Not every order in a suit can be regarded as a case decided within the meaning of Sec.115 of the Civil Procedure Code.

S.J.Hyder, J.

1. The defendant before the court below has filed this revision application against an order dated December 2, 1980 passed by the Munsif Baghmua at Dhanbad. By means of that order an application moved by the defendant petitioner for appointment of a survey knowing commissioner has been rejected by the Munsif.

2. The plaintiff opposite party No. 1 filed the suit giving rise to this revision application for consideration of possession, for declaration that the plaintiff by means of a Kebala has purchased the hands described in the Schedule to the plaint and that he was in possession of the same. The defendant petitioner appeared before the Munsif and filed a written statement on May 25, 1979. In the said written statement it was alleged inter alia that the defendant petitioner was the owner of the land in dispute and that his construction stood on the said land. It may be stated that the parties appeared before the trail Court and produced their evidence. It was at this stage that the application for appointment of Survey-knowing Commissioner moved by the defendant petitioner and rejected by the Court below. In my opinion this revision application can be dispose of on a short ground. The order rejecting the application for appointment of a Survey-knowing Commissioner cannot be said to be a case decided within the meaning of expression as used in Sec.115 of the Civil Procedure Code (hereinafter referred to as the Code). It was however contended on behalf of the defendant petitioner that by the Amendment Act of 1976, an explanation has been added to Sec.115 of the Code. The said explanation defines expression "the case decided" so as to include an order made or an order deciding any issue in course of a suit or the other proceeding. Learned Counsel has urged that according to the Amending Sec.115 of the Code every order passed by a Civil Court is now revisable under Sec.115 of the Code. I am not inclined to agree with this.

3. Before the Amendment introduced in the Civil Procedure Code by the Act of 1976 there was some controversy between the Courts with regard to the meaning which may be given to the expression "Case decided". The amendment has been introduced in the Act to give effect to the decision of the Supreme Court in the case of AIR 164 SC 497 Major S.S. Khanna V/s. Brig. F.J. Dhillon. The matter came up again for consideration before the Supreme Court in the case of AIR 1970 SC 406 Baldeo Das Sheolal V/s. Filmistan Distributor (India) Ltd. Their Lordships observed as follows:

But it was not decided in S.S. Khannas case (supra) that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided if the Court adjudicates for the purpose of the suit some right of obligation of the parties in controversy every order in the suit cannot be regarded as a case decided within the meaning of Sec.115 of the Civil Procedure Code.

The above dictum of the Supreme Court was followed by a Division Bench of the and Punjab Haryana High Court in the case of -- Smt. Hammer Kaur and Anr. V/s. Jodha Ram and Anr. wherein their Lordships held that a case decided must necessarily have reference to some right or obligations of a party with reference to a proceeding. It was further observed that copy interlocutory order does not necessarily adjudicate upon the rights of the parties. In Smt. Harvinder Kaurs case (supra) it was specifically held that an order refusing to appoint a Commissioner was not an amenable to the remedy provided under Section 115 of the Code.

4. Learned Counsel appearing on behalf of the defendant-petitioner pointed out that a Survey-knowing Commissioner may be appointed at any stage of the suit. He further submitted that the question as to whether the construction stood on the land in dispute had been raised by him even at the written statement. It was pressed upon me that in the circumstances the trial Court should necessarily have issued a commission in the