GHURHU Vs. XTH ADDITIONAL DISTRICT JUDGE VARANASI

JUDGEMENT

(1.) HEARD Sri S. N. Singh, learned counsel for the petitioner as well as Shri Sankatha Rai, learned counsel appearing for the contesting respondent and perused the record.

(2.) AN Original Suit No. 122 of 1988 was filed by plaintiff -respondent No. 3 Bechai for injunction against the respondent No. 4 Bechan, who was initially arrayed as the sole defendant. The petitioner Ghurhu was subsequently impleaded and arrayed as defendant No. 2. It is not disputed that Bechan, defendant No. 1 was owner of half of the portion of the land on the basis of the sale deed executed by one Hukku, who was the brother of the father of defendant No. 2 -petitioner. The petitioner -defendant No. 2 claims to be the owner of the other half portion of the property. Allegedly the plaintiff claimed possession on the basis of oral permission having been granted to him by the father of the petitioner. During the pendency of the suit, an Amin -commissioner was appointed for on the spot inspection of the property in dispute, who submitted his report. The petitioner -defendant No. 2 filed an application for appointment of a fresh commission on the ground that neither he nor his counsel were ever informed of the visit of the Amin -commissioner on the spot and as such his report was prepared behind the back of the petitioner. It was also stated in the application, which was supported by an affidavit, that the plaintiff had filed the suit in collusion with defendant No. 1 and it has been submitted that the same would be clear from the fact that although the plaintiff was claiming possession over the property on the basis of oral permission granted by the father of the petitioner, the petitioner was not initially even impleaded as a defendant. The said application of the petitioner was rejected by the trial court vide its order dated 31.10.1991, primarily on the ground that as the earlier report of the Amin -commissioner had already been accepted, hence there was no justification for issuing a fresh commission. A revision was filed challenging the aforesaid order of the trial court which was dismissed by the Xth Additional District Judge, Varanasi vide order dated 6.1.1993, on the ground that the order impugned was an interlocutory order against which revision was not maintainable. Aggrieved by the said orders, this writ petition has been filed.

(3.) HOWEVER , in the case of Rama Shanker Tiwari v. Mahadeo and Ors., 1968 AWR 103, a Full Bench of this Court has held that the jurisdiction of the High Court under Section 115, C.P.C., is analogous to its jurisdiction of issuing writs. 'Case' is a word of comprehensive import. It cannot be equated with a suit alone but includes part of a suit also. An interlocutory order, which has a direct bearing on the rights of the parties, is a 'case decided' within the meaning of Section 115, C.P.C., even though it does not finally dispose of the suit.