BUDH SAGAR Vs. RAJESHWAR

JUDGEMENT

(1.) This revision is directed against an order of the lower appellate court dated 26 -8 -1972 admitting additional evidence in the appeal. Sri S.D. Pathak, counsel appearing for the opposite parties, raised a preliminary objection to the maintainability of the revision, and urged that as the impugned order passed by the court below does not amount to a case decided, therefore, the relation is not maintainable. The preliminary abjection, is well founded. By the impugned order, the lower appellate court has only admitted additional evidence.' This order has been passed on an interlocutory application and does not decide the rights of the parties finally. As it will be open to the Applicant to challenge the correctness of this order if the appeal is decided against him, therefore the order passed by the court below is not liable to be interfered with at this stage of the case under Sec. 115 Code of Civil Procedure. In Devi Singh v/s. Brijbasi : 1975 AWC 231 a learned Single Judge of this Court also took the same view when he held that an order admitting additional evidence does not amount to a 'case decided'. I am in respectful agreement with the view taken in that case. Counsel for the Applicant relied on a case reported in, 1956 AWR 741 Jitan Singh v/s. Smt. Rajai in support of his submission that an order passed on an, application under Order XLI Rule 27 CPC has been held to be revisable under Sec. 115 CPC. The facts of this case would show that the lower appellate court, which admitted the additional evidence in appeal did not only allow the application made under Order XLI Rule 27 CPC but also allowed the appeal and sent back the case to the first court for deciding the suit afresh on merits. It was against this order that revision had been preferred in this Court. A case deciding an appeal finally after taking additional evidence under Order XLI Rule 27 Code of Civil Procedure stands on a footing different than one where an application atone has been allowed and the additional evidence has been permitted to be brought on record for the purposes of deciding the appeal. The appeal in this case is still pending before the lower appellate court. Therefore, the case relied upon by the learned Counsel for the Applicant is clearly distinguishable and does not assist him. The revision is liable to be dismissed on the preliminary objection raised by the learned Counsel for the opposite parties.