# Defendants v. Laxmi Narain and another

- **Citation:** (2007) 1 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-29
- **Case number:** Civil Misc. Writ Petition No. 53099 of 2004
- **Bench:** A.N. Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendants-v-laxmi-narain-and-another-40828
- **Pages:** 6

## Headnote

Code of Civil Procedure-Section 115Revision-against the order of rejection to
issue commission-held-neither any issue
decided
nor
the
right
of
parties
adjudicated-not amount to case decidedrevision not maintainable.

Held: Para 16

Thus what is clearly decipherable from
the aforesaid discussion is that before a
Revision can be entertained in exercise
of power under Section 115 C.P.C., the
order which is said to be assailed under
Revisional jurisdiction has to be a case
decided within the meaning Section 115
of C.P.C. In view of the fact, by rejection
of
the
application
issuance
of
a
Commission, neither any issue is decided
nor any of the rights of the parties are
adjudicated upon, therefore, such an
order does not amount to a case decided
and in the considered opinion of this
Court the Revision against the same is
not maintainable.
Case law discussed:
2000 JT (7) SC-379, 2003 (6) SC-465, 2002
(49) AIR 110, 2003 (3) AWC-2198, 1994 ARC
(2)-204, 1990 ARC (1) 8

(Delivered Hon'ble A. N. Varma. J.)

The opposite party no. 1, i.e. the
Plaintiff before the trial court, instituted a
Suit, being Suit No. 209 of 1986, for
specific performance of contract against
the petitioners, i.e. Defendants. During
the pendency of the proceedings the
petitioners preferred an application for
issuance of a Commission. The trial court
vide its order dated 01.07.2004 rejected
the said application, against which the
petitioners approached the District Judge
in Revision under Section 115 of C.P.C.,
who vide its judgment and order dated
15.10.2004 dismissed the same on the
ground of maintainability. It is against the
said
judgment
and
order
that
the
petitioners have approached this Court
through the instant writ petition.

## Text

208 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
8. The writ petition is disposed of as
above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2006

BEFORE
THE HON'BLE A.N. VERMA, J.

Civil Misc. Writ Petition No. 53099 of 2004

Ram Ishwar @ Rameshwar and others

...Defendants-Petitioners
Versus
Laxmi Narain and another...Respondents

Counsel for the Petitioners:
Sri H.S.N. Tripathi
Sri P.S. Tripathi

Counsel for the Respondents:
Sri Pramod Kumar Jain
S.C.

Code of Civil Procedure-Section 115Revision-against the order of rejection to
issue commission-held-neither any issue
decided
nor
the
right
of
parties
adjudicated-not amount to case decidedrevision not maintainable.

Held: Para 16

Thus what is clearly decipherable from
the aforesaid discussion is that before a
Revision can be entertained in exercise
of power under Section 115 C.P.C., the
order which is said to be assailed under
Revisional jurisdiction has to be a case
decided within the meaning Section 115
of C.P.C. In view of the fact, by rejection
of
the
application
issuance
of
a
Commission, neither any issue is decided
nor any of the rights of the parties are
adjudicated upon, therefore, such an
order does not amount to a case decided
and in the considered opinion of this
Court the Revision against the same is
not maintainable.
Case law discussed:
2000 JT (7) SC-379, 2003 (6) SC-465, 2002
(49) AIR 110, 2003 (3) AWC-2198, 1994 ARC
(2)-204, 1990 ARC (1) 8

(Delivered Hon'ble A. N. Varma. J.)

The opposite party no. 1, i.e. the
Plaintiff before the trial court, instituted a
Suit, being Suit No. 209 of 1986, for
specific performance of contract against
the petitioners, i.e. Defendants. During
the pendency of the proceedings the
petitioners preferred an application for
issuance of a Commission. The trial court
vide its order dated 01.07.2004 rejected
the said application, against which the
petitioners approached the District Judge
in Revision under Section 115 of C.P.C.,
who vide its judgment and order dated
15.10.2004 dismissed the same on the
ground of maintainability. It is against the
said
judgment
and
order
that
the
petitioners have approached this Court
through the instant writ petition.

2. I have heard Sri H.S.N. Tripathi,
learned counsel for the petitioners as well
ash Sri P.K. Jain, learned counsel for the
opposite party no. 1.

3. Sri Tripathi submitted that the
learned
courts
below
committed
a
manifest error in dismissing the Revision
on the ground of maintainability.

As per his submission the application
which was preferred for issuance of
Commission was for the purpose to
ascertain as to whether or not the bricks
which were supplied to the opposite party
no. 1, were from the brick klin of the
petitioner and the money which had been
paid to them pertained to the cost of the
said bricks and not as an advance in
respect of the alleged agreement. In
1 All] Ram Ishwar @ Rameshwar & others V. Laxmi Narain and another
209
support of his case he placed reliance
upon (a) Judgement Today 2000 (7) SC
379- Shreepat vs. Rajendra Prasad &
Others, (b) Judgment Today 2003 (6) SC
465 - Surya Dev Rai Vs. Ram Chander
Rai & Ors., (c) 2002 (49) A.I.R. 110 -
Smt. Soni Vs. District Judge, Allahabad
and others, (d) 2003 (3) AWC 2198 (SC)
- Shiv Shakti Co-operative Housing
Society, Nagpur vs. Swaraj Developers
and others.

4. In opposition Sri P. K. Jain
submitted that the order rejecting an
application for issuance of Commission is
not revisable as it is not a case decided
within the meaning of Section 115 C.P.C.
As per his submission the learned court
below was perfectly justified in not
interfering with the order dated 1.7.2004
as the same neither adjudicated upon an
issue, nor decided any rights of the
parties. In support of his case he placed
reliance upon 1994 (2) Allahabad Rent
Cases 204 - Munshi Lal Agarwal and
others V s. IXth A.DJ. Lucknow and
others and 1990 (1) Allahabad Rent Cases
page 8 Hajari Lal Vs. Siya Saran and
others. He further submits that in a Suit
for specific performance of contract with
regard to supply of the bricks can be
established by other evidence and not by
issuing the Commission and getting it
ascertained through Commission.

5. Section 115 of C.P.C., as
amended and applicable to State of U.P.
reads as follows:
"115. Revision.--The High Court, in
cases arising out of original suits or other
proceedings (of the value exceeding one
lakh rupees or such higher amount not
exceeding five lakh rupees as the High
Court may from time to time fix, by
notification published in the Official
Gazette including such suits or other
proceedings instituted before the date of
commencement of the Uttar Pradesh Civil
Laws (Amendment) Act, 1991, or as the
case may be, the date of commencement
of such notification), and the District
Court in any other case, including a case
arising out of an original suit or other
proceedings instituted before such date,
may call for the record of any case which
has been decided by any court subordinate
to such High Court or District Court, as
the case may be, and in which no appeal
lies thereto, and if such subordinate court
appears-

(a) to have exercised a jurisdiction not
vested in it by lay; 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 i
material irregularity; the Hi or the
District Court, as the case may be,
may make such order in the case as it
thinks fit;

Provided that in respect of cases arising
out of original suits or other proceeding of
any valuation, decided by the District
Court, the Hi alone shall be competent to
make an order under this section.
Provided further that the Hi or the District
Court shall not under this section, vary or
reverse any order including an order
deciding an issue, made in the course of a
suit or other proceeding, except where,-
(i) the order, if so varied or reversed,
would finally dispose of the suit or other
proceedings; or
(ii) the order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against
whom it was made.
210 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
*(Provided also that where a proceeding
of the nature in which the District Court
may call for the record and pass orders
under
this
section
was
pending
immediately before the relevant date of
commencement referred to above, in the
High Court, such Court shall proceed to
dispose of the same.)
Explanation.--In
this
section,
the
expression 'any case which has been
decided' includes any order deciding an
issue in the course of a suit or other
proceedings."

6. A perusal of the aforesaid
provision shows that the High Court in
cases arising out of original Suits or other
proceedings and District Courts in any
other cases including a case arising out of
original Suits and other proceedings may
call for the record of any case which has
been decided by any court subordinate to
such High Court or District Court.

7. Explanation-I appended to the
said Section defines the expression "any
case which has been decided, which
includes any order deciding an issue in
the
course
of
the
Suit
or
other
proceeding". The application made for
issuance of a Commission and decision
rendered thereon does not decide any
issue in the course of the Suit or other
proceedings. Unless any issue which
decides the rights of the parties is dealt
with and adjudicated upon by the court
subordinate to High Court or District
Court, as the case may be , the case
cannot be said to have been decided.

8. In Sreepat V s. Rajendra Prasad &
Ors. (supra) the identity of land which
was subject matter of dispute was raised.
The Apex Court observed in order to
ascertain the identity of the land the
issuance of Commission was required. In
para 4 the Apex Court had observed as
follows:

"4. In our opinion, this contention is
correct. Since there was a serious dispute
with regard to the area and boundaries of
the land in question, especially with
regard to its identity, the courts below,
before decreeing the suit should have got
the identify established by issuing a
survey commission to locate the plot in
dispute and find out whether it formed
part of Khasra No.257/3 or Khasra No.
257/1. This having not been done has
resulted in serious miscarriage of justice.
We consequently allow the appeal, set
aside the order passed by the courts below
as affirmed by the High Court and remand
the case to the trial court to dispose of the
suit afresh in the light of the observations
made above and in accordance with law."

9. In the case at hand there is no
question of identity of land and therefore,
regarding establishment of the same the
issuance of Commission was not required.
The said case does not have any
application as such.

10. In Surya Dev Rai Vs. Ram
Chander Rai & Ors. (Supra), the Apex
Court observed that those interlocutory
orders passed by the subordinate court
which are amenable the Revisional
jurisdiction.
Supervisory
jurisdiction
under Article 226 of the Constitution of
India would be applicable. This is also not
the case in the present dispute, therefore,
the said case has no application.

11. In Smt. Soni Vs. District Judge,
Allahabad & Others (supra) the question
was also to whether or not the Plaintiff is
entitled to exparte injunction amounts to a
1 All] Ram Ishwar @ Rameshwar & others V. Laxmi Narain and another
211
case decided. Since this is not the
question involved, therefore, the said case
also does not have any application.

12. In Shiv Shakti Co-operative
Housing Society, Nagpur Vs. Swaraj
Developers and others the question before
Apex Court was as to whether a Revision
was maintainable against interlocutory
order. The Hon'ble Supreme Court
observed that in case the order attaches
finality then the Revision is maintainable
and if the answer is 'no' then the Revision
is not maintainable. In para 32 of the said
report, the Apex Court observed as
follows:

"32. A plain reading of Section 115,
as it stands makes it clear that the stress is
on the question whether the order in
favour of the party applying for revision
would have given finality to suit or other
proceeding. If the answer is 'yes' then the
revision is maintainable. But on the
contrary, if the answer is 'no', then the
revision is not maintainable Therefore, if
the impugned order is of interim nature or
does not finally decide the lis, the revision
will not be maintainable. The legislative
intent is crystal clear. Those orders, which
are interim in nature, cannot be the
subject-matter of revision under Section
115. There is marked distinction in
language of Section 97(3) of the Old
Amendment Act and Section 32 (2) (i) of
the Amendment Act. While in the former,
there was clear legislative intent to save
applications admitted or pending before
the amendment came into force. Such an
intent is significantly absent in Section 32
(2)(i).
The
amendment
relates
to
procedures. No person has a vested right
in a course of procedure. He has only the
right of proceeding in the manner
prescribed. If by a statutory change, the
mode of procedure is altered the parties
are to proceed according to the altered
mode, without exception unless there is a
different stipulation."

13. In view of the fact that the order
rejecting an application for issuance of a
Commission does not attach any finality
to the proceedings, therefore, no Revision
lies against the said order which is in the
shape of an interlocutory order. The said
case also does not have any application.

14. In Munshi Lal Agarwal and
others vs. IXth A.D.J. Lucknow and
others (supra) relaying upon various
decisions of this Court as well as by the
Apex Court, it was observed that order
rejecting an application for issuance of
Commission does not amount to a case
decided
and
the
same
being
an
interlocutory order no Revision lies. In
para 11 of the said report it was observed
as follows:

"11. An order rejecting earlier
application dated 15-9-1990 in this case is
nothing but order is interlocutory in its
nature. This order by itself does not pass
or determine any right of the parties. The
Court had only to observe that the report
of the Commissioner is nothing but a
piece of evidence and that a party cannot
be allowed to adduce fresh evidence
except in very exceptional circumstance.
In the order dated 15-9-1990 the Court
further observed that in the instant case,
from the perusal of the Lower Court
record it is clear that the appointment of
Vakil Commissioner was done on 6-11990 with the consent of the parties. The
learned Lower Court has given full
opportunity to the parties to file their
objection against the Commissioner report
and after hearing these objections the
212 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
learned Court had passed the order on 163-1990 that the Commissioner report
would be read in evidence subject to the
evidence adduced on behalf of the parties.
It further appears from the records that the
appellant has filed evidence in this case
after the submission of the report of the
Vakil Commissioner. In view of the
matter the prayer of appellant for Local
Inspection of the disputed property, I find,
is not liable to be allowed. The appellant's
application is rejected. Such orders are
and have been taken to be orders of interlocutory nature and not one deciding or
determining any of rights of the parties
and so do of the amount to be case
decided. This being the position that the
order does not amount to be an order
determining the right of the parties when
an application for issue of Commission is
rejected it does not amount to be a case
decided. It has been so held by a Division
Bench of this Court in the case of
Gambhir Mal Pandia v. George Anthony
John, reported in AIR 1934 Allahabad.
57."

15. In Hajara Lal Vs. Siya Saran and
others (supra) this Court held that an
order
holding
a
document
to
be
inadmissible in evidence is a interlocutory
order and also it does not amount to final
adjudication of dispute inter se within the
parties,
therefore,
Revision
is
not
maintainable. However, the Revision of
the said case was under Section 25 of the
Small Causes Court Act. In para 2 of the
said report it was observed as follows:

"2. Under Section 25 of the Act only
such decrees or orders are open to
challenge which are made in any case
decided. It cannot be gainsaid that any
order which does not adjudicate upon any
right or obligation of the parties in
controversy cannot amount to a case
decided, which is a condition precedent
for exercise of powers under section 25 of
the Act. In its decision, rendered in the
Central Bank of India Ltd. v. Gokal
Chand, reported in AIR 1967 SC 799, the
Hon'ble Supreme Court has held that
orders regarding of summoning witnesses,
discovery, production and inspection of
documents, issue of a commission for
examination of witness, inspection of
premises, fixing a date of hearing and
admissibility
of
a
document
or
a
relevancy of a question are interlocutory
orders. They are steps towards the final
adjudication and for assisting the parties
in the prosecution of their cases in the
pending proceedings, they regulate the
procedure only and do not affect any right
or liability of the parties."

16.

Thus
what
is
clearly
decipherable
from
the
aforesaid
discussion is that before a Revision can be
entertained in exercise of power under
Section 115 C.P.C., the order which is
said to be assailed under Revisional
jurisdiction has to be a case decided
within the meaning Section 115 of C.P.C.
In view of the fact, by rejection of the
application issuance of a Commission,
neither any issue is decided nor any of the
rights of the parties are adjudicated upon,
therefore, such an order does not amount
to a case decided and in the considered
opinion of this Court the Revision against
the same is not maintainable.

17. Thus, in the backdrop of the
discussions
made
hereinabove,
the
learned court below did not commit any
illegality in not interfering with the order
dated 1.7.2004 in exercise of its revisional
jurisdiction. The learned District Judge
was perfectly justified in holding that
1 All] Smt. Santoshi V. State of U.P. and others
213
since the order under challenge did not
amount to case decided and also the same
being an interlocutory order, therefore,
the revision was not maintainable.

18. I do not find any illegality or
infirmity in the orders passed by the
District Judge. The petition being devoid
of merit is hereby dismissed.

19. There will, however, be no order
as to costs.

20. Since the Suit is of 1986, it is
desirable that the trial court shall decide
the same expeditiously, say within a
period of six months. Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Habeas Corpus Petition No. 47785 of
2006

Smt. Santoshi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ram Chandra Srivastava

Counsel for the Respondents:
A.G.A.

Constitution of India, Art. 226-Habeas
Corpus
Petition-scope
under
writ
jurisdiction-considering the statement of
corpus as well as the welfare of two very
young infants the corpus being 19 years
of age-at the time of marriage-living
happily with her husband-her father
restrained to resort any illegal means for
their separation-pending criminal case
quashed-with consequential directions.
Held: Para 3

In view of the statement made by Smt.
Santoshi she is allowed to go with her
husband Manoj Verma as the interest of
justice demands that the mother of two
infants who has expressed her deep
desire to live a happy life with her
husband, must be allowed to go and live
with her husband and children. The
father Om Prakash is hereby restrained
not to interfere into the marital life of
Smt. Santoshi and Manaj Verma.

(Delivered by Hon'ble Vinod Prasad, J.)

1.

Corpus
Smt.
Santoshi
is
personally present today in court who has
been identified by his father Sri Om
Prakash Gupta who is also present in the
court. The statement of Smt. Santoshi was
recorded in open court today, which was
verified to be correct by her and after said
verification she has put her thumb
impression on it. She clearly stated that
she is aged about 24 years and she had
married with Manoj Verma on her own
accord. At the time of marriage she was
19 years of age. She also expressed the
desire that she would like to go with her
husband Manoj Verma. She further stated
that she has got two issues Jahanwi and
Dinkar aged about 2 years four months
and one year respectively. She also stated
that she is very happy in her family and
with her husband. (She has brought both
the infants in the court today. Her
husband Manoj Verma is also present in
court).

2. Father of Smt. Santoshi, namely,
Om Prakash Gupta, the petitioner who is
also present in court today raised serious
objection to the said request of Smt.
Santoshi and prayed that the couple be
sent to Jail.