The court's decision was based on the interpretation of Proviso 1 to Section 115 of the Code of Civil Procedure and the determination of whether the impugned order would result in failure of justice or cause irreparable injury to the petitioner.

S.S. Sudhalkar, J. - This appeal has been filed against the order of the learned Additional District Judge, Amritsar dated 7.9.1994, vide which he allowed the production of additional evidence. When this appeal came up before the learned Single Judge on 20.4.1995, learned counsel for the respondents contended that no appeal was maintainable against an order permitting additional evidence. Learned counsel for the appellant conceded to this contention praying the appeal to be treated as revision petition. Learned counsel for the respondents also contended that no revision petition would be maintainable in view of proviso (a) to Section 115 of the Code of Civil Procedure. Again the matter came up for hearing before the learned Single Judge on 2.5.1995. After hearing the learned counsel, the learned Single Judge admitted the case to a Division Bench.

2. The facts are that the suit filed by the appellant was decreed by the learned Additional Senior Sub Judge and the appeal was filed by some of the respondents against it. During the pendency of the appeal, the appellants in the appeal moved an application under Order 41 Rule 27 of the Code of Civil Procedure for production of the original Will dated 2.6.1987 registered on 23.9.1987 by way of additional evidence. This application was allowed and it was also observed that the appellants in this appeal can also examine the attesting witness and scribe of the will to prove the original will and the present appellant/plaintiff was also given an opportunity to lead evidence in rebuttal.

3. Learned counsel for the appellant has urged that this appeal may be treated as revision and the counsel for the respondent agreed to the same. Therefore, hereinafter the appellant shall be referred as the petitioner. This matter was heard as a revision petition. The question that comes for our determination is, as to whether this revision is competent or not, and if competent, whether the order of the lower appellate Judge should be set aside or not.

4. Learned counsel for the petitioner has relied on the proviso to Section 115 of the Code of Civil Procedure. Section 115 is a provision regarding filing revision. Proviso 1 to Section 115 of the Code of Civil Procedure is as under :

"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -

a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."

5. Admittedly, the impugned order is not such that if it had been made in favour of the present petitioner, it would have finally disposed of the suit or proceedings. Therefore, the petitioner does not get the benefit of clause (a) of the proviso to Section 115. The question to be decided is only, whether the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the petitioner.

6. Learned counsel for the petitioner has argued that he gets the advantage of sub-clause (b) of the abovesaid proviso.

7. Learned counsel for the respondents has cited various authorities. He has cited the case of Gurdev Singh and others v. Mehnga Ram and another, 1997(2) PLJ 75. In that case also the lower appellate Court had allowed additional evidence by way of examination of Hand-writing Expert under Order 41 Rule 27(b) at the stage of final hearing of the appeal. It was held by the Supreme Court that the High Court in revision at interim stage, when the appeal is pending for final hearing, should not interfere with the order, and if the order of the lower appellate Court under Order 41 Rule 27(b) is wrong, on merits, it is open to challenge after the appellate decree is passed.

8. He has also cited the case of Balwant Singh and another v. Bish