JUDGMENT
Rabin Bhattacharyya, J.
1. This revisional application is directed against order No. 50 dated 17.2.93 passed by the learned First Assistant District Judge at Barasat in T.S. Case No. 103 of 1990. Before I embark on an enquiry to examine the viability and the potentiality of the claim, a few questions may be posed up in this case for disposal of the revisional application.
2. Can a competent court of law decide a question afresh when decided once? Can a cause of action which is not recurring survives after a decision rendered by a court of law? Can there be any immortality of the proceedings within the realm of Section 11 of the Code of Civil Procedure and the principle analogous thereto?
3. In the perspective of the above question it is found that the court has been often tortured and tormented by the parties to decide an issue which has already been disposed of by a court of law. The court has always answered the question in the negative that the court is divested of jurisdiction to decide a controversy between the parties which reached the stage of finality. It received a final burial by the courts of our country, but the parties by their everlasting desire have not abated their actions in the court of law.
4. The parties have frequently harped on the same string in vain.
5. The question arises in this way, for which, a reflection of the fact is the crying need of the hour.
6. While travelling through the background of the case, it is well discernible that the revisionist put in an application for appointment of a hand writing expert, the object being to compare and examine the thumb impression of the revisionist with the thumb impression in the deed dated 27.1.61. To fortify the claim, the plaintiff revisionist has sought for the aid to prove the authenticity and genuineness of the thumb impression from the index registered maintained by the Registration Authority. The plaintiff revisionist laid a dispute as the two thumb impressions, according to him, is hostile to each other striking the thumb impression in the deed in question.
7. The defendant opposite party is sought to have contradicted the claim of the plaintiff revisionist on the ground that the application is not maintainable and in absence of the document on record, the claim for comparison and the examination of thumb Impression is an idle attempt as the hand writing expert will be launched into great disadvantage to examine the signature of the plaintiff. It will be divested of the purpose.
8. The learned court upon examination of the claim of both the parties and after having heard the learned counsel for the parties rejected the application chiefly on the ground that a prayer of identical nature containing the same set of facts was rejected by the learned court by its order No. 44 dated 7.7.92, when this revision shows its head for reversal of the order impugned.
9. In attacking the impugned order, the learned counsel has argued with much emphasis that the learned court below did not consider the real controversy in issue and arrived at a conclusion of its own which militates against the cardinal principle of Section 115 of the Code of Civil Procedure 1976. The controversy about the authenticity and the genuineness of the thumb impression is the turning point in the history of the litigation between the parties and the same could be set at rest by appointment of an expert who is saddled with an obligation to verify the thumb impression. The jurisdiction so vested in him since not exercised by the learned court below, the plaintiff revisionist is within his power and reach to excavate the relief on the anvil that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The jurisdictional error and the existence of the impugned order on record are the twin grounds which inspired the learned counsel for the plaintiff revisionist to challenge the property of the order.
10. The right of the plaintiff revisionist has been questioned by the learned counsel for the defendant opposite party on the ground that the revisionist cannot harvest any relief in the court of revision as the consideration of the issue has already been decided once and, therefore, it cannot be reagitated in any court of law as the principle analogous to resjudicate is activated or animated based upon public policy. The law does not encompass that a person should be vexed twice over the same cause of action. The jurisdiction thus exercised by the learned court is not a departure from the object and scheme of Section 115 of the Code of Civil Procedure 1976. The publicity given by the learned counsel for the plaintiff revisionist is illusory as the order according to the learned counsel for the opposite party does not bring the impugned order within the mischief of the Section 115 of the CPC.
11. Having considered the respective submissions made by the learned Counsel for the parties, the Code of Civil Procedure has suffered a drastic amendment where Section 115 is not exception. Under the amended Code and by operation of Section 115, revislonal jurisdiction can be invoked only if the order under revision amounts to a case decided. According to the amended Code Clauses (a) to (d) of Section 115 have enumerated the circumstances in which the Jurisdiction is to be exercised the two parts of the Section are not only inseparably connected but also distinct and different in their ambit and role. The first part without any ambiguity postulates the basic conditions for invoking the jurisdiction while the second part lays down the circumstances in which the Jurisdiction may be exercised. The refusal to entertain the claim of the plaintiff revisionist by the learned court on the ground that the identical relief sought for by him, since suffered a rejection against which no action was taken by the plaintiff revisionist is by itself forbade the right of the plaintiff revisionist from raking up his cause on the self-same subject. This approach of the learned court below does not foster any right in favour of the revisionist to agitate his claim within the realm of Section 115 of the Code of Civil Procedure. Prayer for refusal of appointment of a hand writing expert does not constitute the expression “case decided”. It evinces, therefore, that the revisional jurisdiction cannot be invoked to butress the claim of the plaintiff revisionist. The impugned order on a plain reading does not reveal that any issue was decided in the course of a suit or during the carriage of a litigation. It is well-known about the meaning of the word “issue” which means material proposition of fact afirmed by one and denied by the other.
12. In the background of the above reasonings, I cannot pursued myself to agree to the submissions made by the learned counsel for the revisionist that the order impugned is revisable. But I cannot help agreeing with the submissions of the learned counsel for the opposite party since it is well protected by the canon of interpretation of law after borrowing support from the order Impugned.
13. In the light of the above, I do not see any reason to interfere with the impugned order passed by the learned court below since it is sound and based upon legal principles.
14. The revisional application accordingly fails. But considering the circumstances, I do not award any cost. The interim order if any, stands vacated. The order may be forthwith transmitted to the learned court below.
