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1993 Supreme(Pat) 110

B.N.AGRAWAL, GURUSHARAN SHARMA
Awadh Kishore Singh – Appellant
Versus
Brij Bihari Singh – Respondent


Judgement Key Points
  • Revision application directed against trial court's order debaring plaintiffs from examining defendant No. 2 as their witness due to no order accepting his written statement. [8000086360001] (!)
  • Plaintiffs filed partition suit; defendants 1-5 contested; defendant No. 2 filed written statement but no acceptance order; plaintiffs sought to examine him as PW 18, objection upheld by trial court. [8000086360001]
  • Case referred to Division Bench by Single Judge order dated 24-6-1991. [8000086360002]
  • Preliminary objection on maintainability: impugned order not a "case decided" under S.115 CPC; countered by amendment effect via 1976 Act expanding scope via explanation to S.115(2). [8000086360003]
  • Post-amendment S.115(1) allows High Court revision if jurisdiction error, no appeal lies, and order meets proviso conditions: final disposal if reversed or causes failure of justice/irreparable injury if stands. (!) (!) (!)
  • Explanation to S.115(2) inclusively defines "case decided" to cover any order or order deciding issue in suit/proceeding; legislature avoids redundant words, so all orders qualify post-amendment. (!)
  • Pre-amendment "case decided" theory (final determination) no longer applies; every order in suit now revisable subject to conditions. (!)
  • Three conditions for revision interference: falls under S.115(1)(a)-(c), no appeal provided, and proviso (a) or (b) satisfied. (!)
  • Trial court materially irregular in debarring plaintiffs from examining defendant as witness; no provision bars examining adversary regardless of their written statement status. (!)
  • Plaintiff may examine any witness, including defendant, irrespective of defendant's participation or written statement acceptance. (!) (!)
  • Impugned order causes jurisdictional error, failure of justice, irreparable injury; revision allowed, order set aside, trial court to permit examination. (!) (!)
  • Costs: parties bear own. (!)
  • Concurring opinion. (!) (!)

Judgment

B.N.AGRAWAL, J.

1. This revision application is directed against the impugned order by which the plaintiffs have been debarred from examining defendant No. 2 Brijbihari Prasad Singh as a witness on their behalf on the sole ground that no order was passed for acceptance of the written statement filed by defendant No. 2.

2. The short facts for disposal of this civil revision application are that the plaintiffs filed a suit for partition against the defendants in which defendants 1 to 5 filed written statement contesting the claim for partition. Defendant No. 2 entered appearance in the suit on 14-8-1984 and filed written statement but the petition for acceptance of his written statement was not moved at any point of time and, consequently, no order could be passed thereupon. In the suit, pursuant to the direction of this Court, the contesting defendants led evidence first. Thereafter, the plaintiffs started examining their witnesses and on 13-12-1989 they wanted to examine defendant No. 2 as P.W. 18 on their behalf and when his examination-in-chief was going on, at objection was raised on behalf of the contesting defendants that this witness cannot be allowed to be examined o























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