-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 117 OF 2008 CIVIL REVISION APPLICATION NO. 117 OF 2008 CIVIL REVISION APPLICATION NO. 117 OF 2008 IN IN IN NOTICE OF MOTION NO. 4354 OF 2006 NOTICE OF MOTION NO. 4354 OF 2006 NOTICE OF MOTION NO. 4354 OF 2006 IN S.C.SUIT NO. 7200 OF 2000 Shri Omprakash Satyanarayan Singh .. Petitioner. (Org.Deft.) V/s. Smt. Yasinbee W/o. Shami Mohammed .. Respondent. --- Mr.M.V.Holamagi for the Petitioner. Mr.S.S.Redekar for the Respondent. --- CORAM : J. H. BHATIA, J. CORAM : J. H. BHATIA, J. CORAM : J. H. BHATIA, J. DATED : 08th February, 2008. DATED : 08th February, 2008. DATED : 08th February, 2008. P.C. : P.C. : P.C. :- . Heard the learned counsel for the parties. 2. The petitioner is the original defendant in S.C.Suit No. 7200 of 2000. The plaintiff-respondent filed the suit for possession under section 6 of the Specific Relief Act in the year, 2000. The issues were framed on 16.01.2003 and on 10.02.2003, the plaintiff filed his affidavit in the form of examination-in-chief. He was cross-examined on certain dates but cross-examination was not completed. Two other -: 2 :- witnesses were also examined on 18.11.2003 by the plaintiff. On that date, the defendant or his Advocate did not appear. A notice of motion was taken out by the defendant to recall the witnesses and to allow him to cross-examine. That notice of motion was allowed by the trial court subject to the cost. After that, the witnesses were examined on some dates. 3. On 11.10.2006 the learned counsel for the defendant cross-examined the plaintiff but cross examination remained incomplete and the matter was adjourned to 08.11.2006. On 08.11.2006 the defendant was present but his Advocate was busy in another court and therefore, at the request of the defendant the matter was kept back for some time. When the matter was called again at 1.20 p.m. still the Advocate for the defendant was not present and the defendant refused to cross-examine the witness. In the circumstances, the court passed the order, closing the evidence of the plaintiff. Thereafter, the defendant took out notice of motion No. 4354/2006 for recalling the plaintiff and his witness for cross-examination. That notice of motion was opposed by the plaintiff. After hearing the parties and in view of the conduct of the defendant in not completing the cross-examination even though the evidence of the plaintiff was commenced in the year -: 3 :- 2003, the learned trial court rejected the notice of motion and refused to recall the witnesses for cross-examination. Therefore, the defendant has preferred the present revision application challenging that order. 4. At the outset, the learned counsel for the plaintiff-respondent contended that the impugned order is not subject to the revision under section 115 of the CPC in view of the amendment made in the year 1999. Section 115(1) of the CPC reads thus : . "115.Revision.--[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-- . (a) to have exercised a jurisdiction not vested in it by law, or . (b) to have failed to exercise a jurisdiction so vested, or . (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit : [Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] . Explanation,-- In this section, the expression, "any case which has been decided" -: 4 :- includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.] It is clear that the High Court may call the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto and if the subordinate court appears to have exercised a jurisdiction not vested in it or to have failed to exercise its jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. 5. However by the Amendment Act, 1999 (46 of 1999) w.e.f.01.07.2002 the original clause (b) of the proviso has been deleted and the original clause (a) has been merged in the language of the proviso. In view of the proviso, it is clear that the High Court shall not under the revisional powers vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. 6. Undoubtedly, the suit is pending before the trial court and because the defendant and his counsel failed to cross-examine the witnesses, inspite of -: 5 :- repeated opportunities given, the court passed the order closing the evidence of a particular witness. Naturally this was the order in the course of the suit and therefore, it is an interlocutory order. If the order would have been passed in favour of the defendant/ revisional applicant, the proceedings in the suit would not have come to end and it would not have been finally disposed of. 7. The learned counsel for the revisional applicant vehemently contended that the trial court has dismissed the notice of motion which is a proceeding and if that notice of motion would have been allowed, it would have been disposed of finally and therefore, the impugned order rejecting that notice of motion is revisable under section 115. It is difficult to accept this contention. The notice of motion in such matters or any application in the proceedings or suit is to revoke certain orders passed in the course of the suit and nothing more. In the Bombay High Court and in other courts in this city, there is a practice of making such application in the form of notice of motion or chamber summons and they are separately registered, may be for the purpose of proper record and statistics. But outside Bombay City, such application is simply given exhibit number in the main matter and the application is disposed of in the course -: 6 :- of the suit or the proceedings. Merely, because such application is separately registered as a notice of motion or chamber summons it does not become a proceeding, separate and independent from the main suit. Therefore, such notice of motion or chamber summons will have to be considered and treated as part of the suit or the main proceedings and not separate and independent from the same. In view of this, even if the application, which has been registered as notice of motion made by the defendant to recall the witness would have been allowed, the suit would not have been finally disposed of, Therefore, in view of the language of proviso to section 115 of CPC, it is clear that the impugned order is purely interlocutory and the High Court cannot exercise the revisional jurisdiction in respect of such matters. In view of this legal position, the revision application is not tenable and is liable to be dismissed. 8. In the result the revision application stands dismissed. (J.H.BHATIA, J) .....