1. The present writ petition has been filed under Article 226/227 of the Constitution of India against the Impugned order dated 10th November, 2003, passed by 4th Additional District Judge, Unnao, rejecting the petitioner's application (paper No. Ga-94) which the defendant petitioner had moved under Order XI of the Code of Civil Procedure for discovery by interrogatories.

2. A preliminary objection has been raised in the present writ petition as to whether the impugned order by which petitioner's application moved under Order XI of the Code of Civil Procedure for discovery by interrogatories being rejected by trial court shall be amenable to jurisdiction under Article 227 of the Constitution of India? Whether a revision under Section 115 of the Code of Civil Procedure shall be maintainable against the impugned order?

3. The brief fact of the case is that the opposite party No. 2 had filed a Regular Suit No. 150 of 2000 before the Civil Judge, Senior Division, Unnao for recovery of certain amounts as per Schedule A annexed with the plaint along with interest. Petitioner is a registered company engaged in the business of manufacturing the finished leather. Petitioner Nos. 2, 3 and 4 are its Director. According to averment contained in the writ petition on account of financial problem the unit of petitioner No. 1 has been closed since 1998. The opposite party Nos. 2 and 3 had filed a regular suit on the ground that they have alleged to supply certain raw materials, i.e., raw hides to the petitioners for the manufacturing of finished leather in pursuance to alleged agreement. Inspite of alleged supply of raw hides the defendant petitioner had not paid the amount in question. On the other hand, the case of the defendant petitioner is that the plaintiff respondent had taken loan to the tune of Rs. 3,23,000 from the petitioners and when the petitioner had requested for repayment of the said loan the suit in question was filed. During the pendency of suit the petitioner had moved an application under Order XI of the Code of Civil Procedure to discover certain fact through interrogatories. The application has been registered as paper No. C-94. A copy of the application has been filed as Annexure-5 to the writ petition. The interrogatories filed as Annexure-5 to the writ petition contains certain queries, which have got bearing over the issue, involved in the suit in question. However, after hearing learned Counsel for the parties the application dated 24.10.2003, moved under Order XI of the Code of Civil Procedure was rejected by the learned 4th Additional District Judge by impugned order dated 10.11.2003, contained in Annexure-I to the writ petition. Application was rejected by the learned Additional District Judge on the ground that the application was moved with intention to prolong the litigation. It has been also observed by learned Additional District Judge that the query made by the defendant petitioner can be sorted out during the course of cross-examination of the witness.

4. While assailing the impugned order Shri Manish Kumar learned Counsel for the petitioner submits that an application moved under Order XI of the Code of Civil Procedure can be rejected only on the ground mentioned in Rule 12 of Order XI and not on other ground.

5. Mohd. Saeed learned Counsel for the respondents while defending the impugned order had raised preliminary objection that against the impugned order writ petition is not maintainable in view of recent amendment done in Section 115 of the Code of Civil Procedure. Petitioner can challenge the impugned order only by filing an application under Section 115 of the Code of Civil Procedure.

6. For convenience Section 115 of the Code of Civil Procedure is reproduced as under :

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 to 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, it has been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) 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 High Court.

Explanation.--In this section the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

7. Learned Counsel for the respondents further submits that any order made or deciding an issue shall be amenable to revisional power of the High Court. Accordingly, on account of availability of statutory alternative remedy the writ petition is not maintainable.

8. Shri Manish Kumar, learned Counsel for the petitioner had submitted that in the old Code of Civil Procedure also similar provision was existing which was later on deleted by the State amendment. Now again the same provision has been restored by State amendment notified on 1.7.2002. Shri Manish Kumar learned Counsel for the petitioner had relied upon the judgment in Jitnath Singh and Ors. v. State of Bihar and Ors. ; Dr. Ashok Kumar Tripathy v. Dalmia Institute of Scientific and Industrial Research ; Maheshwari Oil Mill v. Girjanath Durga Saran and Surya Dev Rai v. Ram Chander Rai and Ors. 2003 (3) ALJ (SC) 2057.

On the other hand, respondent's counsel Shri M. Saeed, relied upon the Division Bench judgment of this Court in Smt. Akhtari Begum and Ors. v. Nasim Ahmad and Anr. 2003 (5) AWC 4242 : 2003 All CJ 1867 and Arjun Singh v. A.D.J., Behror .

9. The provision contained in Section 115 of the Code of Civil Procedure should be interpreted literally or by applying the golden rule of interpretation without adding or substituting any word when language of the provision is clear. The provision of the statute should be read with its natural meaning unless suffers from ambiguity. Accordingly, in the present case since petitioner's application for interrogatories has been rejected by trial court, it amounts to disposal of an issue finally, which attains finality.

10. A plain reading of the proviso of Section 115 shows that a court shall not interfere under revisional jurisdiction in case any order deciding an issue or any order made in the course of suit does not amount to final disposal of the suit or other proceeding. In Black's Law Dictionary Seventh Edition, page 835 "issue" has been defined as under :

Issue" : A point in dispute between two or more parties.

According to Black's Law Dictionary, an issue may be defined as collateral issue, deep issue, general issue, immaterial issue, issue of fact, legal issue, special issue, ultimate issue, hot issue, new issue, original issue, shelf issue and lawful issue. The definition given in Black's Law Dictionary of these various type of issues are reproduced as under :

Collateral issue. A question or issue not directly connected with the matter in dispute.

Deep issue. The fundamental issue to be decided by a Court in ruling of a point of law.

General issue. 1.A plea (often a general denial). By which a party denies the truth of every material allegation in an opposing party's pleading 2. The issue arising from such a plea.

Immaterial issue. An issue not necessary to decide the point of law.

Issue of fact. A point supported by one party's evidence and controverted by another's.

Issue of law. A point on which the evidence is undisputed, the outcome depending on the court's interpretation of the law.

Legal issue. A legal question, usu at the foundation of a case and requiring a court's decision.

Special issue. 1. At common law, an issue arising from a specific allegation in a pleading, Special issues are no longer used in most jurisdiction, 2. See special interrogatory under Interrogatory.

Ultimate issue. A not-yet-decided point that is sufficient either in itself or in connection with other points to resolve the entire case.

Hot issue. A security that, after an initial or secondary offering, is traded in the open market at a substantially higher price. Also termed hot stock.

New issue. A stock or bond sold by a corporation for the first time, often to raise working capital.

Original issue. The first issue of securities of a particular type or series.

Shelf issue. An issue of securities that were previously registered but not released at the time of registration.

Lawful issue. Descendants, including descendants more remote than children. At common law, the term included only those who were children of legally recognized subsisting marriages.

11. Keeping in view the definition of word "issue" it can be very well inferred from the word "any order deciding an issue" existing in the proviso of Sub-section (C) of Section 115 of the Code of Civil Procedure is comprehensive in nature and shall cover almost each and every issue or point of decision in a suit during the course of trial. Accordingly, in case an application is decided finally moved for a particular relief or order during the pendency of a suit, in pursuance to provisions contained in the Code of Civil Procedure, its final disposal shall amount to decide an issue in the course of a suit. In the absence of any remedial provision a revision shall lie against such order under Section 115 of the Code of Civil Procedure.

12. In the case of Surya Dev Rai (supra) Hon'ble Supreme Court held that certiorari jurisdiction should not be exercised as a matter of course, High Court can refuse to exercise jurisdiction in case if no failure of justice occasioned. It has been further held that the jurisdiction may be exercised by the High Court under Article 227/226, in case the subordinate court has found to be acted by assuming jurisdiction which was not vested in it or by exceeding its jurisdiction or acted in flagrant disregard of law or rules of procedure. For convenience paras 21, 34 and 38 of the Apex Court judgment reproduced as under :

21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or Tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the proceeding errors occasioning failure of justice.

34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the owner of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the Code of Civil Procedure. And is available to be exercised subject to rules of self discipline and practice which are well settled.

38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :

(1) Amendment by Act No. 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure amendment Act No. 46 of 1999 are nevertheless open to challenge in and continue to be subject to certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory Jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the Jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (1) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdiction is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct for smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as if not corrected at that very moment may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the list.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not cover itself into a court of appeal and Indulge in re-appreciation or evaluation of evidence or correct errors in drawing inference or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Court in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the Court should have made in the facts and circumstances of the case.

13. In the case of Maheshwari Oil Mill (supra) the controversy was relating to a refusal to grant leave to a party to deliver interrogatories covered by old provision under Code of Civil Procedure. Accordingly this Court held that order refusing to grant leave to a party to deliver interrogatories is not a case decided within the meaning of Section 115 of the Code of Civil Procedure. The case of Dr. Ashok Kumar Tripathy (supra) relates to order refusing of grant leave to deliver interrogatories. The Orissa High Court had held that the order should not be revisable. The Division Bench of Patna High Court had interpreted the word "case" and held that it includes proceedings in a civil court in which jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable.

For convenience para 17 of the judgment from Jit Nath Singh's case (supra) is reproduced as under :

It has been contended on behalf of the Union of India that no revision lies to this Court against the order of the court below because the order does not decide a case between the parties within the meaning of Section 115 of the Code. In S.S. Khanna v. F.J. Dillon , it has been held that the expression 'case' as used in Section 115 of the Code is not restricted to a litigation in the nature of a suit in a civil court it includes a proceeding in a civil court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. In the instant case by the impugned order the court below has directed the receiver to hand over the possession of the aforesaid three mines to the custodian. This order was passed on an application filed by opposite party No. 32 made the application as a representative of the Central Government. He involved the jurisdiction of the court below for determination of his claim or right to get possession of the aforesaid three mines from the receiver. He claimed that he was legally entitled under the ordinance to get possession of the aforesaid three mines. That claim or right of opposite party No. 32 and of the Union of India through him has been decided by the court below. In my opinion therefore, the court below has decided case by the impugned order within the meaning of Section 115 of the Code and there is no substance in this contention of learned Counsel for the Union of India. The petitioner is not only a managing contractor but is also a party to the suit and whatsoever right he may have to the properties in dispute, that is custodia legis and managed by the receiver. He is also, therefore, a party aggrieved who can move this Court against the impugned order. The application therefore, is maintainable.

14. The case of Smt. Akhtari Begum (supra) decided by Division Bench of this Court relates to controversy where an order rejecting an application seeking to summon original Will was rejected by court of small causes. The Division Bench of this Court arrived to the conclusion that a revision is very well maintainable under Section 115 of the Code of Civil Procedure. Accordingly, jurisdiction under Article 227 of the Constitution of India should not be exercised.

15. In the case of Arjun Singh (supra) the controversy was relating to a dispute where the trial court had closed the evidence of defendant petitioner and fixed the case for argument. A writ petition was filed.

The Rajasthan High Court had declined to interfere with the impugned order on the ground that while exercising supervisory jurisdiction under Article 227 of the Constitution of India High Court should not interfere with an order of subordinate court unless it is shown that the subordinate court had failed to exercise a jurisdiction which was vested in it or it has acted by exceeding its jurisdiction which was not permitted under law.

16. In a case in Sadhana Lodh v. National Insurance Co. Ltd. and Anr. , Hon'ble Supreme Court held that where remedy of appeal is not available to aggrieved person against the order passed by District Judge then such person may prefer a revision before High Court under Section 115 of the Code of Civil Procedure. A writ under Article 226 of the Constitution of India can be filed only in case a revisional remedy is not available to an aggrieved party.

For convenience relevant portion from the case of Sadhana Lodh (supra) is reproduced as under :

... this being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been available to the aggrieved person, he is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115, Code of Civil Procedure has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 of the Code of Civil Procedure, in such a situation a writ petition unreserved under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115, Code of Civil Procedure, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.

17. In one another case in Sambhaunath Digambar Jain v. Mohanlal and Ors. , where the application under Order VI, Rule 17 and Order VIII, Rule 6A of the Code of Civil Procedure was rejected by the trial court declining to permit the defendant to amend the written statement and counter-claim, it was held by Hon'ble Supreme Court that such application can be challenged by invoking revisional jurisdiction.

For convenience paras 3 and 4 of the judgment of Hon'ble Supreme Court in Sambhavnath's case (supra) is reproduced as under :

The respondents herein filed a suit against the appellant for setting aside the said order of the Registrar. On 13.9.1982, the appellant filed written statement wherein an averment was made that the portion of property where the girl's school was running was the property of the trust. It may be mentioned that the Registrar did not include the said portion of the school as trust property. On 15.9.1982, the appellant filed an application under Order VI, Rule 17 and Order VIII, Rule 6A of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure and sought to incorporate in its counter-claim the said school as a trust property. On 15.9.1982, the appellant filed an application under Order VI, Rule 17 and Order VIII, Rule 6A of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure and sought to incorporate in its counter-claim the said school as a trust property by way of an amendment to its written statement. The said application was rejected by the trial court and being aggrieved by the said order, the appellant filed a revision which was dismissed as not maintainable. That is how the parties are before us.

Learned Counsel for the appellant has urged that the order passed by the trial court was revisable and view taken by the High Court is erroneous. We are of the view that the High Court for ends of justice ought to have considered the application on merit keeping in view Rule 6A of Order VIII of the Code of Civil Procedure and in accordance with the law. We, therefore, hold that the above order rejecting the application of the appellant by the trial court was revisable.

18. In view of facts and circumstances of the case and statutory provisions, and law discussed hereinabove undoubtedly a revision shall be maintainable under Section 115 of the Code of Civil Procedure against the impugned order. Accordingly on account of availability of alternative remedy under the revisional jurisdiction present writ petition is not maintainable under Article 227 or 226 of the Constitution of India. Still it shall be open to the petitioner to prefer a revision under Section 115 of the Code of Civil Procedure.

19. In view of above, writ petition is dismissed on account of availability of alternative remedy under Section 115 of the Code of Civil Procedure, Petitioner may file a revision accordingly against the impugned order, if he desires to do so.

Since there was an interim order passed by this Court staying the further proceedings of Regular Suit No. 150 of 2000 pending in the court below, for further period of 15 (fifteen) days from today the proceedings of the suit in question shall remain stayed to enable learned Counsel for the petitioner to prefer a revision.