Swatanter Kumar, J.
1. The provisions of Section 115 of the Code of Civil Procedure were amended to introduce a proviso to limit and control the scope of revisional jurisdiction of the High Court. Clause (a) to proviso to Sub-section (i) of Section 115 provided that the High Court would not vary or reverse any order in the course of suit or other proceedings except where it finally disposes of the suit or other proceedings. While Clause (b) of the proviso to the same Sub-section provided that if the order passed would occasion failure of justice or cause irreparable injury to a party against whom such an order is made, then the High Court could exercise its revisional jurisdiction. The effect and scope of these limitations on the revisional jurisdiction of the High Court is the precise question that falls for determination in the present case.
2. Before adverting myself to the legal controversy it may be appropriate to refer to the necessary facts giving rise to the present petition. The plaintiffs had filed a suit on 23.8.1984 seeking a decree for permanent injunction restraining the defendants from interferring in their peaceful possession over the land measuring 139 Kanals 16 Marias owned and possessed by Niranjan Singh, the predecessor in interest of the plaintiffs. It is also stated that Niranjan Singh had mortgaged the land measuring 33 Kanals 12 Marias with possession to Thakur Singh son of Shri Ram Kishan, father of defendants No. 1 to 5 vide mortgage deed dated 21.5.1970 and 1.6.1976 for a sum of Rs. 72,00/-. The said mortgage was redeemed upon payment of mortgage amount on 3.6.1984 against valid receipt. Niranjan Singh, therefore, came to be in possession of the entire property as owner and the present plaintiffs claiming to be the legal heirs and successors-in-interest of said Niranjan Singh instituted the said suit.
3. The suit was contested by the defendants who took the plea that they are the owners of the land on the basis of a will executed in favour of defendant No. 2 by late Niranjan Singh. This claim of the defendants based on the will was also disputed by the plaintiffs.
4. The learned trial Court had framed issues and both the parties led evidence in support of their respective pleas. It is on record that the plaintiffs examined an Hand-writing expert in rebuttal evidence to prove that the alleged will stated to have been executed by late Niranjan Singh in favour of defendant No. 2 did not bear his thumb impressions and was not a valid document. It is at this stage That the plaintiffs and the defendants both filed applications for leading additional evidence while the defendants wanted to produce an Hand-writing expert in support of their case. Both these applications were dismissed vide order dated 29.8.1996. It is this order which is impugned by the plaintiffs in the present revision petition.
5. From the above facts it is clear that the controversy with regard to the execution of the Will and the defendant No. 2 being its beneficiary and also with regard to redemption of the mortgage were the real matters in dispute before the learned trial Court. At this juncture it may be appropriate to refer to some extracts of the plaint because the various arguments raised on behalf of the parties revolve around the basic pleadings of the parties. Paragraphs No. 2 and 4 of the plaint read as under :-
'2. That the aforesaid Niranjan Singh had mortgaged land measuring 33 Kanals 12 Marias, bearing Khewat/Khatauni No. 29 min/34, 35, 30/36, Khasra Nos. 131/16 min (3-6), 131/17(6-3), 18(6-3), 23(8-0), 24(8-0), 134//3/l(4-0), 4(8-0) with possession to Thakur Singh son of Ram Kishan father of the defendants No. 1 to 5 vide registered mortgage deed dated 21.5.1970 and 1.6.1972 for a sum of Rs. 7200/-.'4. 'That the aforesaid land measuring 44 Kanals 12 Marias was got redeemed by Shri Naranjan Singh deceased after making the payment of mortgage amount of Rs. 7200/- to the defendants No. 1 to 5 on 3.6.1984 and got the actual possession of this land from the defendants No. 1 to 5 and the defendant had issued a valid receipt of payment of Rs. 7200/- on the back of the mortgage deed dated 21.5.1970 on 3.6.1984 and returned the original mortgage deed to Shri Niranjan Singh deceased. The original mortgage deed is with the plaintiffs and photostat copy thereof is attached herewith.
6. The reply to these paragraphs in the amended written statement reads as under :-
'Para No. 2 of the plaint is correct to the extent that the said Niranjan Singh had mortgaged land with Thakur Singh father of defendants No. 1 to 5. The land was mortgaged vide registered mortgaged deed dt. 21.5.1976 and 1.6.1972 for Rs. 7200/-.
Para No. 4 of the plaint is totally incorrect. The land in question was never got redeemed by Niranjan Singh deceased and the question of any payment does not arise at all. The receipts, if any, are fake and of no consequence. The allowed receipt had been ignored by the A.C. 1st Grade and alleged mutation of redemption has been rejected.'
7. The plaintiff Hazara Singh when examined himself as PW 3 made a clear reference to redemption of mortgage and the receipt executed by the defendants. This receipt, however, was not exhibited in the statement of PW 3, but was subsequently marked as Mark 'A'. PW 3 also stated that he had been in continuous possession of the entire land and the Girdawari for the said land was recorded in his name.
8. It is clear from the above facts and even the evidence adduced on record that the question of possession as well as mortgage and its redemption, is in serious controversy right from the beginning of the suit. When a material controversy is raised before the Court in a suit, the finding on all issues arising in the suit must be decided in order to avoid un-necessary prolongation of litigation and its multiplicity by leaving a scope for initiation of other proceedings.
9. The petitioner filed an application for leading additional: evidence and for ex-amining of the expert in regard to proving the thumb impression mark of Niranjan Singh. It was averred in the application that the evidence could not adduced completely on the earlier occasion. The application was opposed by the defendant/non-applicants on the ground that the application had been filed primarily to delay the suit and with ulterior motive. This application was dismissed by the learned trial Court vide the impugned order. What appears to have weighed with the learned trial Court is that plaintiffs could have produced this earlier; suit was pending for a considerable period; no good reason was stated in the application and that the parties were filing frivolous applications. Not only this, the Court directed that the party should not file any such applications.
10. It is contended by the learned counsel for the petitioner that keeping in view the nature of the case and a bonafide error on the part of the plaintiffs that they could not earlier produce the complete evidence, subsequently the learned trial Court should have allowed the application in the interest of justice. On the other hand, learned counsel for the respondents has raised an objection as to the very maintainability of this revision petition. According to him the order passed by the trial Court on an application under Order 18 Rule 17-A C.P.C. is not revisable in view of the provisions of Clause (a) of proviso to Section 115 of the Code of Civil Procedure. On merits it is contended that there is no reason why plaintiffs could not produce this evidence earlier when this evidence was within the knowledge of the plaintiffs. As such application has been rightly rejected by the learned Courts below.
11. I would first proceed to discuss the objection raised by the learned counsel for the respondents as to the very maintainability of this revision petition; In order to appropriate this contention it will be appropriate to refer to the provisions of Section 115 of the Code as under :-
'115. Revision :- (1) The High Court may call for the record of any case which has been decided by any 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 illegality or with material irregularity,
the High Court may make such order in the case as it thinks fit.
Provided that the High Court shall not, under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) 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.
Explanation :- In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
12. It is a settled principle of law that provision of a procedural Court should be construed so as to further the ends of justice rather than to frustrate the same. Subsection (1) of Section as it existed prior to the amendment had restricted the scope of the power exercisable by the High Court in its revisional jurisdiction. Clauses (a) to (c) of Sub-section (1) had clearly defined the limitation in nature of the cases which would be amenable to the revisional jurisdiction of the High Court. Proviso to Sub-section (1) of Section 115 of the Code was introduced by Civil Procedure Code Amendment Act, 1976,
13. The legislative intention behind introducing the proviso to this Sub-section, appears to be to further clarify the cases which should be subject to the revisional jurisdiction of the High Court. In order to have a comprehensive empathy, it will be appropriate to read the entire Sub-section (1) of Section 115 of the Code collectively, where Clause (a) of the proviso to the Section clearly defines the cases which are not subject to revisional jurisdiction of the High Court In other words, the High Court is not to vary or reverse any order made or any other order deciding an issue in the course of a suit of other proceedings, unless the order would have finally disposed of the suit or other proceedings. An order which has the effect of finally disposing of the proceedings or the suit, but against which no appeal lies to the High Court or to any subordinate Court, would be revisable again within the preview and scope of Clauses (a) to (c) of Sub-section (1) of Section 115 of the Code. But Clause (b) to the proviso to Sub-section (1) of Section 115 of the Code has been intentionally worded by the Legislature to cover cases where an order passed by the trial Court would occasion a failure of justice or would cause irreparable injury to the party against whom the order is made.
14. The language of this clause must be given wide meaning and should not be interpreted so as to frustrate the very purpose of introduction of this clause. The expression, 'failure of justice' or 'cause irreparable injury to a party' clearly shows the legislative intention of ensuring that ends of justice must be achieved. The basic rule of law is intended to take precedence over narrow scope of interferring in orders even if they would not have the effect of finally disposing of the suit or the proceedings. The expression 'or' occurring between Clauses (a) to (c) of the proviso to Sub-section (1) of Section 115 of the Code, obviously made the matters clear to the extent that the High Court would interfere in the orders passed by the Courts below if the case falls in either of the clauses. In other words the High Court could interfere in the orders in revision if they fall under Clause (b) of the proviso alone. Of course, the cases falling under Clause (b) must again be covered under Sub-clauses {a) to (c) of Sub-section (1) of Section 115 of the Code.
15. Exercise of jurisdiction by the Courts, subject to the revisional jurisdiction of this Court, must be proper- and in confirmity with law. Failing to exercise the jurisdiction so vested in them, and if they act in exercise of its jurisdiction illegally or with material, irregularity and this causes failure of justice of causes irreparable injury to a party against whom such an order is passed, this Court would certainly have the jurisdiction to interfere with the order in a revision even if it is not an order which has finally or has the effect of finally disposing of the suit or other proceedings.
16. The principle of good conscience and equity appears to be the underlying factor under Clause (b). It is true that equity does not make law but assists law. The failure of justice and irreparable injury to a party has to be construed on equitable principles while keeping in mind the provisions of Code of Civil Procedure. The intention should be to exercise the jurisdiction if the provisions of Section 115 of the Code are satisfied rather than to strife such revisional jurisdiction. It is neither permissible nor would be proper to lay down any hard and fast rule or to provide a straight jacket formula which would be universally applicable to all cases. Every case would have to be judged on its own merits.
17. The learned counsel for the respondents relied upon a judgment of this Court in the case of Surjan Singh v. Paras Ram (deceased) by LRs. and Ors., (1994-3)108 P.L.R. 503, while placing serious reliance upon the following observations passed by the learned Judge:-
'The trial Court had declined the request of the petitioner to produce additional evidence. The main suit is yet to be decided. In view of proviso (a) added to Section 115 of the Code of Civil Procedure in 1976 revision against the aforesaid order cannot be entertained as the order, even if made in favour of the petitioner allowing the application for producing additional evidence, would not have finally disposed of the suit. The revision is liable to be dismissed on this ground as well.'
18. As is clear from the above observations the learned Judge had not noticed the provisions of Sub-clause (b) to the Proviso to Sub-section (1) of section 115 introduced by the Amendment of 1976. The observations of the Hon'ble Judge are based upon Clause (a) of the proviso alone and as such are of no assistance to the facts and circumstances of the present case. Further more, with great regards and respect, I would state that it does not deal with the provisions of Section 115 of the Code in their entirely and in a composite manner. In the entire judgment there is only above observations without any further discussion on the subject. In my humble opinion the observations are not intended to lay down an absolute proposition of law but are some observations applicable to the facts and circumstances of that case. These observations, as far as settling a principle of law may have to be construed as pre-in-curium.
19. The provisions of Section 115 of the Code must be read in their entirely to really give effect to these provisions and to achieve the object underlying the basic rule of law and ends of justice. The observations made by the learned Judge in the case of Surjan Singh (supra) cannot be treated as a complete bar to all cases which come before the High Court under its revisional jurisdictional merely on the strength of Clause (a) to the Proviso. If that clause is read as an absolute bar to all cases, irrespective of the cases falling under Clause (b) of the Proviso, then it would be a decision which will be ex-facie beyond the plain ratio of the statutes and would defeat the very purpose of the statutes itself. In this regard reference can be made to the judgment of the Hon'ble Supreme Court in the case of Kamal Improvement Trust, Kamal v. Smt. Parkash Wanti (Dead) and Anr., J.T. 1995(5) S.C, 151.
20. Equity and these statutory provisions, keeping in mind the cumulative effect of the entire provisions of section 115, cannot be permitted to remain stranger to each other. Thus, these provisions must receive an equitable construction rather than to do injustice and frustrate the object to Sub-clause (b) to the proviso. Of course, it is a cardinal rule of interpretation that a proviso would not travel beyoad the subject matter covered by. the Section itself. The provision contained in Sub-section (1) of Section 115 of the Code vests the High Court with revisional jurisdiction subject to Clauses (a) and (b) and the cases not covered under Sub-section (2) of section 115 of the Code. While Sub-clauses of the Proviso to section 115 of the Code cannot travel beyond the provisions of Sub-section (1), but they must add and be so construed that the proviso must not become redundant and ineffective.
21. Thus, the only alternative by which this could be achieved is that Clause (b) to the Proviso should be given a liberal construction. The cases which fall under this clause would not become unsustainable because they do not satisfy the conditions postulated under Clause (a) of-the Proviso so far they are in conformity and do not infringe the conditions postulated in Clauses (a) to (c) of Sub-section (1) of Section 115 of the Code.
22. Coming to the merits of the present case, a plea which was taken up by the plaintiffs and disputed by the defendants and parties were at issue with regard to a material controversy of the case Was with regard to the possession and redemption of mortgage of the property in question. In order to fully and finally determine the controversy between the parties and to give a composite and complete executable relief to either party, it was neeessary that the said controversy should be settled upon full evidence. The parties have already led partial evidence in this regard and the application was filed for leading additional evidence, of course, at a belated stage.
23. In order to prove the Case the applicant-plaintiffs had prayed for examination of a Hand-writing Expert to prove a very material in regard to endorsement on the Mortgage-deed and payment of amount for redemption of the land in question. The respondents are obviously not likely to suffer any prejudice if the said evidence was permitted to be led. The mere delay in filing such an application for additional evidence. The language of Order 18 Rule 17-A of the Code does not define the stage at which such an application can be moved. It only says where the party after due deligence was not able to produce evidence, can produce evidence at a later stage subject to such terms and conditions as the Court may consider just and proper. In the present case plaintiffs were not able to adduce evidence for an error on the part of the counsel and it can neither be just nor fair if the party is made to suffer for a bonafide error on the part of the counsel specially in view of the fact that pleadings in that behalf were specific and party could read evidence within its pleadings, as per accepted norms.
24. The learned counsel appearing for the petitioners in support of his case relied upon the case of Arjan Singh v. Jagdish Kaur and Anr., (1990-2)98 P.L.R. 319; Weston Electmnics Ltd. v. Chand Radio and Ors., (1988-1)93 P.L.R. 690 and Ved Parkash Saint v. Mohinder Lal, (1993-3)105 P.L.R. 395. He farther contended that the document was already on record and for bonafide mistake the compete evidence could not be produced earlier. He also contended that production of Hand-writing Expert is material evidence and if the same is not permitted to be ad-duced it will deny a fair trial to the plaintiffs and would defeat the ends of justice. The consistent view of this Court in the above judgments is that the additional evidence of the document(s) the genuinity of which is not in doubt, additional evidence of such documents specially where it will help the Court in effectively adjudicating the matter, should not be denied.
25. From the afore-stated pleadings of the parties, the averments made in the application and the fact that trial of the suit has not concluded as yet and the defendants in the suit have not assailed the impugned order, it will be in the interest of justice to permit the plaintiff-applicants to lead the additional evidence prayed for. In view of the above discussion, I am of the considered view that the present revision petition is maintainable as the impugned order has vested the petitioners with consequences which are bound to result in failure of justice and/or would certainly cause irreparable injury to the petitioners in regard to proving their case. This order, in fact, would help in Finally putting an end, to the pleas raised with regard to redemption of mortgage by the petitioners before the conclusion of the trial itself.
26. Consequently, this revision petition is allowed, the impugned order dated 29.8.1996 of the learned trial court is set aside and the application for additional evidence filed by the plaintiffs-petitioners is allowed. The petitioners shall produce before the trial Court the additional evidence at their risk and responsibility and would not be entitled to any further opportunity. Interim order passed by Shri H.S. Bedi, J. dated 12.9.1996 is vacated. The parties are directed to appeal before the trial Court for directions on 2.2.1998. There shall be no orders as to costs.