ORDER
1. This revision under Section 115 of the CPC arises from the order dated 17-3-1998 passed by Sri S.M. Shivana Goudar, learned Civil Judge (Senior Division), Bellary, who had dismissed the revisionist-petitioner's application under Section 151 for reopening the case of the defendant and to permit him to lead further evidence.
2. The facts of the case in the nutshell are that, as per the orders passed on I.A. Nos. 24 and 95 for the examination of the disputed handwriting, a Commissioner was appointed subject to cost of Rs. 1,000/-. The defendant deposited the initial amount of Rs. 1,000/-. Thereafter it appears, that he had to deposit a sum of Rs. 2,800/- towards Commissioner's fee, but, that was not deposited. Time passed on and thereafter the Court, it appears, recalled the earlier order as the conditions have not been complied with i.e., payment of amount. Defendant moved another application I.A. No. 25 for reopening of the defendant's case and to permit him to lead further evidence. The Court below opined that averment made in I.A. Nos. 24 and 25 are all frivolous and false allegations. It opined that the amount had to be deposited within the time prescribed, but when the order has not been complied with, the defendant had not been entitled to re-submission. It further opined that applications were not bona fide and intended to protract the litigation or trial and the suit has been pending since 1988 because of the tactics played by the defendant and hence, rejected the application. The Court below also took into consideration that the defendant had already taken two years time to lead his evidence and application I.A. No. 25 had been made to protract the litigation and so dismissed the application. Feelingaggrieved from that order, the defendant has come up in revision under Section 115 of the CPC.
3. I have heard Sri Jayakumar S. Patil, learned Counsel for the revisionist-petitioner. He submitted that if the Court would have allowed the applicant to deposit the money and would have allowed the document to be sent to the handwriting expert for examination and if Commissioner would have been appointed as appointed earlier, the interest of justice would have been subserved and the applicant would not have been debarred from producing the evidence of the expert. He submitted that reason given for rejection of the application is not sufficient that it will only amount to delay, really the rejection has the tendency to further delay the proceedings.
4. Without expressing any opinion even if I take that there may be some force in the contention of the learned Counsel for the revisionist-petitioner, but that does not entitle this Court to entertain the revision. Revisional jurisdiction of this Court is circumscribed by the conditions specifically provided and contained in Section 115 and unless the conditions prescribed in Section 115 are shown to exist and fulfilled, this Court has no jurisdiction under Section 115 to interfere with the order. The first condition is that the order must have been passed by the Court subordinate to the High Court and further that the order should amount to a case decided. The third condition is that the order should not be appealable to this Court and the fourth condition is that the order must either suffer from jurisdictional error in the sense that error is of a nature which can be covered within either of the clause (a), (b) or (c) of Section 115 and lastly it has also to be established for interference of the Court that if the order impugned is allowed to stand, it may cause injustice or it may result in irrepairable loss. The very first condition that the order amounts to a case decided or not is to be established. The expression 'case decided' has been defined to mean as follows:--
'Any order or an order deciding an issue amounts to a case decided'.
Expression 'order' has been defined under Section 2(14) of the Code as follows:--
'Order means the formal expression of any decision of a Civil Court which is not a decree'.
When we talk of decision, there must be certain dispute as to the right of the party, may be in relation to proceedings or litigation, but it does not include every order i.e., passed by the Court. In this case, a direction for Commissioner to be appointed had been issued, but for non-compliance of the condition of the order, the Court had to recall and reject and finally and it did not grant further time to comply with the conditions as it would delay the proceedings particularly after the close of the evidence of the parties including that of the defendant. Such an order for process of suit has been within jurisdiction of the Court to pass. Such an order cannot amount to a case decided. Even the order of refusing aCommission has been held by many Courts in India as not to amount to a case decided. For this purpose, I may make a reference to the following decisions. In the case of Gambhir Mal Pandya v George Anthony John, a Division Bench of the Allahabad High Court vide its judgment delivered by Hon'ble Niamatulla, J., laid as follows (page 39):--
'We think that the order of the learned subordinate Judge, in so far as he refused to issue a commission for the examination of the plaintiffs was not justified, in the circumstances of the case. The question is whether this Court can interfere in revision with the aforesaid order. The learned Subordinate Judge had jurisdiction to dispose of the application for examination of witnesses on commission. His order cannot be said to be without jurisdiction, nor can the learned Judge be considered to have failed to exercise a jurisdiction vested in him by law, or to have exercised it illegally or with material irregularity only because he took an erroneous view on a question arising in the case. An interlocutory order like the one in question cannot be said to amount to a 'decision' of the case within the meaning of Section 115, Civil Procedure Code. An additional ground on which this application for revision should be rejected is that there is yet time for the learned Subordinate Judge to rectify any errors which might have crept into his proceedings. We have no doubt he will give due weight to the consideration that it is better to allow a case to take a little longer time than to run the risk of a remand by the appellate Court. In this view we think the application for revision should be rejected'.
In the case of Raj Raj Bahadur Singh v Raj Bachan Singh and the Division Bench of the then Chief Court at Lucknow also had an occasion to consider the order refusing to issue commission. It has observed that the first point to be considered is whether any case has been decided by the Court. It further held that,--
'We are of the opinion that no case has been decided by the learned Civil Judge. Mere refusal of an application to issue a commission cannot be considered to be a decision of any case'.
In the case of Sabitri Debi and Another v Baikuntha Das and Another, the Orissa High Court has opined 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' '.
Similar view has been expressed by the Division Bench of the High Court of Punjab and Haryana in the case of Smt. Harvinder Kaur andAnother v Godha Ram and Another, which has taken into consideration the amendment and explanation introduced in Section 115. In the case of Kailash Singh v M/s. Agarwal Export Corporation, Mirzapur, it was a case where an application has been moved for permission to file certain papers after framing of the issues which was rejected. Allahabad High Court had to consider a question, 'what is the meaning of 'case decided' for the purpose of Section 115?' Hon'ble Gopinath, J., as he then was, has considered this question as under:--
'Orders passed merely for the progress of a proceeding are not orders, deciding a case, and would accordingly not fall within the meaning of the expression 'case decided'. They are only steps towards the final adjudication of the case, and only regulate the procedure, and do not affect any right or obligation of the parties. Discovery or production of documents accordingly is not a matter relating to the rights and obligations of the parties in controversy in a suit, and hence an order in that regard does not amount to 'case decided''.
A reference in this connection had been made to the decision of Central Bank of India Limited v Gokal Ghand. It has further been held that,
'The Court has a discretion and while generally speaking it will be a wise exercise of the discretion to admit such evidence the question must be decided in each case in the light of the particular circumstances and to avoid delay and multiplicity of proceedings in the circumstances of the case'.
5. In the present case, the Court below exercised its jurisdiction to reject the application for reopening of evidence already closed as in its opinion, it was only going to further delay the whole proceedings. The Court had discretion and considering the circumstances, it can exercise power in favour of any party, either grant opportunity or refuse it. Any such act of the Court, it cannot be said that there is any illegality or material irregularity. The order in this case has been passed under Section 151 of the CPC. It has rejected the application. The powers under Section 151 of the CPC are discretionary and inherent powers which are to be used to avoid abuse of the process of the Court and if Court thinks that if the application is allowed the likelihood is it will create delay. May this opinion be wrong as contended by the learned Counsel, though I do not express any opinion, it does not amount to any irregularity or illegality. It is clarified herewith I find there is no merits in the revision. Section 107 of the CPC confers power on the Appellate Court to take additional evidence in the context of Order 41, Rule 27 if the Trial Court has rejected it and committed error. Further Section 105(1) also provides that no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order,affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. This particularly indicates that if there is any error or defect in the order of the Court in not granting the further time to comply with the order or reopening the further evidence and, disallowing to produce expert, it is always open to him to take that ground in memo of appeal in case the suit is decided against him and the Court below may consider it. If it considers, it may take additional evidence keeping in view the provisions of Order 41, Rule 27 and Section 107 and Section 105. This order will not come in way as the revision is dismissed on the preliminary ground as the order does not amount to be case decided and does not suffer from any jurisdictional error coming with clauses (a), (b) and (c) of Section 115 of the CPC.
Subject to the above observations, the revision petition is hereby dismissed on the initial stage of admission.