JUDGMENT
M.M. Kumar, J.
1. This is a revision petition directed against the order dated 30.3.2001 passed by the Civil Judge (Jr. Division), Ludhiana dismissing the application of defendant No. 2-petitioner filed under Order 18 Rule 17-A of the Code of Civil Procedure (for brevity, the Code) seeking permission for adducing additional evidence by producing an expert and to rebut the evidence of the expert produced by the plaintiff-respondents.
2. Brief facts of the case unfolded in this revision petition and necessary for deciding the controversy raised are that plaintiff-respondents 1 to 3 filed a suit for grant of declaration to the effect that plaintiff-respondents 1 to 3 and defendant-respondent No. 4 are in joint possession of two suit properties and are owners to the extent of 1/4th share each being the natural and class I heirs of S. Tara Singh deceased. A prayer has also been made for permanent injunction restraining defendant No. 2-petitioner from alienating the suit property in any manner. A further declaration has been sought by plaintiff-respondents 1 to 3 that the registered will dated 5.12.1994 purported to be executed by late S. Tara Singh in favour of defendant No. 2-Petitioner is void, illegal forged, fabricated and fictitious. The plaintiff-respondents 1 to 3 have also alleged in the suit that defendant No. 2-petitioner on the basis of registered will has got transferred to herself one of the suit properties bearing Municipal Unit No. B-XVI-571/572 (old) and B-XVI-729 (new). Defendant No. 2-petitioner controverted the averments made in the plaint filed by plaintiff-respondents 1 to 3 with regard to the registered will dated 5.12.1994 executed in her favour by her deceased father-in-law S. Tara Singh. She has categorically denied that it was in any manner void, illegal, forged, fabricated or a fictitious document. The Civil Judge on the basis of the pleadings of the parties framed as many as nine issues on 26.9.1996. Onus of issue No. 3 which relates to proving illegality, forgery or fictitiousness of the will was placed on plaintiff-respondents 1 to 3 and issue No. 3 reads as under:-
“3. Whether the plaintiff is entitled to the declaration that the will alleged by the defendant No. 2 dated 5.12.1994 by deceased Tara Singh is void, illegal, forged, fabricated and fictitious? OPP”
Issue No. 2 as originally framed on 29.6.1996 was reframed on 16.10.1997 which was regarding the execution of the will and as to whether the will was executed by deceased S. Tara Singh in a sound and disposing state of mind. The onus to prove this issue was placed on defendant No. 2-petitioner and the issue reads as under:-
“2. Whether deceased Tara Singh executed a valid will in his sound and disposing state of mind on 5.12.94 in favour of defendant No. 2? OPD NO.2.”
Defendant No. 2-petitioner in order to discharge the onus placed on her, examined two attesting witnesses of the registered will dated 5.12.1994. Plaintiff-respondents 1 to 3 while leading their evidence in affirmative on issue No. 2 examined one handwriting expert Dr. Atul K. Singla. The expert submitted his report after comparing the signature of deceased S. Tara Singh on the registered will dated 5.12.1994 with his admitted signatures available in the bank record. Defendant No. 2-petitioner in order to rebut the expert evidence adduced by plaintiff-respondents 1 to 3 submitted an application on 23.11.2000 seeking permission to adduce additional evidence by examining handwriting expert Shri P.S. Ahuja. The application filed by defendant No. 2-petitioner has been rejected mainly on the following grounds: (a) the assertion of defendant No. 2-petitioner that she was ignorant and was not aware about the existence of bank account of late S. Tara Singh in which the admitted signatures of the deceased who executed the registered will dated 5.12.1994 stands falsified because appearing as DW-5 she admitted in her cross-examination that deceased S. Tara Singh had bank accounts at Ludhiana in various banks like OBC, PNB and State Bank. She has further admitted that some of these bank accounts were joint with her and in some other accounts, her husband defendant-respondent No. 4 was a nominee. Therefore, the Civil judge held that defendant No. 2-petitioner was fully aware of existence of bank accounts since beginning; and (b) the handwriting expert produced by plaintiff-respondents 1 to 3 has been produced in rebuttal by plaintiff-respondents 1 to 3 as RPW-10,Defendant No. 2-petitioner cannot be permitted to adduce rebuttal evidence of the rebuttal by producing her own handwriting expert especially when her own handwriting expert Shri P.S. Ahuja conducted the cross-examination on behalf of defendant No. 2-petitioner on the handwriting expert examined by plaintiff-respondents 1 to 3. Feeling aggrieved by the dismissal of the application filed by her under Order 18, Rule 17-A of the Code, defendant No. 2-petitioner has filed present revision petition.
3. I have heard Shri Sunil Chadha, learned counsel for defendant No. 2-petitioner and Shri J.S. Chaudhary, senior counsel for plaintiff-respondents 1 to 3 and have perused the record with their assistance.
4. I would have decided the revision petition on merits and would have considered the respective submissions made by learned counsel for the parties but the necessity of doing so has been obviated because a sustainable preliminary objection has been raised by counsel for plaintiff-respondents 1 to 3 Shri Jagmohan Singh Chaudhary by submitting that the revision petition against dismissal of application filed under Order 18, Rule 17-a of the Code is not maintainable. Another reason for not expressing any opinion on merits is that rights of defendant No. 2-petitioner would be prejudiced when the impugned order is challenged in appeal under provisions of Order 43, Rule 1-A of the Code in the event a judgment and decree is pronounced against defendant No. 2-petitioner. The learned counsel placed reliance on a judgment of the Supreme Court in the case of Gurdev Singh and Ors. v. Mehnga Ram and Anr., A.I.R. 1997 S.C. 3572. He has also relied upon two judgments of this Court in the cases of Smt. Parmeshwari Devi and Ors. v. Mohinder Kumar and Ors., (1998-3)120 P.L.R. 558 and a short order dated 18.9.2001 passed by a learned Single Judge of this Court in Civil Revision No. 4910 of 2001, titled Mehar Singh v. Mahan Singh and Ors. wherein relying on the cases of Gurdev Singh (supra) and Smt. Parmeshwari Devi (supra), the revision petition has been held to be not maintainable where the application under order 18, Rule 17-A of the Code has been dismissed.
5. On the contrary, learned counsel for defendant No. 2-petitioner has argued that the revision petition has been held to be maintainable in numerous judgments of this Court and has placed reliance on the following cases viz. Hazara Singh and Ors. v. Bachan Singh and Ors. (1998-1)118 P.L.R. 765; Ram Nath v. Lal Singh, (1998-2)119 P.L.R. 749: Rajesh Bedi v. Dhar Bedi, (1998-2)119 P.L.R. 33; Balwant Singh v. Dalip Kaur, 1999(1) P.L.J. 687 and Braham Singh v. Ajit Singh (1999-3)123 P.L.R. 32. The learned counsel has also argued that the revision petition may not be maintainable if the application has been allowed by the Civil Judge under Order 18, Rule 17-A of the Code but in cases where the application has been dismissed, the revision petition shall be held to be maintainable. The learned counsel substantiated his argument by relying upon a judgment of the Supreme Court in the case of Prem Bakhsi and Ors., v. Dhuram Dev and Ors., (2002-1)130 P.L.R. 558 (S.C.) wherein the Supreme Court has held that when an application under Order 6 Rule 17 of the Code allowing amendment of pleadings is allowed, then such an order would not be amenable to challenge under Section 115 of the Code. According to the learned counsel, the Supreme Court has held further that if the application under Order 6, Rule 17 of the Code is dismissed, then the revision petition would be maintainable.
6. 1 have thoughtfully considered the respective submissions made by the learned counsel for the parties and am inclined to sustain the preliminary objection raised by learned counsel for the plaintiff respondents 1 to 3 because the judgment of the Supreme Court in Gurdev Singh’s case (supra) does not make any distinction for the exercise of revisional jurisdiction where the application has been dismissed or allowed. In that case, Gurdev Singh who had filed appeal before the Additional District Judge, Ferozepur was allowed to pcoduce and examine an handwriting expert by the appellate Court. The order allowing the application under Order 41, Rule 27 of the Code was challenged by the respondents under Section 115 of the Code before the High Court and the order passed by the Additional District Judge, Ferozepur was set aside. Feeling aggrieved against the order passed by this Court under Section 115 of the Code, Gurdev Singh approached the Supreme Court. The Supreme Court set aside the order passed by the High Court on the ground that the appellate court had the jurisdiction to deal with that order when the appeal was to be heard finally. Their Lordships of the Supreme Court observed as under:-
“We have heard learned Counsel for the parties. The grievance of the appellants before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an application under Order XLI, Rule 27(b), Code of Civil Procedure (CPC) the learned Additional District Judge at the final hearing of the appeal wrongly felt that additional evidence was required to produce as requested by the appellants by way of examination of a handwriting expert. The High Court in the impugned order exercising jurisdiction under Section 115, C.P.C. took the view that the order of the Appellate Court could not be sustained. In our view the approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the Appellate Court. The reason is obvious. The Appellate Court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 specially Clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in Second Appeal. After an appellate decree is passed, but at this interim stage, the High Should not have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned Counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of the High Court. In the result, the Additional District Judge, Ferozepur shall now decide the appeal on its own merits. We make it clear that the order of the learned Additional District Judge, Ferozepur dated 12.12.1995 shall now be complied with, subject to the liberty reserved to the respondent as aforesaid.”
7. The reasoning given by the Supreme Court is that in view of the jurisdiction vested in the Appellate Court by Order XLI, Rule 27 Clause (b) of the Code, the Appellate Court hearing the matter finally could have exercised the jurisdiction one way or the other. If the order was wrong on merits, it would always be open to the respondents to challenge the same in accordance with the law if the occasion arises to carry the matter in second appeal. In the present case also, the provisions of Order 18, Rule 17-A of the Code clothe the Civil Judge with adequate power to recall any witness at any stage and examine that witness. Order 18, Rule 18 of the Code also confers the power on the Civil Judge to inspect any property or anything, at any time, at any stage of the suit. Moreover, under Order 43, Rule 1-A of the Code, an order passed under Order 18, Rule 17-A of the Code can be made subject matter of challenge in the first appeal to be filed against the decree. The provisions of Order 43, Rule 1-A of the Code read as under:-
ORDER XLIII
APPEALS FROM ORDERS
[1-A. Right to challenge non-appealable orders in appeal against-decrees.- (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded]
8. A perusal of Rule 1-A of Order 43 of the Code makes it obvious that any order made under this Code against a party and any judgment pronounced thereupon and a decree is drawn against such party, then such a party in an appeal against the decree would be entitled to assail such an order. The aggrieved party can always argue that such an order should not have been made and the judgment should not have been pronounced. Therefore, there is no doubt left that the distinction sought to be drawn by the learned counsel for defendant No. 2-petitioner is not borne out either from the judgment of the Supreme Court in Gurdev Singh’s case (supra) or from the provisions of Order 43, Rule 1-A of the Code. It is further pertinent to mention that this Court in Parmeshwari Devi’s case (supra) has taken the view that after amendment incorporated in 1976 in Section 115 of the Code, an over all restriction on the scope of application for revision against interlocutory order has been imposed. The observations of this Court in Parmeshwari Devi’s case (supra) reads as under:-
“2. Provision to Sub-section (1) of Section 115, of the Code of Civil Procedure, prohibits the High Court from varying or reversing any order 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.”
3. The impugned order does not fulfil the requirement of Clause (a): nor that of irreparable injury postulated in Clause (b) of the provision. This brings us to the other ingredient of Clause (b), namely, the litmus test of the question “whether the order, if allowed to stand, would occasion a failure of justice?” 9. It is pertinent to note that the proviso was added to sub-section I of Section 115 by the Code of Civil Procedure (Amendment) Act No. 104 of 1976, as it was felt necessary that an overall restriction on the scope of application for revision against interlocutory orders should be imposed. Simultaneously, in such cases, in addition to the pre-existing provision in Sub-section (1) of Section 105, provision was made for a right to challenge non-appealable interlocutory orders, whereupon any judgment is pronounced, in an appeal against the decree under the newly added Rule 1-A of Order 43 C.P.C. This was done to ensure continuous and expeditious trial and disposal of proceedings in suits by excluding unnecessary interference with interlocutory orders in revision, unless the same resulted in a judgment and decree against the concerned party, and giving to the aggrieved party a right only in an appeal against the decree to contend that such order should not have been made.”
9. The submission made by the learned counsel for defendant No. 2-petitioner that in Prem Bakhshi’s case (supra), a revision petition against dismissing the application under Order 6, Rule 17 of the Code has been held maintainable, would not require serious consideration for the reasons that; (a) the Supreme Court has held that permitting amendment in pleadings under Order 6, Rule 17 of the Code ordinarily would not cause any prejudice but the refusal to allow amendment in pleadings may cause some injustice; and (b) once the refusal to amend the pleadings is held to cause prejudice, then it would be covered by the provisions of Clause (b) of proviso to Sub-section (1) of Section 115 of the Code. However, in case of an application rejected under Order 18, Rule 17-a of the Code has been rejected, prejudice would be caused. Therefore, such a case may not be covered by Clause (b) of provision to Sub-section (1) of Section 115 of the Code. Therefore, I have no hesitation in rejecting the argument raised by the learned counsel for defendant No. 2-petitioner.
10. Therefore, the law laid down by the Supreme Court in Prem Bakshi’s case (supra) cannot be applied to a case arising under Order XVII Rule 17-A of the Code. The view taken by the Supreme Court in Gurdev Singh’s case (supra) as well as by this Court in Parmeshwari Devi’s case (supra) would govern the issue raised in this revision petition.
11. For the reasons stated above, this revision petition fails and the same is held to
be not maintainable. However, defendant No. 2-petitioner would be entitled to challenge
the order dated 30.3.2001 impugned by her in this revision petition in an appeal against
the judgment and decree, in the event such a judgment and decree is pronounced against
her by virtue of the provisions of Order 43, Rule 1-A of the Code.