MATHEW Vs. SARAMMA

JUDGEMENT

(1.) The petitioner is the 7th defendant in O.S.No.2/1992 on the file of District Court, Ernakulam. The suit was originally filed as O.P.(LA) No. 159/1988 for obtaining Letters of Administration in respect of a Will dated 15-9-1976 allegedly executed by V.S. Annamma. Petitioner and other defendants in the suit are contesting the proceedings. There was an earlier proceeding for letters of administration in respect of the same will but those proceedings were disposed of by holding that the petitioner therein did not comply with S.278 of the Indian Succession Act, and R.8 and 9 framed thereunder. In that proceedings one witness by name Kurian was examined on the plaintiff's side. In the present proceedings, the 7th defendant - the petitioner herein wanted to use the deposition of the said witness Kurian who had been examined as witness in O.P.(L. A.) No. 159/88. The plaintiff objected the production of deposition as an item of evidence. The objection was raised on the basis of S.33 of the Indian Evidence Act. The plaintiff contended that witness Kurian was examined as his witness in the earlier proceedings and therefore he had no right or opportunity to cross examine that witness and hence, his evidence cannot be used in subsequent proceedings. The objection raised by the plaintiff sustained and the revision petition is directed against the order passed by the District Judge.

(2.) We heard the petitioner's counsel and the counsel for the respondents. The counsel for the respondents contended that this C.R.P. is not maintainable under S.115 of the C.P.C. At first we shall consider the maintainability of this revision. The objection is raised on the ground that by the impugned order the rights of the parties are not adjudicated upon and that if this order is allowed to stand it would occasion failure of justice or irreparable injury to the petitioner herein. The respondents' counsel made reference to two decisions of this Court reported in Erinhikkal Parammal Ravindran v. K. Roja ( AIR 1994 Ker. 67 ) and Mytheen Kunju v. Azeez Kunju ( 1992 (1) KLT 713 ). In these two decisions the view taken is that the powers of High Court under S.115 of the Code could be used only if the order of the Subordinate Court constitutes 'any question which has been decided', and the proviso to S.115(1) of the Code introduced by the 1976 Amendment Act restricts the High Court's power of revision created by S.115( 1) of the Code to those cases which fall within clause (a) and (b) of the proviso. As regards the explanation added it was held that explanation explains the meaning of 'any case which has been decided' and it was introduced for the purpose of clearing the doubts as to whether interlocutory orders fall within the expression 'any case which has been decided'.

(3.) Two decisions of the Supreme Court are of some relevance on this aspect. One is reported in S.S. Khanna v. F.J. Dhillon ( AIR 1964 SC 497 ). In this case the Supreme Court held that,