An order refusing to appoint a pleader Commissioner is not a case decided and thus no revision lies before this Court under Sec.115 of the Code of Civil Procedure.

Binod Kr.Roy, J.

1. Through this civil revision application the plaintiffs pray to set aside an order rejecting their petition dated 10 9-1986, through which they had prayed for appointment of a survey knowing Advocate Commissioner, on the grounds inter alia that the proposed appointment will not be of any use to either side or in deciding the suit and that the points raised therein can be decided on the basis of the evidence adduced by the parties.

2. Mr. Umashankar Singh No. 2, learned Counsel for the petitioners contends that even though the impugned order is interlocutory in nature it has been passed by completely misconceiving the provisions of Order XXVI Rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code) and as it amounts to case decided within the meaning of Sub-section (1) of Sec.115 of the Code and covered by the explanation attached under Sub-section (2) of the aforementioned section is liable to be set aside in civil revision. Mr. Singh in support of his propositions relied on Ramji Ram V/s. Ramashre Raut AIR 1994 Pat 761; Ram Kirpal Missir V/s. Mahesh Pandey -- .

3. In -- , after relying upon certain observations in AIR 1924 Pat 761 (supra) an order appointing pleader Commissioner was set aside in revision under Sec.115 of the Code on the ground that there would be calamitious waste of time and money if a roving enquiry, as ordered by the Munsif, is made but still the Munsif was left with a discretion to issue a fresh commission after strictly following the provisions under Order XXVI, Rule 9 of the Code.

4. The sole question in this case is as to whether an order refusing to appoint a pleader Commissioner is a case decided or not.

5. Relevant part of Sec.115 of the Code as amended by the Code of Civil Procedure (Amendment) Act (104 of 1976) runs as follows:

(i) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto

* * * * *

Explanation.--In this Section, the expression any case which has been decided includes any order made, or any order deciding an issue in the course of suit or of the proceeding.

(Emphasis added).

6 In the case of Central Bank of India Ltd, V/s. Gokul chand AIR 1967 SC 799 (Paragraph-3) the Supreme Court held to the effect that the orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises fixing a date of hearing and the admissibility of a document or the relevancy of a question all these are interlocutory orders, which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding and they regulate the procedure only, and do not affect any right or liability of the parties (emphasis added). After review of several decisions of the Supreme Court in the case of Ramgulam Choudhary and Ors. V/s. Nawin Choudhary and Ors. -- , it was held by Untwalia, J. (as he then was) to the effect that the orders allowing or disallowing some questions in examination-in-chief or cross-examination, wrong admission of documents in evidence, confirming or setting aside a pleader Commissioners report and ordering further investigation are such interlocutory orders, which do not decide right or obligation of parties and thus can not be interfered with under Sec.115 of the Code as they do not come within the expression case decided (Emphasis added). In ILR LXIII Pat 595, a division bench of this Court again held that a case may be decided if the Court adjudicates some rights or obligation of the parties in controversy for the purposes of suit or the proceeding.

7. After the amendments in the Code introduced by Act 104 of 1976,in Madhu Limaye V/s. State of Maharashtra -- a three Judges Division Bench of the Supreme Court reiterated the opinion expressed in Baldevdas V/s. Filmistan Distributors (India) Pvt. Ltd.