An order refusing to appoint a Commissioner under Order XXVI Rule 9 of the CPC is a 'case decided' within the meaning of Section 115 of the CPC and is revisable if it effectively denies a party the right to adduce evidence in substantiation of their case.

The third defendant in O.S. 474 of 1983 on the file of the District Munsif of Tiruchengode, is the petitioner in this revision. The respondent is the plaintiff. The plaintiff has filed the suit for a permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit properties by way of digging foundations, etc. The suit properties are in particular survey numbers, viz., S.Nos.289/2 to 289/19 in the concerned village. According to the plaintiff, the defendants are trying to put up foundations in the western portion of S.Nos.289/2 and 289/11. The third defendant had filed a written statement and, according to him, S.No.289/1 belongs to him and the foundations put up by him are only within the portion of S. No.289/1.

2. Hence, the moot question that apparently comes up for adjudication on the pleadings is as to whether the foundations put up by the 3rd defendant are within S.No. 289/1 or whether they have encroached upon the lands of the plaintiff. The 3rd defendant took out I. A.571 of 1984 under O.XXVI R.9 read with S.151 of the Civil P.C. hereinafter referred to as the Code, to appoint a Commissioner to inspect the suit properties and S. No. 289/1, to note down as to whether the third defendant's constructions are well within S.No.289/1 and other physical features that may be pointed out at the time of inspection and to submit a report with a plan drawn to scale. The court below has dismissed this application, stating that there is no dispute with reference to the ownership of S. No. 289/1 and hence, there is no need for appointment of a Commissioner and the parties can prove their case by evidence and documents. This order of the Court below is the subject matter of challenge in this revision.

3. Mr. K. Sarvabhauman, learned counsel for the respondent, took a preliminary objection that the order of the Court below will not fall within the category of 'a case decided' as per S.115 of the Code, and hence, it is not permissible for this court to exercise revisional powers. This preliminary objection has got to be adverted to and decided before this court would proceed to adjudicate the other aspects involved in the revision. It is no longer possible to claim that 'a case decided' could relate only to the main suit and not any other proceedings between the initiation of the suit and its final adjudication. In S. S. Khanna v. F. J. Dillon. three learned Judges of the Supreme Court countenanced as follows, while dealing with an interlocutory order by which the suit was held to be not maintainable (at p. 501) :-

"The expression 'case' is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression 'case' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant of equating it with a suit alone." *

From the inception of the suit until it is disposed of one way or the other, innumerable proceedings crop up and innumerable rights and obligations are claimed by and cast upon the parties and they have to be decided in such proceedings and if, in fact, some right or obligation of the parties in controversy gets decided in the course or such proceedings, that would amount to 'a case decided'.

4. In Baldevdas v. Filmistan Distributors, the learned Judges of the Supreme Court dealt with an order of the trial court disallowing object