SURATH DAS Vs. AMBAR NASKAR

JUDGEMENT

(1.) THE short question that arises in this revisional application under Section 115 of the 'civil Procedure Code for determination is whether an order refusing to put some question to a witness after recall in re-examination is revisable. The opposite party instituted T. S. No. 22 of 1987 in the 3rd Court of Munsif at Baruipur against the petitinoners for ejectment from the disputed shop-room on dhe grounds of default in payment of rent and reasonable requirement for personal use and occupation. The petitioners filed an application under Section (2) of the West Bengal premises Tenancy Act in which not only the relationship of landlord and tenant was denied but also the petitioners claimed title to the shop-room by virtue of purchase of the shop-room by their father Netaichand from the owner and landlord Gazi Golam Mustafa by a Kobala dated 18-6-73. The opposite party also claimed title to the disputed shop-room on the strength of a Kobala executed on8. 6. 73 Gazi Golam Mustafa. During the hearing of the proceeding under Section 17 (2) of the West Bengal Premises Tenancy Act, petitioner no. 2 Sudhin Kumar Das was examined as PW 2 who stated in the examination in chief that he and his brother helped their father in carrying on negotiations for the purchase and that they looked after the shop-room. During cross examination a question was put to PW 2 as to whether he lives in a different house at present which the witness answered in the affirmative. The petitioners filed a petition to put a question to him as to the date since when he has been living away from his ancesytnal house, after re-calling the witness for re-examination. By Order No. 32 dated 21. 2. 89, the learned Munsif rejected the prayer on the ground that the purported question aimed at frustrating the effect of cross-examination on the point. This order is under challenge in this revision.

(2.) MR. Maitra, learned Advocate for the appellant as contended that the scope of Section 115 of the Code of Civil Procedure has been enlarged by the amending Act of 1976. Section 115 (1) says that the High Court can exercise its powers of revision regarding 'any case which has been decided' and the explanation added by the amendment made in 1976 has defined the expression 'any case which has been decided'. That Explanation expressly says that it 'includes any order made, or any order deciding an issue, in the course of a suit or other proceeding'. Any order affecting the right of a party is revisable in view of the enlarged meaning of the expression 'any case which has been decided'. It has been further contended that re-examination of a witness under Section 138 of the Evidence Act in order to remove ambiguity and explain a statement of the witness is a matter of right and once the impugned order has affected the right of the petitioners it is revisiable. In supported of his contention he has referred to a number of decisions Major S. S. Khanna vs. Brig. F. J. Dillon, AIR 1964 SC 497; Baldevdas Shivlal vs. Fandmstan Distributors, AIR 1970 SC 406; Ramgulam Choudhary and Ors, vs. nawin Choudhun A. Ors. , AIR 1972 Patna 499; Badrinath Gupta vs. Estates officer, AIR 1977 Jammu and Kashmir 38; Manindra Kumar Rai vs. Paresh chandra Dey, AIR 1971 Assam and Nagaland 127.

(3.) MR. Bhattacharjee, learned Advocate for the opposite party has, on the other hand, contended that the scope of the revisional jurisdiction has not been widend by amendment of Section 115 in 1976. It has been rather restricted by virtue of Clauses (a) and (b) of the proviso and that interlocutory order like the present one which does not determine any right of the parties in any matter in controversy is not revisable. In support of his contention he has referred to the decision of this court in Smt. Kalibala Akbuli and Others vs. Sambhu Akhuliand Ors. , 1981 (1) CLJ 290.