An order allowing a party to adduce further evidence after completion of the other party's evidence does not amount to a 'case decided' within the meaning of Section 115, C.P.C., unless it involves adjudication of some right or obligation of the parties in controversy and satisfies the conditions laid down in the proviso of Section 115(1), C.P.C.

D. P. MOHAPATRA, J.

( 1 ) THE defendant in T. S. 383/82/102/82 pending in the Court of the Sub-Judge, Ist Court, Cuttack is the petitioner in this revision. He impugns the order dated 28-3-83 in the said suit rejecting his petition dated 21-12-83 praying to call upon the opposite party (plaintiff) to state expressly whether he intends to recall any of his witnesses for further examination and not to proceed with his examination till further examination of the witnesses for the opposite party is over.

( 2 ) THE gist of the facts material for purpose of this proceeding is that the opposite party has filed the suit for preliminary decree for partition of the suit properties and for determination of his share therein. The case of the plaintiff, in short, is that by an oral partition on 30-10-78 the joint family property described in the schedule of the plaint fell jointly to the share of himself and the defendant who are brothers. It is his further case that this oral partition was reduced to writing in the form of a memorandum of a family settlement dated 27-2-1979.

( 3 ) THE petitioner in his written statement denied the oral partition said to have taken place on 30-10-78. He further stated that the memorandum of family settlement was obtained by undue influence and it was otherwise invalid.

( 4 ) BY order dated 29-4-83 the trial Court allowed an application under O. 6, R. 17, C. P. C. filed by the petitioner and permitted him to amend the written statement by addition of para 33 (a) of the written statements. In the said para the petition stated that all the members of H. U. F. who were parties to the oral partition and the memorandum of family settlement alleged in the plaint having not been impleaded as parties in the suit, the suit is bad for non-joinder of necessary parties and as such, is liable to be dismissed. Thereafter, the petitioner filed another application to amend para 28 (c) of the written statement by way of substitution of figure 1978' therein by figure 1980'. This application having been rejected by the trial Court, the petitioner filed a revision petition (C. R. 487/83) in this Court challenging the said order. This Court by order dated 24-10-83 allowed the revision petition. While allowing the amendment, the Court observed :-"the plaintiff, if he so chooses, shall be permitted to recall the witnesses already examined by him for re-examination". By order dated 7-11-83 the trial Court framed an additional issue on the basis of the amendment of the written statements allowed by his order dated 29-4-83. The issue so framed was :- "whether the suit is bad for non-joinder of all the members of H. U. F. who were parties to the oral partition and memorandum of family settlement?"thereafter, when the case came up on 11-11-83, the trial Court posted it to 22-11-83 for hearing with a direction that the parties may adduce further evidence including an additional issue framed. On 22-11-83 the case was ordered to be put up on 1-12-83 for hearing when the plaintiff may adduce further evidence on additional issue framed by order dated 7-11-83. The Court further observed that in case the plaintiff does not want to adduce any further evidence on the additional issue, he may file a memo to that effect and defendant may proceed with further evidence. On 1-12-83 the case was adjourned to 7-12-83 for further evidence by the plaintiff. On 21-12-83 the petitioner filed an application praying inter alia that the Court may direct the opposite party to exercise his. option to give the names of the witnesses to whom he wants to recall for examination in terms of the order in C. R. 487/84 and whom he wants to examine as per the order of the trial Court and only after the examination of such witnesses, if any, is completed further examination of the defendant should be taken up. It may be mentioned here that when the matter was carried to this Court in C. R. 486/83 the petitioner was being examined and due to the order of stay passed