JUDGMENT :

1. Heard Mr. Pritish Kumar learned counsel for revisionist and Mr. Viswa Nath Mishra learned counsel for opposite party No.1. In view of order being passed, notices to opposite parties 2,3 and 4 stand dispensed with.

2. Revision under Section 115 of the Code of Civil procedure has been filed against order dated 15th November, 2022 in regular suit No. 2216 of 2022 whereby application for issuance of commission under Order XXVI Rule 9 of the Code filed by the plaintiff-opposite party No.1 has been allowed.

3. At the very outset learned counsel for opposite party No.1 has raised preliminary objection regarding maintainability of revision under Section 115 of the Code with the submission that the order impugned is merely interlocutory in nature and does not amount in case decided as envisaged under Section 115 of the Code and therefore revision would not be maintainable. He has placed reliance on judgment rendered by Hon'ble Supreme Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur Versus M/s. Swaraj Developers and others reported in 2003 AIR (SCW) 2445 as well as judgment rendered by High Court of Madras in the case of Pormusamy Pandaram Versus The Salem Vaiyappamalai Jangamar reported in A.I.R. 1986 Madras 33.

4. Learned counsel for revisionist in his rebuttal has submitted that neither of the aforesaid judgments relied upon by learned counsel for opposite parties are applicable in the present case since they do not consider the U.P. amendment incorporated in Section 115 of the Code and has in turn placed reliance on judgment rendered by co-ordinate Bench of this Court in the case of Lalti Devi and another Versus Bindu Bihari Verma and others, Writ C No. 41940 of 2013 to submit that revision under Section 115 against decision on application under Order XXVI Rule 9 of the Code would be maintainable in terms of section 115(1) (c) and section 115 (3)(ii) of the Code since a jurisdiction has been exercised illegally and with material irregularity ignoring the specific conditions indicated in Order XXVI Rule 9 of the Code.

5. So far as maintainability of revision under Section 115 of the Code from an order passed in an application for issuance of commission under Order XXVI Rule 9 of the code is concerned, this court finds that the judgment rendered by co-ordinate Bench of this Court in Lalti Devi (supra) is to the point as considered the judgement rendered by Full Bench of this Court in the case of Rama Shanker Tiwari Versus Mahadeo and others reported in 1968 AWR 103 in which the term 'case decided' has been explained in the following manner:-

"23. I am, therefore, of opinion that every order granting or dismissing an application for amendment of pleading will not give rise to a case decided revisable u/S. 115 of the Code. An order allowing or disallowing an application for amendment of pleading may however, give rise to a case decided revisable under that Section if the amendment sought has or is likely to have a direct bearing on the rights and obligations of the parties and affects or is likely to affect the jurisdiction of the Court. To this extent the decision in Mst. Suraj Pali's case can, in may opinion, be said to be no longer good law.

24. The opinion of the majority of Judges constituting the Full Bench is that an order passed u/O. VI R.17 of the CPC, either allowing an amendment or refusing to allow an amendment, is a "case decided" within the meaning of that expression in S.115, Code of Civil Procedure."

6. The co-ordinate Bench has thereafter held revision to be maintainable under amended Section 115 as applicable in the State of Uttar Pradesh in the following terms:-

"26. In view of aforesaid discussions, this Court believes that the trial court in not deciding the application under Order 26 Rule 9 of C.P.C. on merit and dismissing the same by taking a pedantic view has exercised its jurisdiction illegally and with material irregularity, therefore, the case being covered under Section 115 (1)(c) a