JAGDEV SINGH Vs. DARSHAN SINGH

JUDGEMENT

(1.) This revision petition has been filed by the defendants-petitioners against the order dated 16-11-1998 passed by the learned Civil Judge (Jr. Divn.), Malerkotla whereby the plaintiffs-respondents have been allowed to examine a handwriting expert in their rebuttal evidence to prove documents, the onus of proof of which was on them.

(2.) The plaintiffs-respondents filed a suit for permanent and prohibitory injunction restraining the defendants-petitioners from dispossessing them from the land measuring 142 Bighas 10 Biswas, as detailed in the head note of the plaint situated in village Bhoodan, Tehsil Malerkotla, forcibly, illegally and without due process of law; besides for restraining the defendants-petitioners from alienating by way of sale, mortgage, exchange, gift or in any other manner the suit land. During the pendency of the suit, the plaintiffs-respondents, in their rebuttal evidence, prayed for examination of a handwriting expert. It was submitted by the plaintiffs-respondents that their evidence in the affirmative was concluded on 11 -3-1998 and they had reserved their right to produce evidence in rebuttal. Jagdev Singh (defendant-1) in his evidence, it is stated, did not clear the position as to whether the memo of partition dated 12-5-1989 and rapat roznamcha which was got entered with the Halqa Patwari on 29-7-1994 bears his signatures. The case set up by the plaintiffs-respondents is that the suit property was partitioned between the parties by way of a memo of partition dated 12-5-1989. Rapat roznamcha in this regard was got entered with the Halqa Patwari. The defendant-1 in his written statement did not deny his signatures on the memo of partition dated 12-5-1989 and rapat roznamcha that was entered with the Halqa Patwari. He simply stated that the documents were void and a result of fraud. However, when the said Rapat roznamcha was put to defendant-1 during his cross examination, he did not specifically state whether the said documents bear his signatures. For this purpose, the plaintiffs-respondents submitted an application for examination of a handwriting expert to compare the signatures of Jagdev Singh (defendant-1) on the memo of partition and the rapat roznamcha (Ex. P1) with his other standard signatures. The defendants-petitioners opposed the said prayer and stated that the plaintiffs should have examined the hand writing expert while leading their evidence in the affirmative. The learned Civil Judge (Jr. Divn.), as already noticed, allowed the application of the plaintiffs-respondents and permitted them to examine a hand writing expert in their rebuttal evidence, which order, as already noticed, is assailed by way of the present petition.

(3.) At the motion stage, the learned Single Judge vide order dated 16-11 -1999, in view of the judgment passed by this Court in Bhika Ram v. Ram Niwas and others (1998-2) PLR 484 admitted the case to DB. In Bhika Ram's case (supra), a learned Single Judge of this Court, in view of the embargo contained in sub-clause (b) of proviso to Section 115(1) of the Code of Civil Procedure (CPC - for short) had held that if the petitioner fails in the suit and ultimately a judgment and decree is passed against him on the basis of the impugned order, he would be entitled to challenge the impugned order in appeal against the final decree under Rule 1 (a) of Order 43 read with Section 105, C. P. C. Therefore, it could not be said that the impugned order, if allowed to stand, would occasion a failure of justice so as to justify interference under Section 115, C. P. C. In substance, by virtue of clause (b) aforesaid, the High Court would not interfere with an order unless the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. It was observed by the learned Single Judge while referring the present case to DB that if such a view is accepted to be correct, a revision in no case would at all be maintainable as it is too well settled and conceded that there is no such interlocutory order, veracity or legality whereof cannot be ultimately challenged in appeal and if that be so. the provision of revision contained in Section 115 of the C. P. C. would become obsolete. It is. therefore, evident that the reference to DB has been made in view of the embargo contained in sub-clause (b) of the proviso to Section 115(1), C. P. C. which was to the effect that the High Court shall not under Section 115(1), vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made so as to entitle a party to invoke the revisional jurisdiction of the High Court. However, this aspect is now not of much significance as the provisions of the proviso to Section 115(1) including sub-clause (b) has been substituted by Section 12(i) of the C. P. C. (Amendment) Act, 1999 (Act 1946 of 1999) w.e.f. 1-7-2002. The said sub-clause (b) of the proviso to Section 115(1). C. P. C. has been deleted and is no longer in the statute. The validity of the amended provisions of the C. P. C. as brought into force by the C. P. C. (Amendment) Act, 1999 w.e.f. 1-7-2002 including that of Section 12(i) were considered by the Supreme Court in Salem Advocate Bar Association T. N. v. Union of India, AIR 2005 SC 3353 wherein it was observed as follows :-