BASHESHAR PICTURES Vs. PREM PARIKASH

JUDGEMENT

(1.) In asuit for recovery of a sum of Rs.92,000.00 due to the plaintiff-respondent, before the trial Court, an application under Order II Rule I of the Code of Civil Procedure, 1908 has been moved by the defendant' petitioner for answering certain interrogatories by the plaintiff respondent which are relevant, according to him, for determining "the point in controversy and relates to the issues framed by the Court. The Court has dismissed that application on 30.11.1990 by holding that the interrogatories sought for by the defendant-petitioner do not relate to the evidence of the plaintiff and in fact these interrogatories are in the nature of cross-examination. Against this order, the present petition under Article 227 of the Constitution of India has been filed by the petitioner respondent, 'which was later converted as civil revision under Section 115 of the Code of Civil Procedure 1918.

(2.) During the course of hearing a preliminary objection was raised by the learned counsel for the respondent that the rejection of the application filed by the defendant-petitioner for interrogatories under Order 11 Role 1 of the Code of Civil Procedure, 1908 is not a case decided and, therefore, civil revision is not maintainable under Section 115 of the Code of Civil Procedure, 1908, as according to him, under Section 115 Code of Civil Procedure, 1908 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 (e) to have acted in the exercise of its jurisdiction illegally or with material irregularity. In fact, in the present case, no case stands decided by rejection of that application and, therefore, the revision is not maintainable.

(3.) There seems to be a good deal of force in the submission of the learned counsel for the respondent. Similar question in Maheshwari Oil Mill v. M/s Girjanath Durga Swan (AIR 1980 All. 265) was considered wherein it was held that an order refusing to grant leave to a party to deliver interrogatories is not a case decided within the meaning of Section 115 of the Code of Civil Procedure, 1908 and accordingly the revision petition was dismissed. In Y. Venkateswara Rao v. K. Nagamma and another (AIR 1972 Mys. 254) this question was also considered and similar view as in Maheshwari Oil Mills (supra) has been expressed. It has been held that where the Court refuses to grant leave to the defendant to serve interrogatories it cannot be said that the Court had adjudicated some right or obligation of the parties in controversy. What is being sought under Order 11, Rule, 11, Civil Procedure Code is the leave to deliver interrogatories. When the Court exercises it judicial discretion in granting or refusing the leave, it cannot be stated to be an adjudication of some right or obligation of the parties in controversy. In fact that Court came to that conclusion by referring and following the observations of the Supreme Court as to what amounts to case decided in S.S. Khanna v. F.f. Dhillon ( AIR 1964 SC 497) and Baldevdas v. Fiemistan Distributors ( AIR 1970 SC 406).