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(1964) 4 SCR 409 : AIR 1964 SC 497

In the Supreme Court of India

(BEFORE A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH, JJ.)

MAJOR S.S. KHANNA (IN BOTH THE APPEALS) … Appellant;

Versus
BRIG. F.J. DILLON (IN BOTH THE APPEALS) … Respondent.
Civil Appeals Nos. 320 and 321 of 1963* , decided on August 14, 1963
Advocates who appeared in this case :
N.C. Chatterjee, Senior Advocate (M/s M.K. Ramamurthi, R.K. Garg, S.C. Agarwal
and D.P. Singh, Advocates of M/s M.K. Ramamurthi and Co., with him), for the
Appellant (In both the Appeals);
A.V. Vishwanatha Sastri, Senior Advocate (In both the Appeals)(Bakshi Shiv Charan
Singh and S.N. Anand, Advocates, with him), for the Respondent (In both the
Appeals).
The Judgment of the Court was delivered by
In Civil Appeal No. 320 of 1962
J.C. SHAH, J.— Brig. F.J. Dillon and Major S.S. Khanna hereinafter called “Dillon”
and “Khanna” respectively carried on business in partnership as Construction
Engineers. They agreed to dissolve the partnership with effect from February 15, 1956.
By the deed of dissolution it was agreed that Dillon was to take over all the assets and
properties of the partnership as absolute owner and to pay all the debts and to
discharge all the liabilities of the partnership and to keep Khanna indemnified against
all demands and claims in relation to the partnership business.
2. But the deed did not terminate the disputes between the partners, and Khanna
commenced an action against Dillon in the Court of the Subordinate Judge, 1st Class,
Delhi “for dissolution of the partnership and rendition of accounts”. On January 12,
1957, the parties arrived at a compromise (which was incorporated into a decree of
the Court) confirming the earlier dissolution of the partnership, subject to a scheme of
winding up, under which all outstandings realised from the debtors of the firm and the
sale proceeds of certain assets were to go into a banking account to be opened in the
joint names of Dillon and Khanna and were to be applied in the first instance to meet
the liabilities of the dissolved firm, and the balance in that joint account was to belong
to Dillon. Some outstandings of the dissolved partnership were collected by Dillon and
were deposited in the joint account of Dillon and Khanna.
3. Dillon filed a suit in the Court of the Subordinate Judge at Delhi for a decree for
Rs 54,250 with future interest alleging that between the months of May 1957 and
November 1957 he had, at the request of Khanna, advanced in three sums an
aggregate amount of Rs 46,000 as short-term loans which Khanna had promised to
but had failed to repay. Khanna pleaded that he did not borrow any loans from Dillon,
and that the amounts claimed in the action being advanced, even on the plea of
Dillon, out of joint funds belonging to the two partners, action for recovery of those
amounts was in law not maintainable.
4. Out of the issues raised by the trial court in the suit, the third issue viz.:
“Whether this suit is not maintainable and the plaintiff is not entitled to institute
this suit, alleged in paras 15, 16, 17, 18 of the written statement?”
was at the request of Khanna tried as a preliminary issue, and it was held that the suit
being by a partner against another partner of a dissolved firm which was in the
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process of winding up, and in respect of advances from the partnership assets, was
not maintainable.
5. The High Court of Punjab in exercise of its revisional jurisdiction set aside the
order, and directed that the suit be heard and disposed of according to law.
With special leave this appeal is preferred by Khanna.
6. The jurisdiction of the High Court to set aside the order in exercise of the power
under Section 115 of the Code of Civil Procedure is challenged by Khanna on three
grounds:
(i) that the order did not amount to “a case which has been decided” within the
meaning of Section 115 of the Code of Civil Procedure;
(ii) that the decree which may be passed in the suit being subject to appeal to
the High Court; the power of the High Court was by the express terms of Section
115 excluded; and
(iii) that the order did not fall within any of the three clauses (a), (b) and (c) of
Section 115.
The validity of the argument turns upon the true meaning of Section 115 of the Code
of Civil Procedure, which provides:
“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.”
The section consists of two parts, the first prescribes the conditions in which
jurisdiction of the High Court arises i.e. there is a case decided by a subordinate Court
in which no appeal lies to the High Court, the second sets out the circumstances in
which the jurisdiction maybe exercised. But the power of the High Court is exercisable
in respect of “any case which has been decided”. The expression “case” is not defined
in, the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a
litigation in the nature of a suit in a civil court: Balakrishna Udayar v. Vasudeva Aiyar1 ;
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. On the question
whether an order of a Court which does not finally dispose of the suit or proceeding
amounts to a “case which has been decided”, there has arisen a serious conflict of
opinion in the High Courts in India and the question has not been directly considered
by this Court. One view which is accepted by a majority of the High Courts is that the
expression “case” includes an interlocutory proceeding relating to the rights and
obligations of the parties, and the expression record of any case includes so much of
the proceeding as relates to the order disposing of the interlocutory proceeding. The
High Court has therefore power to rectify an order of a Subordinate Court at any stage
of a suit or proceeding even if there be another remedy open to the party aggrieved
i.e. by reserving his right to file an appeal against the ultimate decision, and making
the illegality in the order a ground of that appeal. The other view is that the expression
“case” does not include an issue or a part of a suit or proceeding and therefore the
order on an issue or a part of a suit or proceeding is not a “case which has been
decided”, and the High Court has no power in exercise of its revisional jurisdiction to
correct an error in an interlocutory order.
7. An analysis of the cases decided by the High Courts — their number is legion —
would serve no useful purpose. In every High Court from time to time opinion has
fluctuated. The meaning of the expression “case” must be sought in the nature of the
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jurisdiction conferred by Section 115, and the purpose for which the High Courts were
invested with it.
8. By their constitution the High Courts of Calcutta, Madras and Bombay were
within Presidency Towns, as successors, to the respective Supreme Courts competent
to issue writs of certiorari, mandamus and prohibition. This was so because the
jurisdiction of the Courts of King's Bench and Chancery in England to issue those writs
was conferred upon the three Supreme Courts. But exercise of this jurisdiction which
was established by Charters of the British Crown, was (except as to British subjects
and servants of the Company) restricted. The jurisdiction did not ordinarily extend to
the territories beyond the Presidency Towns: Ryots of Garabandho v. Zamindar of
Parlakimedi2 . The appellate courts, called the Sudder Adalats which exercised
appellate powers over the East India Company's Courts in the moffussil of the three
Presidencies were not the Courts of the King of England: they were the creatures of
Regulations, and did not administer the law of England. The courts had no power to
issue any of the prerogative writs — except probably the writ of habeas corpus. But
the power to superintend the exercise of jurisdiction by the moffussil Courts was found
essential to the proper functioning of the Sudder Courts and the Sudder Courts were
accordingly invested by express legislative enactments with authority to rectify orders
of the moffussil Courts subordinate thereto. Bombay Regulation II of 1827 of Chapter
I, Section 5(2) authorised the Sudder Court at Bombay to call for the proceedings of
any subordinate civil court and to issue such orders thereon as the case may require.
No regulation was however enacted elsewhere conferring revisional jurisdiction upon
the Supreme Court or the Sudder Court in respect of adjudication by subordinate
courts. The Code of 1859 contained no provision for the exercise of revisional powers
by the Sudder Courts, but by Section 35 of Act 23 of 1861 the Sudder Courts were
invested with the power to call for the record of any case decided in appeal by the
subordinate courts and in which no further appeal lay, when it appeared that a
subordinate court had exercised jurisdiction not vested in it by law. With the setting
up of the High Courts in the Presidency Towns of Calcutta, Madras and Bombay power
of superintendence was conferred by Section 15 by the Charter Act (24 and 25 Vict.
Chapter 104) upon the High Courts over subordinate Courts. By Section 622 of the
Code of 1877 revisional jurisdiction of the High Courts was defined, and made
exercisable in the conditions set out in clauses (a) and (b) of the present Section 115.
Clause (c) was added by the amending Act 12 of 1879. This jurisdiction was
exercisable suo motu as well as on application to the High Court. It was conferred in
the widest terms. The jurisdiction was supervisory and visitorial and was
complementary to the powers conferred by clause 15 of the Charter Act, 1861, and the
subsequent Constitution Acts, and was conceived in the interest of maintaining
effective control over Courts subordinate to the High Courts. It had to be so conferred
because in the historical evolution of the powers of the diverse High Courts supervisory
jurisdiction to issue writs of certiorari and Prohibition could not be effectively made in
respect of the moffussil Courts.
9. The necessity arising out of peculiar circumstances to invest the High Courts with
the power to rectify errors committed by subordinate Courts in the exercise of their
jurisdiction and the consequent investiture of the power are indicative of the extent of
that power. The power being one of superintendence and visitorial and vested because
the supervisory jurisdiction to issue writs of certiorari and Prohibition over subordinate
courts in the moffussil could not be exercised, it would be reasonable to hold that it
was intended in the absence of any overriding reasons disclosed by the statute (and
none such appears on an examination of the statute) to be analogous with the
jurisdiction to issue the high prerogative writs and the power of supervision under the
Charter Act and its successor provisions in the Constitution Acts.
10. The expression “case” is a word of comprehensive import; it includes civil
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proceedings other than suits, and is not restricted by anything contained in the section
to the entirety of the proceeding in a civil court. To interpret the expression “case” as
an entire proceeding only and not a part of a proceeding would be to impose a
restriction upon the exercise of powers of superintendence which the jurisdiction to
issue writs, and the supervisory jurisdiction are not subject, and may result in certain
cases in denying relief to an aggrieved litigant where it is most needed, and may
result in the perpetration of gross injustice.
11. It may be observed that the majority view of the High Court of Allahabad in
Buddhulal v. Mewa Ram3 founded upon the supposition that even though the word
“case” has a wide signification the jurisdiction of the High Court can only be invoked
from an order in a suit, where the suit and not a part of it is decided, proceeded upon
the fallacy that because the expression “case” includes a suit, in defining the limits of
the jurisdiction conferred upon the High Court the expression “suit” should be
substituted in the section, when the order sought to be revised is an order passed in a
suit. The expression “case” includes a suit, but in ascertaining the limits of the
jurisdiction of the High Court, there would be no warrant for equating it with a suit
alone.
12. That is not to say that the High Court is obliged to exercise its jurisdiction when
a case is decided by a subordinate Court and the conditions in clauses (a), (b), or (c)
are satisfied. Exercise of the jurisdiction is discretionary: the High Court is not bound
to interfere merely because the conditions are satisfied. The interlocutory character of
the order, the existence of another remedy to an aggrieved party by way of an appeal,
from the ultimate order or decree in the proceeding or by a suit, and the general
equitities of the case being served by the order made are all matters to be taken into
account in considering whether the High Court, even in cases where the conditions
which attract the jurisdiction exist, should exercise its jurisdiction.
13. The Subordinate Judge in the present case held by an interlocutory order that
the suit filed by Dillon for recovery of the amounts advanced to Khanna was not
maintainable. That was manifestly a decision having a direct bearing on the rights of
Dillon to a decree for recovery of the loan alleged to have been advanced by him,
which he says Khanna agreed to repay, and if the expression “case” includes a part of
the case, the order of the Subordinate Judge must be regarded as a “case which has
been decided”.
14. The next question which falls to be determined is whether the High Court has
power to set aside an order which does not finally dispose of the suit, and when from
the decree or from the final order passed in the proceeding an appeal is competent.
Relying upon the use of the expression “in which no appeal lies thereto” in Section 115
of the Code of Civil Procedure it was urged that the High Court's jurisdiction to
entertain a petition in revision could be exercised only if no appeal lay from the final
order passed in the proceeding. But once it is granted that the expression “case”
includes a part of a case, there is no escape from the conclusion that revisional
jurisdiction of the High Court may be exercised irrespective of the question whether an
appeal lies from the ultimate decree or order passed in the suit. Any other view would
impute to the legislature an intention to restrict the exercise of this salutary
jurisdiction to those comparatively unimportant suits and proceedings in which the
appellate jurisdiction of the High Courts is excluded for reasons of public policy. Nor is
the expression “in which no appeal lies thereto” susceptible of the interpretation that it
excludes the exercise of the revisional jurisdiction when an appeal may be competent
from the final order. The use of the word “in” is not intended to distinguish orders
passed in proceedings not subject to appeal from the final adjudication, from those
from which no appeal lies. If an appeal lies against the adjudication directly to the
High Court, or to another Court from the decision of which an appeal lies to the High
Court, it has no power to exercise its revisional jurisdiction, but where the decision
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itself is not appealable to the High Court directly or indirectly, exercise of the
revisional jurisdiction by the High Court would not be deemed excluded. The judgment
of the Rajasthan High Court in Purohit Swarupnarain v. Gopinath4 on which strong
reliance was placed by the appellant does not, in our judgment, correctly interpret
Section 115 of the Code. In that case the Court relying upon an earlier judgment of a
Division Bench in Pyarchand v. Dungar Singh5 held that “where it is open to a party to
raise a ground of appeal under Section 105 of the Code from the final decree or order,
with respect to any order which has been passed during the pendency of a suit, it
should be held that an appeal in that case lies to the High Court within the meaning of
the term in which no appeal lies thereto' appearing in Section 115 of the Civil
Procedure Code”, and the exercise of revisional jurisdiction of the High Court is
excluded. It was observed in that case that the use of the word “in” instead of the
word “form” in Section 115 of the Code of Civil Procedure indicated an intention that if
the order in question was one which could come for consideration before the High
Court in any form in an appeal that may reach the High Court in the suit or proceeding
in which the order was passed, the High Court has no revisional jurisdiction. But the
argument is wholly inconclusive, if it be granted that the word “case” includes a part
of a case. Again on the footing that the use of the expression “in” and not “from”
indicates some discernible legislative intent, it must be remembered that the word
“in” has several meanings — as a preposition and as an adverb. The use of the
preposition “from” — in the sense of a source or point of commencement or distinction
— would not in the context of the clause, yield to greater clarity, because the relation
established thereby would be between “case” and appeal, and not “decided” and
appeal. If the use of the expression “in” is inappropriate to express the meaning that
orders not appealable to the High Court were subject to the revisional jurisdiction, this
substitution of “from” for “in” does not conduce to greater lucidity.
15. In considering whether the revisional jurisdiction of the High Court was
intended to cover decisions, which did not dispose of the suit or proceeding, possibility
of delay arising in the disposal of some cases because of investigation commenced by
the High Court is not, in our judgment, a sound ground for presuming that the
jurisdiction was to be limited to those matters which were finally disposed of.
16. For the effective exercise of its superintending and visitorial powers, revisional
jurisdiction is conferred upon the High Court and it would be putting an unwarranted
restriction upon the jurisdiction of the High Court to restrict it to those cases only
where no appeal would reach the High Court from the final order passed in the
proceeding. We are therefore unable to agree with the view which prevailed with the
Rajasthan High Court that there is a restriction placed upon the power of the High
Court in the exercise of the revisional jurisdiction as would limit the exercise of that
power only to cases where no appeal is competent from the final order passed in the
suit or proceeding.
17. The third question may now be dealt with. By the order passed by the Court of
First Instance on the third issue it was held that the suit filed by Dillon was not
maintainable. That decision, in our judgment, affected the rights and obligations of the
parties directly. It was a decision on an issue relating to the jurisdiction of the Court to
entertain the suit filed by Dillon. In any event the decision of the Court clearly
attracted clause (c) of Section 115 of the Code of Civil Procedure, for the Court in
deciding that “the suit was not maintainable as alleged in paras 15, 16, 17 and 18 of
the written statement” purported to decide what in substance was an issue of fact
without a trial of the suit on evidence. Dillon alleged in his plaint that at the request of
Khanna, he had advanced diverse loans (from the funds lying in deposit in the joint
account) and that the latter had agreed to repay the loans. The cause of action for the
suit was therefore the loan advanced in consideration of a promise to repay the
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amount of the loan, and failure to repay the loan. By his written statement Khanna
had pleaded in para 15 that Dillon had not advanced any money to him and that Dillon
had not claimed the amount for himself and therefore he was not entitled to file a suit
for recovery of the amounts. By para 16 he pleaded that Dillon having admitted in the
plaint that the amounts in suit were to be paid back to the joint account he was not
entitled to file the suit. By para 17 it was pleaded that a suit by one joint owner
against the other joint owner for recovery of the joint fund or any item of the joint
fund was not maintainable and by para 18 he pleaded that Dillon could not institute a
suit against him because the amount was not repayable. All these contentions raised
substantial issues of fact which had to be decided on evidence, and Dillon could not be
non-suited on the assumption that the pleas raised were correct. At the threshold of
the trial two problems had to be faced:
(1) Whether in a suit to enforce an agreement to repay an amount advanced in
consideration of a promise to repay the same, the question as to the ownership of
the fund out of which the amount was advanced is material; and
(2) if the answer is in the affirmative, whether the fund in fact belonged jointly
to Dillon and Khanna.
The Judge of the Court of First Instance unfortunately assumed without a trial an
affirmative answer to both these questions. Under Order 14 Rule 2 Code of Civil
Procedure, where issues both of law and of fact arise in the same suit, and the Court is
of opinion that the case or any part thereof may be disposed of on the issues of law
only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone
the settlement of the issues of fact until after the issues of law have been determined.
The jurisdiction to try issues of law apart from the issues of fact may be exercised only
where in the opinion of the Court the whole suit may be disposed of on the issues of
law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed
issues of law and fact as preliminary issues. Normally all the issues in a suit should be
tried by the Court: not to do so, especially when the decision on issues even of law
depend upon the decision of issues of fact, would result in a lopsided trial of the suit.
18. We are at this stage not expressing any opinion on the question whether the
allegations made by Dillon and Khanna are true: we are only concerned to point out
that what was regarded as an issue of law as to maintainability of the suit could only
be determined after several questions of fact in dispute between the parties were
determined. In proceeding to decide the third issue merely on the pleadings and on
the assumption that the allegations made by the defendant in his written statement
were true and those made by the plaintiff were not true, and on that footing treating
the joint account as of the common ownership of the two partners the trial Judge
acted illegally and with material irregularity in the exercise of his jurisdiction.
19. The High Court was therefore right in setting aside the order passed by the trial
court and in holding that without investigation as to the respective claims made by the
parties by their pleadings on the matters in dispute the suit could not be held not
maintainable.
20. The appeal therefore fails and is dismissed with costs. There will be one hearing
fee for this appeal and also CA No. 321 of 1963.
In Civil Appeal No. 321 of 1963
J.C. SHAH, J.— This appeal raises the same question which is decided in the
companion appeal and for reasons set out in the judgment therein, the appeal is
dismissed with costs.
In Civil Appeals Nos. 320 and 321 of 1963.
M. HIDAYATULLAH, J.— I have had the advantage of perusing the judgment of my
learned brother Shah, J. I agree with him that these appeals should be dismissed with
costs, but I propose to give my reasons in brief in a separate judgment. The facts have
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been stated in detail by my learned brother and I need not repeat them. For the
purpose of my judgment I shall mention only the essential facts.
23. Khanna (the appellant) and Dillon (the respondent) entered into a partnership
to do business but in February 1956 they agreed to dissolve it. A deed was drawn up
and it was agreed that Dillon was to take over all the assets and liabilities of the
partnership keeping Khanna indemnified from all liability. Later, a suit was filed for the
dissolution of partnership and rendition of accounts but it ended in a compromise. The
compromise nearly reaffirmed the terms of the earlier deed, but included a condition
that all realizations of the old partnership would be converted into cash and placed in a
joint account in the name of the two partners before being paid towards the liabilities
of the partnership.
24. These appeals arise out of two suits which were filed by Dillon against Khanna
for recovery of certain amounts aggregating to Rs 46,000 and interest which amounts
Khanna allegedly obtained as loan from the joint account. Khanna countered the suits
by contending that a the money was still in the joint names of the two partners, the
suits between partners were not maintainable. This plea led to an issue in each suit
which substantially read as follows:
“Whether the suit is not maintainable and the plaintiff is not entitled to institute
as alleged in paras 15, 16, 17 and 18 of the written statement.”
These issues were tried as preliminary and the decision of the trial Judge was in favour
of Khanna in both the suits. The trial Judge held that the suits were not maintainable,
but, instead of dismissing the suits there and then, he set them down for a future
date. Revision applications under Section 115 of the Code of Civil Procedure were filed
in the High Court by Dillon and were allowed, and the present appeals have been filed
by Khanna by special leave against the orders of the High Court.
25. The short question that arises in this case is whether the High Court was right
in exercising its jurisdiction under Section 115 of the Code of Civil Procedure. Strong
reliance was placed before us upon two decisions of the Rajasthan High Court reported
in Purohit Swarupnarain v. Gopinath6 and Pyarchand v. Dungar Singh7 in which it was
held that the jurisdiction under Section 115 of the Code of Civil Procedure can only be
exercised in a case in which no appeal lies to the High Court either directly or
indirectly after other appeals. It was contended that in the present cases appeals
would have lain to the High Court directly from the decrees, because both involved
large amounts and were tried on the regular side and that Section 115 could not be
invoked. This has led to a discussion as to the jurisdiction of the High Court created by
Section 115 of the Code of Civil Procedure.
26. The trial Judge concluded that the suits were for contribution between partners
of a dissolved firm which was in the process of winding up and that not being suits for
general accounts, were not maintainable. There can be no doubt that by this decision,
if it was erroneous, the trial Judge denied to himself a jurisdiction to try the suits.
Further it is plain that the suits, insofar as the trial Judge was concerned, were also
over notwithstanding the fact that he had fixed them on a subsequent date “for further
proceedings”. The High Court was of the opinion that the suits were plainly to recover
the amounts borrowed by Khanna from the joint account. The High Court was right in
this. Under the compromise, Dhillon was required to recover the assets, convert them
into cash and put them into a joint account not only on behalf of himself but under a
power of attorney from Khanna also on the latter's behalf, but the cash was at the
disposal of Dhillon provided he applied it first in liquidation of the joint liability.
Khanna had no share in it except to see that the liabilities were first discharged. A
borrowing from this joint account must be regarded as a loan given by Dhillon to
Khanna and the suits were, therefore, not for contribution but for recovery of loans
advanced from the joint account. The High Court was also right in holding that the trial
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Judge had no jurisdiction to keep the suits pending before himself for “further
proceedings” when he had held them to be not maintainable. The decision of the trial
Judge being erroneous and that of the High Court right, the only question is whether
the High Court properly exercised its jurisdiction under Section 115 of the Code of Civil
Procedure to correct the error.
27. Section 115 of the Code of Civil Procedure reads as follows:
“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.”
28. The power which this section confers is clearly of the nature of a proceeding on
a writ of certiorari. But it differs from that power in many ways. Certiorari has many
different forms which may be classified as follows:
(1) Certiorari to remove for trial;
(2) Certiorari for Judgment or indictment;
(3) Certiorari to quash;
(4) Certiorari for purposes of execution or coercive process;
(5) Certiorari to remove orders etc., on case stated;
(6) Certiorari to remove Depositions for Bail and;
(7) Certiorari to remove Record for use as evidence.
29. In English common law certiorari to quash issues in a completed case and the
common law is now crystallised by Order 58 of the Rules of the Supreme Court. In
America Certiorari has been differently understood and is a means of review. That
arises from the Special Appellate Jurisdiction of the United States Supreme Court
created by Statute (See U.S.C.A. Tit 28, para 1254 and from the fact that the
Supreme Court must of necessity exercise this power as a part of its appellate
jurisdiction.
30. This supervisory power of the High Court under the English Law is not to be
confused with visitorial power of the High Court exercisable by the writ of mandamus.
Mandamus issues to Courts only when justice is delayed and is a command to them to
hear and dispose of the case. There is also the writ of prohibition which issues to a
Court to stop it from taking upon itself to examine a cause and to decide it without
legal authority. The writ of mandamus was evolved much later than the writ of
certiorari and by mandamus the Courts were not directed to give any particular
Judgment but merely to give Judgment. An erroneous Judgment could be set aside on
appeal or quashed by certiorari. Prohibition lay to prevent assumption of jurisdiction
but only before an order was passed. Certiorari to quash lay in a completed case on a
question of jurisdiction and an error of law apparent on the face of the record. As Lord
Sumner observed in Rex v. Nat Bell Liquors Ltd.8 :
“Its jurisdiction is to see that the inferior Court has not exceeded its own, and for
that very reason it is bound not to interfere in what has been done within that
jurisdiction, for in so doing it would itself, in turn, transgress the limits which its
own jurisdiction of supervision, not of review, is confined. That supervision goes to
two points: one is the area of the inferior jurisdiction and the qualifications and
conditions of its exercise; the other is the observance of the law in the course of its
exercise.”
31. From the above discussion it is apparent that interference with a case before an
inferior Court by Prerogative writs could take place under the English law:
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(a) by stopping proceedings before the case was decided by a writ of prohibition;
(b) ordering the trial of a case and the delivery of Judgment by mandamus.
(c) quashing an order in a completed case for want of jurisdiction or for an error
of law apparent on the face of the record.
32. The power given by Section 115 of the Code is clearly limited to the keeping of
the Subordinate Courts within the bounds of their jurisdiction. It does not comprehend
the power exercisable under the writ of Prohibition or mandamus. It is also not a full
power of Certiorari inasmuch as it arises only in a case of jurisdiction and not in a case
of error. It has been ruled by the Judicial Committee and also by this Court that the
section is concerned with jurisdiction and jurisdiction alone involving a refusal to
exercise jurisdiction where one exists or an assumption of jurisdiction where none
exists and lastly acting with illegality or material irregularity. Where there is no
question of jurisdiction in this manner the decision cannot be corrected for it has also
been ruled that a Court has jurisdiction to decide wrongly as well as rightly. But once a
flaw of jurisdiction is found the High Court need not quash and remit as is the practice
in English law under the writ of certiorari, but pass such order as it thinks fit.
33. Judged from this angle, the decision of the trial Judge being erroneous for the
reasons pointed out by my learned brother Shah, J., the trial judge was clearly
denying a jurisdiction by holding that the suits were not maintainable. The only
question is whether these can be said to be “cases” “decided” by the Subordinate
Judge and whether the suits answer the description “in which no appeal lies”. It may
be noticed that the last phrase does not speak of an appeal ‘under the Code’. The
description therefore is a general one and applies to every decision of a court
subordinate to the High Court in which no appeal lies, whether under the Code or
otherwise. A decision of the Subordinate Court is therefore amenable to the revisional
jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law
or an appeal lies therefrom.
34. The decision in this case was clearly one which put an end to the suit and the
fact that the Subordinate Judge still kept the suits pending before himself for ‘further
proceedings’ for reasons not very clear did not alter the nature of the decision. Indeed
as the High Court also pointed out, the fact that the Subordinate Judge did not
dismiss the suits and did not draw up decrees for that purpose, is itself an exercise of
jurisdiction with material irregularity if not also illegality. Insofar as the parties were
concerned the suits were no longer live suits since the decision, such as it was, had
put an end to them.
35. It is however contended on the authority of the two decisions of the Rajasthan
High Court that the words ‘in which no appeal lies’ indicate a case in which no appeal
lies to the High Court from the final determination either directly or ultimately and it is
pointed out that in these suits there would ultimately have been decrees of dismissal
which would have been appealable. It is thus urged that the power under Section 115
of the Code of Civil Procedure could not rightly be invoked. The opinion of the
Rajasthan High Court has not been accepted in the other High Courts and it has been
held in a very large number of cases that the words ‘case decided’ and the phrase “in
which no appeal lies”, refer not only to the final decision but are wide enough to
include certain interlocutory orders involving jurisdiction and from which no appeal lies
under the Code or otherwise. The words “record of any case … decided” in this context
refer to the record of the proceedings leading up to a decision in which there is an
assumption of unwarranted jurisdiction or a denial of an existing one or a material
irregularity or illegality in the exercise of jurisdiction. Where, however, an appeal lies
from the final determination to itself or to another court, the High Court in the exercise
of its discretion may decline to interfere at the interlocutory stage unless interference
at the earlier stage tends to prevent irreparable injury or is otherwise manifestly just
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and expedient. Since decisions in most cases tried by the Subordinate Courts are
subject to one or more appeals and one such appeal is to the High Court, and where
there is no appeal there are special provisions giving even wider powers of interference
to the High Court by way of revision than those under Section 115, the interpretation
put by the Rajasthan High Court on the section of the Code would make the power
available in a remarkably small number of cases. This general power as shown above
was intended to be used otherwise and the word ‘case’ does not mean a concluded
suit or proceeding but each decision which terminates a part of the controversy
involving a matter of jurisdiction. Where no question of jurisdiction is involved the
Court's decision cannot be impugned under Section 115 for it has been said repeatedly
a Court has jurisdiction to decide wrongly as well as rightly.
36. In my opinion, the construction generally accepted in the High Courts is more
in keeping with the letter and spirit of the section considered as a whole than the view
accepted in the two cited cases. As I pointed out earlier, the section confers a power
analogous to the power to issue a writ Certiorari but only with a view to keeping
Subordinate Courts within the bounds of their jurisdiction. This power is exercisable in
respect of all orders involving jurisdiction in which no appeal lies to the High Court.
The present cases answer the description as the Orders of the Subordinate Judge were
erroneous in denying a jurisdiction and no appeal lay to the High Court against them.
Even otherwise, the trial Judge was in error in not dismissing the suits. His decision
that the suits were not maintainable and yet keeping them pending was itself an
exercise of jurisdiction with a material irregularity. If the trial Judge had dismissed the
suits and passed decrees there would undoubtedly have been appeals and no revision
would have lain. But the order actually passed by him was not a decree or even an
order made appealable by Section 104 of the Code. Involving as it did a clear question
of jurisdiction it was revisable and the High Court was within its rights in correcting it
by the exercise of its powers under Section 115 of the Code.
37. The appeals must therefore fail and I agree with the order proposed by my
learned brother Shah, J.
———
* Appeals by Special Leave from the Judgment and Order dated 26th October, 1962 of the Punjab High Court
(Circuit Bench) at Delhi in Civil Revisions Nos. 525 and 526-D of 1960.
1
LR 44 IA 261
2 LR 70 IA 129

3 ILR 43 All 564 FB

4 ILR 1953 Raj 483 FB
5 ILR 1953 Raj 608
6
ILR 1953 Raj 483 FB
7 ILR 1953 Raj 608
8
(1922) 2 AC 128 156

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