JAYANTILAL JIVANLAL MISTRI Vs. RATILAL JIVANLAL MISTRI

JUDGEMENT

(1.) This revision application has been filed by the original plaintiff against the order of the trial Court dated 17th August 1966 by which the learned Judge has refused to admit in evidence the document dated 1 December 1963 on the ground that it was an unregistered document.

(2.) The short facts of the case in brief are as under :-

(3.) At the hearing Mr. Patel raised a preliminary objection that this revision was incompetent. Mr. B. R. Sompura the learned Government pleader however argued that there was clearly a jurisdictional error as the document which was disallowed was the basis and foundation of the plaintiffs suit. There was Only an agreement to divide the partnership assets and even if the partnership assets consisted of some immovable properties the document dividing partnership assets would not require any registration. In this connection he relied upon the decision of the Supreme Court in Narayanappa v. Bhaskar Krishnappa A.I.R. 1966 S C. 1300. It is not necessary for me at this stage to consider the effect of this decision in so far as the preliminary objection is concerned. Mr. Sompura has also relied upon the decision of my learned brother Raju J. in Savitaben v. Dalal Ramanlal A.I.R. 1963 Guj. 147 where my learned brother has held that errors in regard to the admission in evidence of relevant facts and these in regard to a document which affect a fact in issue directly must be distinguished. If the errors relate to the latter type then the High Court will interfere in revision on the ground that they constitute a material irregularity in the exercise of jurisdiction. Thus any error regarding the admissibility in evidence of a document which tends to prove a fact in issue directly and upon which the claimant bases his claim would be a material irregularity in the exercise of jurisdiction. It is not necessary for me to go into this question as to whether as per the settled law on this question after the various decisions of the Supreme Court such an error can be said to be one involving the question of jurisdiction. The preliminary objection can be disposed of on another short ground. In order that a decision can be brought within the scope of sec. 115 the first condition contemplated by the section is that it must be a case decided. The decision of the case need not be of the entire case in the sense that a final decree must be passed determining the whole controversy but the decision must at least terminate the part of the controversy by deciding the rights and liabilities of the parties. The power to interfere under sec. 115 should be exercised only if there was a case decided in this narrow sense and this power would not be available for interfering with mere interlocutory orders which did not in that sense terminate even a part of the controversy. Mr. Patel rightly relied upon the decision of my learned brother Raju J. in the same volume in Bachibai v. Virji Devji A.I.R. 1963 Guj. 241 (IV G.L.R. 1032) where the learned judge has in terms held that where the Court admitted a document or refused to admit it in evidence that matter could not be the subject-matter of revision under sec. 115. During the course of examination of witnesses a Court had to give various rulings on the admissibility in evidence of the questions put and answers given. There could not be a revision against every decision of the judge allowing the question to be put or not allowing certain question to be put. When the Court allowed question to be put or refused the question to be put that would not amount to deciding a case. Similarly when the Court allowed a document to be admitted in evidence or the Court refused to allow it that did not amount to deciding a case but it amounted to deciding a question regarding the admissibility of certain evidence. Therefore when the Court decided questions under the Evidence Act it was not deciding a case and therefore its decision could not be the subject matter of revision under sec. 115. My learned brother had adopted the view of His Lordship Mudholkar J. (as he then was) in Babulal v. Jugalkishore A.I.R. 1954 Nag. 254. In fact the expression case decided is now authoritatively interpreted by the Supreme Court in S. S. Khanna v. F. J. Dillon A.I.R. 1964 S.C. 497. In that case the lower Court had decided the mixed issue of law and fact as a preliminary issue in flagrant violation of O. 14. R. 2. Their Lordships held at page 503 that the Code conferred no jurisdiction on the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court. Not to do so especially when the decision on issues even of law depended upon the decision of issues of fact would result in a op-sided trial of the suit. Such an error was held to be a jurisdictional error which was covered under the scope of sec. 115(c). As far as the interpretation of the expression case decided is concerned His Lordship Shah J. speaking for himself and Sarkar J. held at page 501 that the expression case was a word of comprehensive import. It included civil proceedings other than suits and was not restricted by anything contained in the section to the entirety of the proceeding in a civil Court. Further proceeding their Lordships observed that in that case the Subordinate Judge held by an interlocutory order that the suit filed by Dillon for recovery of the amount advanced to Khanna was not maintainable. That was manifestly a decision having direct bearing on the right of Dillon to a decree for recovery of the loan alleged to have been advanced by him which he said Khanna agreed to repay and if the expression case included a part of the case the order of the Subordinate Judge must be regarded as a case which has been decided. His Lordship Hidayatullah J. also held at page 5G5 that the general power as shown above was intended to be used otherwise and the word case did not mean a concluded suit or proceeding but each decision which terminated a part of the controversy involving a matter of jurisdiction. Where no question of jurisdiction was involved the Courts decision could not be impugned under sec. 115 for it has been said repeatedly that a Court had jurisdiction to decide wrongly as well as rightly. Thus their Lordships have in terms held that the expression case decided need not be a termination of the entire case but at least the decision must terminate a part of the controversy in the sense that it must decide the rights and liabilities of the parties. It is only such interlocutory orders which terminated a part of the controversy which could be revised under sec. 115. The other interlocutory orders by which expeditious disposal of the suit is secured and which are merely steps for arriving at the decision on the rights and liabilities of the parties would not fall within the scope of sec. 115. The writing in the present case was only a piece of evidence by which the terms of dissolution which were orally agreed upon were sought to be proved. It was not in any sense the basis and foundation of the suit as contended by Mr. Sompura. The effect of its inadmissibility was not such as to non-suit the plaintiff. The impugned order was therefore not one which had any direct bearing on the plaintiffs right and the said decision never terminated any part of the controversy but kept it as alive as it was before. It was not in any sense a case decided. In that view of the matter I must uphold the preliminary contention of Mr. Patel and hold that this revision is not competent. I however make it clear that I express no opinion on the merits of the rival contentions.