A High Court should not interfere with an order refusing to examine a witness under Section 115 C.P.C. unless the order by itself disposes of the suit or unless the order, if allowed to stand, would occasion failure of justice or cause irreparable injury to the party against whom it was made.

G. M. LODHA, J.

( 1 ) HEARD learned counsel for the parties. In this case the defendant-petitioner has filed this revision application under Section 115 C. P. C. against the order dated 27-4-1979. On this date the defendant wanted to examine one more witness Shiv Kumar in spite of the fact that on an earlier date of hearing, he had mentioned before the court that he wants to examine now Kajod only. An oral prayer was made for examining Shiv Kumar on 4-4-79 but the same was rejected.

( 2 ) THE order-sheet dated 4-4-79 is as under. . (Text in Hindi not Printed ). .

( 3 ) ON 4-4-79 the evidence of the defendant was also closed after Kajod was examined, then the prayer to examine Shiv Kumar was rejected.

( 4 ) THE order-sheet of 4-4-79 shows that the defendant moved an application for examination of Shiv Kumar even after his evidence was closed and oral request was rejected. The court fixed this application for arguments on 27-4 79.

( 5 ) NO revision has been filed against the order dated 4-4-79 by which the evidence of defendant has been closed and the oral request of defendant to examine Shiv Kumar was rejected. That order has become final so far as the present revision petition is concerned. In this revision application Mr. Khan appearing for the petitioner has submitted that the witness is very material and under Order 16 Rule l-A, C. P. C. since he was present, it was the duty of the lower court to examine him even though earlier, the defendant has mentioned that he would like to examine Kajod only,

( 6 ) MR. Jain, appearing for the respondent-plaintiff has drawn my attention to the judgment of Hon. Justice Joshi dated February 6, 1979 in Narain Lal T someshwar Dayal (C. R. No, 62 of 1977 decided on 6-2-1979) (Raj), in the matter of revision application against refusal of the trial court to examine witnesses who were present in the court. In that case, this Court observed as under;

"the question therefore calls for consideration is whether in the facts and circumstances of this case the Court should invoke its revisional jurisdiction. Under Section 115, C. P. C. the High Court shall not invoke the revisional jurisdiction under Section 115 for varying or reversing any order made unless the order by itself disposes of the suit or unless the order if allowed to stand would occasion failure of justice or cause irreparable injury to the party against whom it was made. Neither of these conditions mentioned in the proviso to Section 115, c. P. C. is satisfied in the present case. Neither the interference with the impugned order would dispose of the suit nor it can be said that the non-interference with it would occasion failure of justice within the meaning of Section 115 of the Code of Civil Procedure inasmuch as the defendant has remedy under Section 105 of the Code where under he can challenge the impugned order in tha memorandum of appeal. Whatever sympathies may be for the defendant, looking to the legislative intent contained in Section 115 it is difficult for me to interfere with the impugned order in the re-visional side. The learned counsel for the petitioner submits that his one more application dated 15-1-1977 is still pending. The court has to decide that application according to law and whatever arguments are legally permissible, the defendant can raise those arguments before the trial court. With these observations the revision application is dismissed. There shall be no order as to costs. "

( 7 ) MR. Khan submitted that this judgment is distinguishable as in this casa the party had an opportunity to examina those witnesses in rebuttal and further because the court was of the opinion that earlier the party concerned was very lethargic, indifferent and negligent in the conduct of the case. He further submitted that this Court has interfered in many cases where the evidence was refused to be recorded by the lower court and he referred to the judgments of this Court in 1977 Raj LW 476, 1971 Raj LW 416, 1965 Ra