint with regard to a matter in issue as an admission, though she is not prepared to accept the correctness of the other statements in the plaint. Nor is the Court bound to accept all the statements as correct. The court may accept some of the statements as correct and reject the rest.
Sec. 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. An admission made by a party ina plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.'
Thus, the statement made in an affidavit may be used as an admission. As a matter of fact, any statement made in oath may be used against him as an admission. In uncontested proceedings under the probate and other like matters, the Court may direct any fact to be proved by an affidavit. In this case also, it is not in dispute that the affidavit which the learned counsel for the defendants wanted to confront to P.W.1 was an affidavit sworn to by P.W.1 himself in a previous Probate Proceedings. Therefore, the learned counsel wanted to rely on a certain statement made by P.W. 1 in his affidavit by confronting the affidavit in the cross-examination, by prefacing certain questions in this regard and after getting and mission from P.W. 1 that it contains his signature at each page. Therefore, the main object of the learned counsel for the defendants in this case was to confront a statement made by P.W. 1 in his affidavit filed in the probate proceedings. Though the affidavit as such cannot be treated as a substantive evidence, but the contents of the affidavit can be proved through the maker. Obviously, it is for this reason, the learned counsel appearing for the defendants wanted to confront the affidavit to the maker thereof viz., P.W. 1 which has been seriously objected to by the other side and the same has been upheld by the Court below. It is required so be stated that the party has got a right to place evidence which he could require to substantiate his case before the Court and of course, subject to the law of evidence and of the Code and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive such evidence. The law of evidence enjoins upon the party to prove the fact which he relies on and in that sense, an obligation is cast upon the party and if he fails to discharge that obligation, adverse consequences will follow and will have to face the repercussions of the same. This right of the party to adduce evidence gets adjudicated in the interlocutoryproceedings. When there is a decline by the Court to permit the party to confront the statement made in the affidavit to the maker thereof, the order certainly disposes of the right claimed by the party to place the requisite evidence in this behalf. The question as to whether a particular order adjudicates some rights or obligations of the parties in controversy will depend upon the nature of the right or obligation and it is not possible to lay down a uniform rule. Having regard to the facts and circumstances of this case, it cannot be said that the impugned order did not decide any issue or some right or obligation of the parties in controversy. Here, the right of the party to adduce evidence in substantiation of his case has been shut out and the implication of the denial of such right will naturally prejudice the right of the party to adduce evidence on his behalf to substantiate his claim. It is hardly required to be stated that the admission of a party is the best evidence in the case. By this piece of evidence, the endeavour of the learned counsel for the defendants was to disprove the fact that the executors of the 'Will' have attested the same. Shutting out such evidence which a party is entitled to place before Court to substantiate his case, definitely decides the right of the party, adversely against him and in this view of the matter, the order passed by the Court below is a case decided and apart from that, on merits the order passed by the Court below comes within the mischief of Section 115 of C.P.C., Having regard to the facts and circumstances of this case, I am of the view that there has been a failure to exercise jurisdiction vested in it by the Court below to a patent misconception of the position and this obliges me to interfere with the impugned order under revision.
For the reasons stated above, this revision petition is allowed. There will be no order as to costs. The Court below is directed to permit the learned counsel for the defendants to confront the statements made by P. W. I in the affidavit sworn to by him in the Probate Proceedings.
11. Petition allowed.