JUDGMENT S.S. Kulshrestha, J.
1. Heard the learned Counsel for the parties and also perused the materials on record.
2. This revision under Section 115 of the Code of Civil Procedure has been brought against the order dated 4.8.2004 passed by the learned Addl. District Judge/JSCC Aligarh in Suit No. 653 of 1995 Syed Asharaf Ali and Ors. v. Onkar Singh and Ors. whereby application 202-C moved on behalf of the plaintiff for recalling the defence witnesses who could not be properly cross-examined on 31.1.2004. It has been contended that the plaintiff witnesses who filed affidavit were declared hostile and so an application was moved on his behalf for permitting other witnesses to be examined but that application was rejected by the Court in September, 2003. As against that orders, civil revision was also preferred. Learned Counsel for the plaintiff was busy in making argument in the aforesaid revision but in the meantime, suit No. 653 of 1995 was taken up by the trial Court for the examination of the defence witnesses. Learned Counsel for the plaintiff preferred cross examination in haste and omitted to put relevant question of law. It has also been mentioned that due to paucity of time and inadvertence of the lawyer, material questions was omitted to be asked from the witnesses. This revision was resisted on behalf of the defendant/opposite party. Much emphasis has been laid that it is altogether an inter locutory order and revision is not maintainable. Suffice is to mention that the principle of law enunicated in the case of Shiv Shakti Cooperative Housing Society, Nagpur v. Swraj Developers and Ors., AIR 2003 SC 2434 would not come in the way. In that regard it shall be useful to refer the provisions of Section 115 as amended by THE CODE OF CIVIL PROCEDURE (UTTAR PRADESH AMENDMENT) ACT, 2003 which reads as under:-
115. Revision. (1) A superior Court may revise an order passed in a case decided in an original suit or other proceeding by a Subordinate Court where no appeal lies against the order and where the Subordinate Court has--
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the tile of the case, to the effect that no revision in the case lies to the district Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district Court.
(3) The superior Court shall not, under this section, vary or reverse any order made except where,--
(i) 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, or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the superior Court.
Explanation I, --- In this section, ----
(i) the expression 'superior Court' means --------
(a) the district Court, where the valuation of a case decided by a Court subordinate to it does, not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district Court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the district Court exceed five lakh rupees;
(ii) the expression 'order' includes an order deciding an issue in any original suit or other proceedings.
Explanation II.--- The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.
From the perusal of clause 3 (ii) it is clear that where the order would occasion a failure of justice or cause irreparable injury, such revision may be entertained against that order. Placing reliance on the principle of law laid down in the case of Sunder Theatres v. Allahabad Bank Branch Civil Lines, Jhansi and Anr. ARC 1998 (2) 605 and Allumalla Kannam Naidu v. Smt. Allumalla Simhachalam, AIR 2003 AP 239 and also on the case of Dasu Jayavani and Ors. v. Bale Seethapati and Ors., AIR AP 2003 Page 293, it was emphasized by the learned Counsel for the revisionist that the provisions of Order XVIII, Rule 17 would not bar the Court to cross examination. Mere lapses on the part of one or the other Counsel would not deprive the plaintiff to have the cross examination. In this regard, it will also be relevant to mention that earlier application was moved by the plaintiff for permitting him to produce the witnesses which was rejected by the trial Court. As against that order, revision was preferred which was allowed on 31.7.2004. Case was re-opened by the Court and other witnesses were produced subsequent to the impugned order, no delay can be attributed on the part of the plaintiff. Refusing to recall witnesses for further cross examination would cause injustice to the plaintiff particularly in the circumstances when sufficient reasons for the same has been assigned. In the given circumstances, impugned order is set aside. Revision is allowed. Trial Court is directed to recall the defendants witness for further cross examination and case should be decided as far as possible within the period of two months.