JUDGMENT Binod Kumar Roy and R.K. Mahajan, JJ.
1. This appeal was filed earlier as a revision and numbered as Civil Revision No. 185 of 1997. Vide Order dated 9.7.1997, a learned single Judge on a prayer made by the learned counsel for the Appellant, permitted to convert this civil revision as an appeal which has been placed before us. By the impugned order the plaintiffs application 122ga praying to call upon the defendant to answer the questions mentioned therein has been allowed subject to payment of cost of Rs. 100 and the defendant has been directed to answer within one week, and appears to have been passed under Order XI. Rules 1 and 8 of the Code.
2. To a question put by us as to how an appeal lies under Order XLIII, Rule 1 (f) of the Code of Civil Procedure against an order directing the appellant to file reply to interrogatory, Sri Mandhyan, the learned counsel for the appellant contended that as the order in question has been passed under Order XI, Rule 21 of the Code of Civil Procedure, an appeal lies under Order XLIII. Rule 1 (f) of the Code of Civil Procedure. According to the decision in Maheshwari Oil Mill v. M/s. Girjanath Durga Saran, AIR 1980 All 265, an order refusing to grant leave to a party to deliver interrogatories to the plaintiff is not a 'case decided' and, thus, no civil revision lies.
3. We do not find substance in the contention of Shri Mandhyan.
4. Order XI. Rule 21 of the Code reads thus :
"Non-compliance with order for discovery.--(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action."
This provision clearly shows that the Court has been vested to pass consequential orders after any party fails to comply with any order to answer interrogatories or for discovery or inspection of documents. This stage is yet to reach.
5. It is a settled law, through a catena of decisions of the Privy Council and the Supreme Court, that an appeal is a creation of statute and no one has got an inherent right to prefer an appeal. See O. Moore v. A. Tayee, AIR 1935 PC 5 ; Darshan Singh v. Ram Pal Singh, 1992 Suppl. (1) SCC 191.
6. Now we revert back to Maheshwari Oil Mill (supra). In that case, which was decided by a learned single Judge, the learned counsel appearing on behalf of the petitioner had relied upon a decision of the Nagpur Court in AIR 1934 Nag 181, holding that such an order amounts to 'case decided'. The said decision was not followed by this Court on the ground that no reason has been given therein and thus it is not possible to agree with the view taken by the Nagpur High Court. The learned Judge proceeded to rely upon a decision of the Mysore High Court in Y. Venkateswara Rao v. K. Nagamma, AIR 1972 Mys 254.
7. As there was difference of views amongst the different High Court as to whether the expression 'case decided' used in Section 115 of the Code includes an interlocutory order or not, the Committee felt that this expression should be defined so that the doubt as to whether Section 115 of the Code applies to an interlocutory order may be set at rest and accordingly, it added a proviso and an Explanation attached to Section 115 of the Code. The recommendation of the Committee was approved by the Parliament and an Explanation was attached, which came into force w.e.f. 1.2.1976. Our State also amended Section 115 of the Code and attached an Explanation w.e.f. 1.8.1978 which reads thus :
"Explanation.--In this section, the expression "any case which has been decided" includes any order deciding an issue, in the course of a suit or other proceeding."
8. It is also well-settled. (See Mahalakshmi Oil Mills v. State of U. P., AIR 1989 SC 335 ; Central Inland Water Transport Corporation f. B. Ganguly, AIR 1986 SC 1571 ; forest Range Officer v. P. M. Ali, 1993 Suppl (3) SCC 627, that whenever the Legislature uses the word 'Includes', it means an extensive definition. However, it goes without saying that the jurisdiction vested in the civil revisional court has to be exercised only when the other conditions mentioned in the section are fulfilled by a revision petitioner and that, too, in order to prevent failure of justice to the party it was made. Similar will be the position if a writ petition is filed.
9. We are not called upon to hold as to whether against the order impugned a civil revision or a writ petition under Article 227 will lie as such a question is required to be answered when the petitioner files such an application. All what we say is that the learned single Judge has not held that an appeal lies against the impugned order rather he has merely permitted the civil revision to be converted as an appeal on a request made by the learned counsel.
10. For the reasons, aforementioned, this appeal is dismissed as not maintainable.