JUDGMENT
Manmohan Sarin, J.
(1) Petitioner by this revision petition challenged the order dated 23.7.1986, passed by the then Sub-Judge, First Class, closing the evidence of the petitioner-plaintiff in the suit. The learned Sub-Judge had declined the request for an adjournment noting that neither any witness was present nor had any been summoned. It is further recorded that since the respondent/ defendant did not want to produce any evidence nor any arguments were addressed vide a separate judgment, the suit of the petitioner/plaintiff was dismissed.
(2) The petitioner remained content with challenging the above order in revision and did not prefer any appeal against the judgment dismissing the suit. As objection has been raised by the learned Counsel for the respondent on the maintainability of the revision petition, since no appeal has been preferred against the judgment delivered on the same day. The plea being that the impugned order merged into the judgment passed on the same day dismissing the suit and the petitioner was obliged to file an appeal and it was not open to him to challenge the order in revision.
(3) Before proceeding further with the matter, the facts in brief may be noted: (I)Petitioner had instituted the suit for recovery of Rs. 7,710.00 against the respondent on the basis of a Promissory Note and a receipt. Issues in the case were framed on 4.3.1986. The case was fixed for evidence of the petitioner on 30.4.1986, when no evidence was led. The case was then adjourned to 23.7.1986. Petitioner is stated to have been out of station on the said date. Counsel, therefore, requested for an adjournment and to be granted another opportunity to lead evidence. It is stated that the petitioner was to bring other witnesses alongwith him and accordingly, had not taken any steps to summon witnesses. The impugned order declining to give another opportunity was assailed as having caused substantial miscarriage of justice and vitiated by material irregularity, calling for interference in the revisional jurisdiction.
(4) As regards the objection to the maintainability of the revision petition, Mr. P.R. Monga, learned Counsel for the petitioner, relied on a Division Bench decision of this Court in Siri Krishan Bhardwaj v. Manohan Lal Gupta, . The Court held that a revision petition against an order declining leave to defend was maintainable, even though a decree may have been passed, pursuant to the refusal of leave to appear and defend the suit. The Court held that the effect of refusal of lev e to appear and defend, is that the allegation in the plaint by a deeming provision stand admitted. The allegation in the plaint being admitted, decree has to follow. This means that the decree follows as a consequence of the earlier order of refusal to grant leave to appear and defend. When a subsequent order, even if it be a decree, is a consequential order to an earlier order and the earlier order is set aside the latter order must also fall and directions to that effect have to be given. Therefore, if the impugned order is reversed or modified the consequential order or decree will also have to be modified or directions will have to be given that the same is of no effect. Mr. Monga endeavoured to draw support from the above decision by arguing that the judgment passed dismissing the suit was a consequential order to the order of closure of evidence of the petitioner/plaintiff. Learned Counsel also relied on S.S. Khanna v. Brig. F.f. Dillon, , in support of his contention that the impugned order was revisable. The Apex Court in the latter case had held, “NOR is the expression in which no appeal lies thereto appearing in Section 115, Cpc susceptible of the interpretation that it excludes the exercise of revisional jurisdiction, when an appeal may be competent from the final order.”
(5) On a consideration of the matter, I am of the view that the decision in Sin Krishan Bhardwaj v. Manohan Lal Gupta (supra) would not advance the petitioner’s case. In a suit under Order xxxvi, Cpc, where leave to defend is declined, a decree has to follow of necessity. Therefore, either the order refusing leave to defend could be challenged or decree that is passed finally could be appealed against it. However, cases like the present one, where the order closes the evidence, the suit need not of necessity result in dismissal or decree. In case, there was an admission by the defendant in the written statement, there could be a decree based on the said admission. In case of closure of evidence, it need not result in suit being decreed as it is open to the Court to call upon the plaintiff to lead further evidence to prove his case. The order dismissing the suit was not a consequential order, which of necessity had to follow.
(6) The order such as the impugned order closing evidence would not fall within the class of orders that are called ‘dependent orders’. Reference is invited to G. Ramegowda v. The Special Land Acquisition Officer, . The Apex Court noted that the appeals had been preferred against the orders of the High Court condoning the delay in filing of the appeals to the Apex Court. In the meanwhile, the main appeals themselves were disposed of by the High Court on merits. It was argued before the Apex Court that since the appeals themselves have been disposed of on merits by the High Court, the consideration of the correctness of the order condoning the delay in the appeal need not be gone into. The Apex Court held that the order condoning the delay fell in the class of orders, which are “dependent orders” and observed, “this is an instance of what are called ‘dependent orders’ and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory.
(7) As discussed above, the order closing the evidence would not fall within the class of dependent orders.
(8) Even if the petitioner had a good case on merits in the revision petition, having failed to challenge the final judgment in an appeal, he has allowed the petition to become infructuous inasmuch as the suit already stands dismissed and no appeal has been preferrd against it. Even if the revision was to be allowed, the relief sought would be infractions and the impugned order not being a ‘dependent order’ it would not affect the ultimate decision in the suit, which has become final. The revision petition is accordingly, dismissed as infructuous.