The High Court dismissed a revision petition seeking to challenge an order rejecting the affidavit of a new defense witness in a civil suit, holding that the petition was not maintainable under Section 115 CPC as the impugned order was interlocutory.
Revision petition dismissed; order of the trial court rejecting the affidavit of Sh. V.K. Seth stands.
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petitioner bank is aggrievcd by that order.'fhis is whal the lcarncd trial Courlhas Signature Not Verified Digitally Signed By:AMULYA c.R.P.7/2011 naqc1 of4 Certify that the digital file and physical file have been compared and the digital data i s as p er the physical file and no page is missing.
S
said i1para nos. 3and 4 of the impugned order whiel rejcctingthe affidavit of the new defence witness:
"Counsel for defendant no. 2 has stated orallythat even though the name of the witnessSh. V.K.Seth, Manager of the bank has not been mentioned inthe list of witnesses,that doesnot debar the defendant no. 2 from examininghim. A pelusalof ordersheet shows that on l2.l0.09,lastand finaloppoltunity was granted to defendant no. 2 to concludehis DE.I{owever, on the next date itself, i.e. 07.12.09, adjournmentwas soughton behalf of defendant and on further next date i.e.02.02.10,affidavit of DW V.K.Seth was filed. It is undoubtedly truethat the defendantoan exatnineas many number of witnesscs as hewishes,so far as their depositionis relevant and their evidence is vitaland not fiivolous or vexatious. Ld. Counsel for theplaintiffhas drawn my attention to the affidavit filed by Sh. V.K. Seth, Managerof UBI and affidavitof Sh. Tek Chand, Assistant Manager of UBI.Pcrusalof the sameshows that witness Sh. V.K. Seth wants to depose withrespectto Ex' D-l to Ex. D-4, Ex. D-7 to Ex. D-9 and Ex. D-5, Hx.D-6, Ex. D-i0 andEx. D- 11. In his affidavit, Sh. TekChand,'Assistant Managcr,UBI has sought to rely upon the same exhibits.It has been stated by counsel for defendant no. 2 that Sh. V.K.Seth, Managcr, UBI wants to depose in the capacity of an official witnessand has nothingto say from his personal knowledge as such. Theaffidavit filed by Sh. Tek chand and sh. v.K. seth are identical.Defendantho. 2 has not stated as to how the evidenceproposed to bc given by V.K. Seth can fortify the claim of the bak any furtherwhenboth Sh. V.K. Seth and Tek Chand are deposing on the basis ofsamerecords of the bank and none is deposing on the basis ofpersonal knowledge.The evidence of DW-2 Sh.'I'ek Chand is notcompletcas yet and DW-2 has not given any satisfactory reason in his reply to theapplicalionas to why there is need for examination of theManager of thc bank when the Assistant Manager of the bank is alreadydeposing in the present case, nor does the affidavit of sh. v.K. seth show that hewants to depose with respect to certain new or differcntfacts orcan throw light upon certain new aspects inthe prcscntcasc or is acquainted with certain new facts pertaining tothis case.
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accordingly allowed and affidavitof Sh. V.K. Sethis to be put off the recold.T)
It has been contended by learned counsel forthe petitioner bank that the evidence of Shri V.K. Seth is rnaterialfor proper adjudicationof the controversy between theparties and shouldnot have beenrejected just becausehis name was not included in the list of the *itnessesandsornepart of his affidavitcontained averments which wele similar to what had bccnstatedby the witnessof the bank, who had already been examined.
Learned counsel for the respondent,on the other hand, submitted that the levision petition itself is not maintainable inview of the provisoto sub-section1 of Section 115 of the Code of Civil Procedureand furthsr that there was no new fact whatsoever stated by Shri V.K.Seth whichhadnot bcen statedby the witness already examined by the bank and, therefore, learnedtrial Coult has rightly refused to accept the affidavit of Shri V.K.Seth.
Section 115 of the Code of Civil Proccdurereads:
('Bsvlslen- t(l)] The High Couft rnay call for thc record of an case which has been decided by any Court subordinate to suchl-ligh Court and in which no appeal lies thereto, and if suchsuborditlateCourt appears--
(
(a) to have exercised ajurisdiction not vested in it by law, or
(b) to have failed to exercise ajurisdictiott so vested, or
(c) to have acted in the exercise of itsjurisdiction illegally or withmaterial irregularity,
thc }{igh Couft may make such order in thecasc as it thinks fit:
Provided that the High Court shall no, under this scction, vary orreverse any order rnade, or any order deciditrg auisstte,in tlte courseof a suit or other proceeding, except wlterethe order, if it had been rnade irr favourof the pafty applying for revision,would have filallydisposedof the suitor other proceedings.
(2)'l'he }ligh Court shall not, under this section, vary or reverse any decree or ordcr against whiclr an appeal lies either tothe llighCourl or to any Court subord inate tltereto.
(3) A revision shall not operate as a stay of srrit or otherproceeding
c.R.P.7l20rr
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before the Court except where suchsuit or other proceedingis stayed by the High Court.
Explanation.-In this section, theexpression "anycasewhich has been decided" includes any ordernrade, orany orderdeciding an issue in the course of a suit or other proceeding."
I find force in the argument of the lealnedcounselfor the respondent that the revision petition is liable to be rejected inview of the proviso to sub-section1 of Section 115 CPC to the effect that no orderpassed in a suit shallbe set aside in revision unless the impugned order wouldhave disposed of the suit finally in case it had been passed in favour of the revisionist.The impugned order is an interlocutory and even if it had beenpassed infavoru of the petitionerit would not have disposed of the suit, one way orthe other.So, I am not inclined to entertain this revision petition on thisground alone.
This revision petition is accoldingly dismissed.
P.K. BHASIN, J
AUGUST O4,2OI1 pg/sh
c.R.P.7/2011
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1 issue framed by the court
Whether the revision petition is maintainable under Section 115 CPC when the impugned order is interlocutory and does not finally dispose of the suit.
1 provisions across 1 enactments
Petitioner Bank
Defendant no. 2
P.K. Bhasin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
