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1955 SCC OnLine All 4 : 1955 All LJ 167 (FB) : AIR 1955 All 309
(FB) : 1955 AWR 229 (FB)

Allahabad High Court

Full Bench

(Before Malik, C.J. and Agarwala, V. Bkargava, Mukerji, Chaturvedi,

Asthana and Mehrotra, JJ.)

Ramrichpal Singh … Defendant-Applicant;

Versus

Dayanand Sarup minor through Bhagwat Sarup … Plaintiff-Opp. Party.

Civ. Rev. No. 461 of 1948 (connected with Civ. Rev. No. 462 of 1948)

Decided on January 6, 1955

Page: 168

The Judgment of the Court was delivered by

MALIK, C.J.:— These two cases came up before a Bench for hearing in
the year 1949 and on the 10th of May, 1949, they were referred to a
Full Bench as there was a conflict of opinion between the Allhabad
High Court and the Oudh Chief Court on the point whether a revision
under Sect. 115 of the Civil Procedure Code (Act V of 1908) was enter-
tainable by the High Court in a case where a judge had refused to
grant an application under Sec. 10 of the Code. The Allahabad High
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Court had held that no revision lay to this Court against the order as it
was not a case decided, while the Oudh Chief Court had taken a
contrary view that it was a case decided and a revision was
entertainable. After the amalgamation of the two Courts in 1948 it was
considered proper that there should remain no conflict and the case
was, therefore, referred to a Full Bench for decision. When, however,
the case was put up before a Bench of three Judges on the 22nd of
October, 1951, they referred it to a larger Bench aid on the 24th of
October, 1951, when the case came up before a Bench of five Judges
they referred it to a Bench of seven Judges. The Full Bench of three
Judges or of five Judges did not give any reason why it was necessary
to have the point decided by a Bench of seven Judges. It was,
probably, due to the fact that there was a decision by a Bench of five
1
Judges in Buddhu Lal v. Mewa Ram which the learned Judges thought
might have to be reconsidered.

2. The points referred to the Full Bench are:—

(1) Whether an order under Sec. 10 of the Code of Civil Procedure is

a case decided? and

(2) Whether it would make any difference if the learned judge had
framed an issue on the point and decided the point as a point in
the case?

3. The facts of the case briefly are that a suit was filed for recovery of
arrears of rent of a house on the ground that the defendant was a
tenant. The defendant filed a written statement in which among other
pleas he took the plea that there was a previously instituted suit
pending in which the matters in issue in this case were directly and
substantially in issue and the suit should therefore remain stayed
under Sec. 10 of the Civil Procedure Code (Act V of 1908). On the
pleas raised in the case a number of issues were framed, issue No. 6
being as follows:—
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“Is suit liable to be stayed under Sec. 10, C.P.C.?”

4. The court held that the mere fact that appeals were pending against
decrees in suits for rent for certain other periods prior to the period
now in dispute did not justify the grant of stay under Sec. 10 of the
Code and rejected the application. Against that order dated the 10th of
July, 1948, this revision was filed. There were two suits filed in the
trial court for two different periods : suit No. 1 of 1948 and suit No. 65
of 1947. There were two separate orders in the two suits and there are
two revisions before us.

2
5. In Saltanat Jahan Begam v. Sundar Lal in a revision against an
order dismissing an application under Sec. 10 of the Code Banerji, J.
held that it was an interlocutory order and was not a case decided. He
purported to follow the decision of this Court in Muhammad Ayub v.

Muhammad Mahmud3 which was overruled by a Full Bench in Ramzan

4
Ali v. Satul Bibi . The next case in which the question arose is Bal

Krishna v. Ram Kishun5. Both the learned Judges (Mukerji and Niamat-
ullah, JJ.) were of the opinion that an order rejecting an application to
stay under Sec. 10 of the Code was not a case decided. Mr. Justice
Mukerji was of the opinion that it was a matter merely of procedure
which had nothing to do with the merits of the case and was therefore
not a case decided. Mr. Justice Niamat-ullah contented himself by
saying that in the circumstances of that case where the court had not
decided whether Sec. 10 of the Code applied or not but had merely
directed the case to proceed it could not be said to be a case decided.
6
In Madan Mohan v. Kuar Kamla Narain Dube Sulaiman and King, JJ.
dismissed a revision application were the facts were exactly similar to
the facts of the case before us. The plea of Sec. 10 was raised in the
written statement and an issue was framed and the issue was decided.
The learned Chief Justice said:

“The plea that the court has no jurisdiction to entertain the suit is
similar to a plea
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Page: 169

that it has at least temporarily no jurisdiction to entertain it because of

the pendency of another suit. The decision of the court below on the
point that it has jurisdiction amounts to a mere finding on a question
of law which was the subject-matter of an issue and cannot be treated
as being in itself a case decided within the meaning of Sec. 115 of the
Civil Procedure Code.”

6. On the other hand, in Sitla Singh v. Sitla Bakhsh Singh7 Stuart and
Daniels, JJ. held that an order under Sec. 10 staying a suit amounted
to a decision that the court had under existing circumstances no
jurisdiction to proceed with the trial of the suit. It Was, if wrongly
passed, a refusal to exercise a jurisdiction vested in the court and was
open to revision under Sec. 115. They do not seem to have discussed
the question whether it was or was not a case decided. The same view
was taken by a Full Bench of the Oudh Chief Court in Sardar Sahdeo
8
Singh v. Sardarani Chanun Kuer . The two questions that were referred
to the Full Bench were as follows:—

(1) Is an order by which proceedings are resumed in a suit which

had been stayed under Sec. 10 of the Code of Civil Procedure, a
case decided, within the meaning of Sec. 115 of the Code of Civil
Procedure? and

(2) Is an order the effect of which is to refuse to exercise a

jurisdiction vested in the court, under Sec. 10 of the Code of Civil
Procedure, open to revision under Sec. 115 of the Code of Civil
Procedure?

7. The learned Judges differed from the view expressed by the

Allahabad High Court and held that it was a decided case. Wazir
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Hasan, J. said that:

“I am content to Consider the matter from the standpoint that the

rrleaning to be given to the word “case” in Sec 115 must depend on
the particular nature of the proceedings.”

8. Misra, J. held that orders passed under Sec. 10 of the Code of Civil
Procedure stood on quite a different footing from those orders which
were generally considered as interlocutory orders. The last case of the
9
Chief Court is Raisuddin v. Basti Sugar Mills, Ltd. , where it was held
that an order under Sec. 10 of the Civil Procedure Code staying a suit
was open to revision under Sec. 115 as it was a case decided. They
followed the previous Full Bench and no further reasons were given.

9. The only case cited from Madras is Ramchandram Pillai v. Neelambal

10
Achi . In that case an order refusing to stay proceedings under Sec.
10 of the Code was held to be an interlocutory order by Phillips, J. and
the Allahabad view was followed. These are all the cases on Sec. 10 of
the Code to which reference has been made.

10. Sec. 115 of the Code is 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.”

11. The High Court can, therefore, entertain a revision only if:—

(1) a case has been decided;

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(2) the decision is by a court subordinate to the High Court;

(3) no appeal against the decision lies to the High Court;

and (4) 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 the exercise of its jurisdiction illegally or with

material irregularity.

12. The power is, however, discretionary and will be exercised only in
the interest, of justice.

13. So far as the grounds (a) and (b) are concerned, there never was
much difficulty. They provide that the subordinate court should have
either exercised the jurisdiction that it did not possess or it should
have failed to exercise the jurisdiction that it did possess, i.e., failure
to exercise jurisdiction or wrongful assumption of jurisdiction.
Interpretation of clause (c), however, gave rise to considerable

Page: 170

difference of opinion. The Privy Council in Rajah Amir Hasaen Khan v.

11 12
Sheo Baksh Singh and Balakrishna Udayar v. Vasudeva Aiyar
pointed out that the words had “acted in the exercise of its jurisdiction
illegally or with material irregularity” related also to the question of
jurisdiction and if the court had jurisdiction to decide the matter the
decision could not be challenged under Sec. 115 merely on the ground
that the court had made an error on a question of law or fact. The
latest decision of the Supreme Court on the scope of Sec. 115 has now
made matters clearer. Their Lordships in Keshardeo Chamria v. Radha
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Kishen Chamria13 have held that the section can apply only to a case
of wrong exercise of jurisdiction. Their Lordships have referred with
approval to the referring order of Bose, J., in Narayan Sonaji v.
14
Sheshrao Vitboba wherein the learned Judge had said that the words
“illegally or with material irregularity” do not cover either errors of fact
or law. That they do not refer to the decision arrived at but to the
manner in which it is reached. That the errors contemplated relate to
material defects of procedure and not to errors of either law or fact
after the formalities which the law prescribes have been complied with.

14. There has been a lot of controversy as to what is “a case decided”.

We may in this connection briefly refer to the history of the section. In
the Code of Civil Procedure (Act 8 of 1859) there was no provision
giving any revisional power to the High Court. Act 23 of 1861 amended
that Code in certain respects and Sec. 35 of the Act provided that:

“The Sudder Court may call for the record of any case decided on
appeal by any Subordinate Court in which no further appeal shall.lie
to the Sudder Court, if such Subordinate Court shall appear in
hearing the appeal to have exercised a jurisdiction not vested in it
by law, and the Sudder Court may set aside the decision passed on
appeal in such case by the Subordinate Court, or may pass such
other order in the case as to such Sudder Count may seem right.”

15. Sec. 35 applied only to cases where one appeal was provided but
there was no right to file a second appeal. In cases where there was a
second appeal to the High Court the section did not apply. But in a
case where there was only one appeal to the Subordinate Court the
decision on appeal by the Subordinate Court was revisable by the High
Court. Revisions therefore, lay to the High Court only against the
decrees or orders passed on appeal by the lower appellate court where
there was no further right of appeal to the High Court.

16. Act 10 of 1877 replaced the Code of 1859 and Sec. 622 of the
Code provided that
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“The High Court may call for the record of any case in which no
appeal lies to the High Court, if the Court by which the case was
decided appears to have exercised a jurisdiction not vested in it by
law, or to have failed to exercise a jurisdiction so vested, and may
pass such order in the case as the High Court thinks fit.”

17. The same language was more or less repeated with the addition of
the words “or to have acted in the exercise of its jurisdiction illegally or
with material irregularity” in the Code of 1882 (Act 14 of 1882), Sec.
622 of which was as follows:

“The High Court may call for the record of any case in which no
appeal lies to the High Court, if the Court by which the case was
decided appears to have exercised a jurisdiction not vested in it by
law, or to have failed to exercise a jurisdiction so vested, or to have
acted in the exercise of its jurisdiction illegally or with material
irregularity, and may pass such order in the case as the High Court
thinks fit.”

18. The section was, however, redrafted in the Code of 1908 and it
now reads:

“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.”

19. The word ‘record of any case which has been decided’ have been
interpreted in a very large number of decisions of the various High
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Courts and the words have been differently interpreted

Page: 171

by different Judges. One interpretation which can no longer be

accepted was that though the word case is wider than a suit yet it can
only mean a suit or a similar proceeding which is started by an
application in the nature of a plaint for example, testamentary
proceedings, matrimonial proceedings, guardianship proceedings,
proceedings under the Company Law etc. It was held in some cases
that in a suit it was the suit which was itself a case and it was not
possible to envisage any other proceeding arising in that suit which
could be called a separate case. The other view was that whenever any
order was passed by a court deciding any matter in controversy
between the parties it was a case decided. The third view was that an
interlocutory order could not be a case decided and a ‘case’ when it is
a proceeding during the pendency of a suit, must be a proceeding
distinct and separable from the issues that properly arise for decision
in the case, and must raise a substantial question affecting the rights
of the parties. Besides the questions of varying degree of importance
that arise for decision during the pendency of a suit there might be
other questions before or after the decision of a suit of a controversial
nature. Decision of such questions may amount to decision of a case.

20. There are a large number of decisions under Sec. 115 which
cannot all be reconciled and it would serve no useful purpose to refer
to them.

21. I am not inclined to accept the view that in a suit no final decision
of any matter can ever amount to a case decided as the suit itself is a
case and only the decision of the suit can amount to a case decided.
Nor am I prepared to accept the view that every order passed deciding
any matter in controversy must be held to be a case decided.
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22. There may be certain proceedings previous to the institution of the

suit or subsequent to the decision of the suit; for example, application
for leave to sue in forma pauperis; application for review; application
for amendment of decree; application for restoration of a suit
dismissed for default; application for setting aside of an ex parte
decree, etc. All these proceedings are started by means of an
application and have to be disposed-of judicially by final orders passed
by the Court. These must all be cases decided. These proceedings are
all completely separable from the decision of the issues that arise for
decision in a case. Though in a way they relate to the adjudication of a
dispute between the parties to a suit, they can be treated as separate
proceedings and their decision can amount to a case decided and if the
other requirements of Sec. 115 are satisfied the High Court can
interfere is the exercise of its revisional jurisdiction.

23. Then there may be other matters which are not ancillary to the
decision of the case and are distinct and separable from it. Proceedings
which are distinct and separable, when they are disposed of by a final
order, which substantially affects the rights of the parties, may amount
to a case decided.

24. Then come matters of varying importance arising during the trial
of a suit. These are, to my mind, clearly divisible into three main
groups:

(1) Order which are appealable under Sec. 104 and Order 43, Rule 1
of the Code of Civil Procedure—they can be treated as cases
decided and revisions can foe entertained provided the orders are
not appealable to the High Court. These were the only orders that
were revisable under the Civil Procedure Code after its
amendment in the year 1861.

(2) Orders which are not appealable, but objection to which can foe
entertained at the time of the hearing of the appeal under Sec.
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105 of the Code on the ground that they affect ‘the decision of
the case’. The question whether these are revisalble orders or not
will depend upon the nature of the order and the decision of the
question whether Sec. 105 provides an adequate remedy. The
test for determining whether they amount to cases decided must
be the same as for the next group of orders.

(3) Besides these there are innumerable other orders that the court
may have to pass during the progress of a suit pending before it.
These may be sub-divided into two groups:

(i) orders which are entirely procedural or routine matters which

are not disposed of by final orders; and

(ii) final orders which decide substantial questions and affect the
rights of the parties.

25. Orders under 3(i) may foe changed by the Court at its discretion.
But orders under 3(ii) must be final decisions so far as the Court
passing them is concerned.

26. What orders will fall under group 3(i) or group 3(ii) is a matter on
which there will always be differing views as it is difficult, to draw the
line and the decision of the Court

Page: 172

in each case would depend upon the nature of the order and the rights
affected thereby.

27. As was pointed out by me in Ramzan Alt v. Mt. Satul Bibi4,

sometimes even an order of a mere routine or procedural nature may
seriously affect the rights of the parties. The fixing of a date may
sometimes substantially affect the rights of one party or another.
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Refusing to summon a witness for a particular date might again cause

substantial loss to a party if the witness cannot be available on any
other date. It is, however, not merely a question of loss caused that
has to be taken into consideration. Before the High Court can entertain
a Revision the order must amount to a decision of a case and an order
which a court can itself change at any time cannot be termed an order
which decides a case.

28. In my view the decision of certain proceedings prior to the

institution of a suit may amount to decision of a case. On that ground I

held in Ramzan Ali v. Satul Bibi5 that a revision would lie against an
order granting or rejecting a pauper application.

29. An application under Sec. 10 of the Civil Procedure Code has

nothing to do with the decision of the question in controversy between
the parties in a case. In that sense it cannot be said to foe ancillary to

the proceedings. In Madan Mhan's case6 Sulaiman, C.J., was of the

opinion that it is analogous to a plea raised as regards the jurisdiction
of the court, in an application under Sec. 10 the jurisdiction being
questioned for a limited period. I do not think that this analogy, with
great respect, is sound. In an application under Sec. 10 the defendant
admits that the court has jurisdiction to entertain the suit. All that he
prays for is that since the matters in issue are directly and
substantially in issue in a previously instituted suit the hearing of the
suit should remain stayed. The court continues to have seisin of the
case and ultimately it has to dispose it of according to law. Viewed
from this point of view, the decision of a question under Sec. 10,
where the court has to consider whether there is a previously
instituted suit or not and whether the matters in issue are directly and
substantially in issue in that other suit or not, are both questions
which have to be determined judicially and if the decision of the two
questions is in favour of the defendant, the court has to stay the suit
as the provisions of Sec. 10 appear to foe mandatory. It is, therefore,
to my mind, a case decided.
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30. Then remains the second question, whether the fact that a plea
was taken in the written statement and an issue was framed and that
issue was decided, makes any difference. To my mind, it would not.
Order 7, Rule 1 of the Code sets out the particulars which a plaint
should contain. Apart from the facts constituting the cause of action
and when it arose, the plaintiff has to show that the court has
jurisdiction. Order 8 of the Code deals with the contents of a written
statement. In the written statement the facts asserted have to be
denied and other facts may be pleaded by way of defence, set off or
counter-claim. Order 14 then deals with the framing and determination
of issues. Under Order 14, Rule 1, issues arise when a material for
proposition of fact or law is affirmed by one party and denied by the
other. Material propositions are those propositions of law or fact which
a plaintiff must allege in order to show his right to sue or a defendant
must allege in order to constitute his defence. To my mind a plea
under Sec. 10 of the Civil Procedure Code does not constitute a
defence to the suit and it should not, therefore, foe a matter in issue
between the parties, and the mere fact that the court has wrongly
framed an issue should make no difference. On that point I agree with
5
the observations of Mukerji, J. in Balakrishna's case already cited.

31. Where an issue arises out of the pleadings properly drafted, that
is, in accordance with the provisions of Order 7, Rule 1 and Order 8,
Rule 2, even if it has been decided as a preliminary issue under Order
14, Rule 2 of the Code, it cannot, to my mind, amount to a case
decided. When a case is before a court of law and a number of issues
have arisen for decision on the basis of which the court has to
adjudicate upon the rights of the parties the court cannot pass a
number of decrees a except that there may be a preliminary decree
and a final decree and the reasons given by it for the decree is its
judgment. If some of the issues have been determined under Order
14, Rule 2 of the Code earlier than others then the judgment must foe
deemed to have been written in two parts and it cannot be said that
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the part of a judgment is a final order from which a revision can lie to
this Court. This matter has been recently dealt with by me in Malkhan
15
v. Mahar Chand where I said that “If a court decides to determine
preliminary

Page: 173

issues of law under Order 14, Rule 2 and as a result of that decision
decides that it is not necessary to go into other questions, it has to
pass a decree, but if as a result of the decision of those issues the
other issues of fact have also to be determined, then the decision of
the preliminary issues is only a part of the judgment and so long as
the judgment has not been completed by the decision of the other
issues of fact or of law that had been left undetermined, a decree
cannot foe passed. The court on determination of the preliminary
issues, if it comes to the conclusion that the case has to proceed and
the other issues have to be decided, has not got to pass any formal
order incorporating the result of its decision. In the circumstances, it
cannot be said that it has decided a case or even a part of a case.” I
also referred in that case to my decision in B. Manmohan Lal v. B.
16
Rajkumar Lal that the words “conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in
the suit” in sub-sec. (2) of Sec. 2 of the Code “do not mean that there
can be separate decrees for each matter in controversy in the suit, nor
can the decision of each issue be said to amount to decision of a case
which has to be embodies in a separate decree or order”. The decision

of the Full Bench in Buddhu Lal v. Mewa Ram1, no doubt proceeded on

another ground but the decision can be supported on the ground
suggested by me.

32. In the case before us, however, as I have already pointed out the
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lower court erred in framing an issue on this point. It was not one of
the pleas that could be raised under Order 8, Rule 2 and no issue,
therefore, could be framed on the point. The mere fact that the learned
Judge wrongly decided to frame an issue should make no difference in
the result and his decision refusing to stay the suit will not cease to be
a case decided merely because it has been wrongly made a part of the
judgment. This portion was, to my mind, clearly separable and
amounted to a case decided. As I have already pointed out in the case
4
of Ramzan Ali v. Mt. Satul Bibi even though an order may amount to
the decision of a case it can be revisalble by this Court only if it
satisfies the provisions of Sec. 115 of the Code, that it is an order
passed without jurisdiction, or that the court has failed to exercise
jurisdiction or that it has acted with material irregularity in the
exercise of its jurisdiction.

33. I have not referred to the cases that were cited on the general
scope of Sec. 115 as they do not help in determining the question as
to what is a case decided. Two such cases cited at the Bar were (1)
N.S. Venkatagiri Ayyanagar v. The Hindu Religious Endowments Board,
17 18
Madras and (2) Joy Chand Lal Babu v. Kamlaksha Chaudhury .
These two cases also do not deal with the question what is a case
decided.

34. In my opinion, therefore, an order under Sec. 10 of the Civil

Procedure Code is a case decided and the fact that the learned Judge
had framed an issue on the point and decided the point as an issue in
the case would make no difference.

35. AGARWALA, J.:— The main point for decision in this case is
whether an order refusing to stay the hearing of a suit, made under
Sec. 10 of the Civil Procedure Code is a ‘case decided’ or not within the
meaning of Sec. 115, Civil Procedure Code. The word ‘case’ has not
been defined anywhere in the Civil Procedure Code. Its dictionary
meanings are numerous. As used as a term of law the dictionary gives
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the meaning of the word case as a suit or action at law; a cause’. A

‘case stated or agreed on’ is ‘a statement in writing of facts agreed on
and submitted to the court for decision of the legal points arising in
them’ (vide Webster's International Dictionary). The word ‘case’ occurs
in various provisions of the Civil Procedure Code and does not
necessarily convey the same meaning. For instance, in Sec. 13(b) the
word ‘case’ obviously refers to the entire proceeding in which a
judgment is delivered. In Sec. 33 the word ‘case’ has been used in the
sense of a suit because on the judgment being pronounced in the
case, a decree is to follow. In Sec. 90, the word ‘case’ is used in the
sense of a special case or a case stated for the opinion of the Court. In
Sec. 99, again, the word ‘case’ refers to the entire proceeding pending
in the court of appeal. The word ‘case’ in Sec. 113 obviously refers to a
statement of facts concerning any point in dispute between the parties
to a proceeding on which the opinion of the High Court is sought. In
Order 5, Rule 8, the word ‘case’ is used in a different sense. It is used

Page: 174

in the sense of the parties' statement of facts and law of the matter in
dispute. In Order 6, Rule 6 the word ‘case’ in the phrase, “for the case
of the plaintiff or defendant” is again used in the same sense as in
Order 5, Rule 8. In Order 7, Rule 18 again the word ‘case’ has been
used in the same sense.

36. Apart from the use of the word ‘case’ in Order 5, Rule 8, Order 6,
Rule 6, and Order 7, Rule 18, in which the expression is used as
referring to a particular party's allegations, and apart from its use in
Sec. 113, in the sense of a ‘case stated’ for the opinion of a Court, the
word ‘case’ is used in the sense of an entire proceeding initiated by
one party in which that party claims a substantial right on certain facts
and circumstances stated by him and seeks some relief as against
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another party. Thus the essential features of a ‘case’ are—

(1) a proceeding in which a claim is made by one party that he is

entitled to certain rights and the denial or admission of those
rights by the other party.

(2) the rights claimed are substantial, the grant or refusal of which
materially affects the interests of a party, and

(3) the proceeding is separate and complete by itself.

37. A proceeding in which the rights of the parties are not to be

conclusively decided, but is merely intended to be a step in the
determination of those rights cannot by itself be a case or a cause of
action at law. Thus if the proceeding is a suit in the sense in which
that word is used in the Civil Procedure Code, the suit itself and the
whole of it and not a part of it is normally a ‘case’. A suit is initiated by
a plaint which contains such allegations as are mentionetl in Order 7
and there is a written statement by way of defence to the suit and
such written statement contains matters which are mentioned in Order
8 of the Civil Procedure Code. The suit is disposed of by means of a
decree or a final order dealing with the allegations made in the plaint
and the defence raised in the written statement. A decision on any one
of the issues raised in the suit arising out of the defence in respect of
matters mentioned in Order 8, unless it disposes of a severable part of
the plaintiff's claim cannot in my judgment amount to a ‘case’.
Therefore normally a separate decision on one of the issues in the suit
is not to be treated as a case decided. These issues may relate to the
merits of the claim itself or may arise out of the various defences open
to the defendant which render the claim not maintainable. Thus in my
opinion the decision on a question of jurisdiction of the Court to hear
and determine a suit or that the suit is barred by limitation or res
judicata is not to be treated as a case decided, unless the suit itself is
disposed of by the decision. I may point out that I am not here dealing
with the question whether a decision on any of these points raises a
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question of jurisdiction which was the point considered in the two Privy
Council decisions N.S. Venkatagiri Ayangar v. The Hindu Religious
17
Endowments Board and Joy Cband Lal Babu v. Kamlaksha

Choudhry18. In my judgment the decision of the Full Bench in Buddhu

1
Lal v. Mewa Ram was, with respect, perfectly correct.

38. There may, however, be proceedings connected with a suit, though

not directly bearing upon the trial of the issues arising in the case.
These proceedings may foe classified as follows:—

(a) Antecedent to the suit,

(b) Subsequent to the decision of the suit, and

(c) During the pendency of the suit.

39. An application for leave to sue in forma pauperis is a proceeding

antecedent to the suit, because the suit comes into existence when the
application is granted and is treated as a plaint and the court fee is
paid thereon. An application for leave to sue a defendant falls under
the same category. The decision on such an application will be a case
decided. An application for the restoration of a case dismissed for
default of appearance of plaintiff, or an application for setting aside an
ex parte decree, and application for review are proceedings taken after
the suit has terminated. A decision on any one of such applications will
amount to a case decided. So also an execution proceeding taken after
the decision of the suit is by itself a separate ‘case’. An application for
appointment of a receiver or the issue of an injunction or the
attachment of property before judgment are matters that do not touch
upon the trial of the issues in a suit. These are, therefore, to be treated
as separate cases. An interlocutory order passed during the pendency
of a suit on an application which has a bearing upon the trial of the
issues of the case cannot be treated as the decision of a ‘case’ by
itself, because such a proceeding is part of a ‘case’ and not a complete
case by itself, unless
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Page: 175

it can be treated as such on the ground that the Civil Procedure Code
makes special provision for it being so treated, inasmuch as an appeal
is provided from it, under Sec. 104 read with Order 42 of the Civil
Procedure Code, or unless a severable part of the plaintiff's claim is
thereby disposed of. But orders on applications for adjournment of a
case or for summoning of witnesses or settling issues etc., are not
orders which dispose of a part of the case or any of the rights of the
parties in the suit, but are mere orders connected with the progress of
the trial of the suit and are matters of routine. These cannot be treated
as ‘cases’ by themselves.

40. An application under Sec. 10 of the Civil Procedure Code that the
hearing of the suit may be stayed is not one of those matters which
are mentioned in Order 8. The words “all matters which show the suit
not to be maintainable” in Order 8 clearly mean matters which show
that the suit is not maintainable at all and should be dismissed. An
application under Sec. 10 is not a matter which shows that the suit is
not maintainaible at all. By means of this application a proceeding is
initiated in which a claim is made by the defendant that he is entitled
to have the hearing of the suit stayed till the decision of a previously
instituted suit which is pending and to have the suit decided in
accordance with the decision of the previously instituted suit. The right
which the defendant claims by means of the application is very
material to him in that he will not be called upon to answer the
plaintiffs claim afresh, because that will be done in the previously
instituted suit and he will be in a position to say to the Court that the
decision of the suit must be in accordance with the previously
instituted suit. The proceeding is separate from the trial, of the
matters which are in controversy in the suit and is complete by itself.
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Therefore it fulfils all the requirements of a “case”.

41. If the plea under Sec. 10 of the Civil Procedure Code is contained
in the written statement, the court very often frames an issue upon it.
There is nothing improper in the Court adopting this course. But as
already observed an issue raised for a plea under Sec. 10 of the Civil
Procedure Code is not really a defence to the suit itself, and therefore
it is a matter which is separate from the trial of the suit and hence a
case by itself, even though an issue has been framed by the Court
relating to it.

42. I am in agreement with the opinion of Mukerji, J. in Bal Krishna v.

Ram Kishna5 that a matter under Sec. 10 of the Civil Procedure. Code
has nothing to do with the merits of the case, but I do not agree with
him when he says that it is not a “case” by itself.

43. I, therefore, agree with My Lord the Chief Justice in the answers
that should be given to the questions referred to this Full Bench.

44. V. BHARGAVA, J.:— I have had the benefit of reading the

judgment proposed to be delivered by My Lord the Chief Justice. While
agreeing with him, I would like to add a few words as I consider that
the questions, which arise in this revision, are very easily answered if
attention is paid to the language used by the legislature in various
provisions of law which determine the jurisdiction of courts and in
respect of which it may be necessary to find out whether the result of
the order of the court is that a case has been decided. In a number of
statutes, the provision made is in the form of a direction to the court
to proceed or to refrain from proceeding in a certain manner or to pass
an order that would terminate the proceedings before it. In this class
of cases, I may cite a few instances:

45. Sec. 242 of the U.P. Tenancy Act lays down:

“242. Subject to the provisions of Sec. 286 all suits and applications
of the nature specified in the Fourth Schedule shall be heard and
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determined by a revenue court, and no court other than a revenue

court, shall, except by way of appeal or revision as provided in this
Act, take cognizance of any such suit or application or of any suit or
application based on a cause of action in respect of which any relief
could be obtained by means of any such suit or application.”

46. Sec. 55 of the U.P. Panchayat Raj Act (U.P. Act No. XXXVI of 1947)
is as follows.—

“55. No court shall take cognizance of a case or suit which is

cognizable under the Act by a Panchayati Adalat unless an order has
been passed by a Sub-Divisional Magistrate or Mtinsif under Sec.
85.”

47. In both these instances, the legislature has given a direction to

the court not to take cognizance of the suit in certain circumstances. If
a question arises before a court and the court is called upon to decide
in any suit already instituted before it whether it can or cannot take
cognizance of the suit, the decision will be on a question which
determines the power

Page: 176

of the court to proceed with the suit and the validity of the subsequent
proceedings in the court will depend on the correctness of the decision
that the cognizance of the suit can be validly taken by the court. In
such circumstances, it must be held that the order of the court,
deciding the question of jurisdiction, amounts to a case decided.

48. Another example, that may be taken, is provided by Sec. 3 of the

Indian Limitation Act, which lays down:

“3. Subject to the provisions contained in Secs. 4 to 25 (inclusive)

every suit instituted, appeal preferred, and application made, after
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the period of limitation prescribed therefor by the first schedule

shall be dismissed, although limitation has not been set up as a
defence.”

49. By this provision of law, a mandatory direction is given to the

court to dismiss the suit, appeal or application if instituted, preferred
or made after the period of limitation prescribed therefor unless it is
saved by other provisions of the Act. Consequently, a decision by the
court on the question whether the suit, appeal or application is or is
not barred by limitation determines what action is to be taken by the
court in the proceedings and regulates the further conduct of the court
and, in such a case also, therefore, the order of the court will result in
the decision of a case. Similarly, Sec. 11 of the Code of Civil Procedure
directs that

“no Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in
a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in
a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and
finally decided by such Court.”

50. Here again, the Court is directed not to try a suit or an issue under
certain circumstances and any order by the court in this behalf
determines the question whether further proceedings to be taken in
the court are or are not within its jurisdiction. These two later
instances cited by me explain why their Lordships of the Privy Council

in Joy Chand Lal Babu v. Kamlaksha Chaudhury18 remarked:

“There have been a very large number of decisions of Indian High

Courts on Sec. 115, to many of which their Lordships have referred.
Some of such decisions prompt the observation chat High Courts
have not always appreciated that although error in a decision of a
Subordinate Court does not by itself involve that the subordinate
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Court has acted illegally or with material irregularity so as to justify

interference in revision under sub-sec. (c), nevertheless, if the
erroneous decision results in the subordinate Court exercising a
jurisdiction not vested in it by law, or failing to exercise a
jurisdiction so vested, a case for revision arises under sub-sec. (a)
or sub-sec. (b), and sub-sec. (c) can be ignored. The cases of Babu

Ram v. Munna Lal19 and Hari Bhikaji v. Naro Vishvanath20 may be

mentioned as cases in which a subordinate Court by its own
erroneous decision, (erroneous that is in the view of the High Court)
in the one case on a point of limitation and in the other on a
question of res judicata, invested itself with a jurisdiction which in
law it did not possess, and the High Court held, wrongly their
Lordships think, that it had no power to interfere in revision to
prevent such a result.”

51. So far I have mentioned instances where the provision of law is so

worded as to raise a question of jurisdiction at the very initial stage in
a suit or proceeding; but there can also be cases where, though a
court may be rightly seized of a suit or proceeding pending before it,
the legislature may have made a provision directing the manner in
which the Court is to proceed further with the suit or proceeding and
also laying down that, under certain circumstances, the court shall
stay its hands and refuse to continue further proceedings. An example
of a case of this nature is provided by Sec. 7(1)(a) of the U.P.
Encumbered Estates Act which, while giving the consequences of an
order passed by the Collector under Sec. 6 of the Act, lays down:

“7(1)(a). All proceedings pending at the date of the said order in

any civil or revenue court in the United Provinces in respect of any
public or private debt to which the landlord is subject, or with which
his immovable property is encumbered, except any appeal (review)
or revision against a decree or order, shall be stayed……….”

52. Very similar is the provision of Sec. 10 of the Code of Civil

Procedure which has come up for consideration in this case before us
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and which is as follows:—

Page: 177

“10. No Court shall proceed with the trial of any suit……….”

53. In these cases again, the court is directed to stay proceedings in

the suit which may have been properly instituted before it and
cognizance of which may have been taken by the court competently.
In these cases, however, the determination of the question by the
court whether the suit or proceeding should be stayed also determines
the validity of further proceedings by the court and, consequently, in
my opinion, a decision by the court on such a question must amount
to decision of a case.

54. The other class of cases is whether the legislature has so worded
the provisions of the statute that limitations are not placed on the
powers or functions of the court, nor is any direction intended, to be
conveyed to a court as to the manner in which it must exercise its
powers but limitations are placed on the right of a party to invoke the
jurisdiction of a court. The simplest example is provided by Secs. 15 to
20 of the Code of Civil Procedure. In all these sections, the language
regulates the institution of the suit and not the power of the court to
take cognizance of the suit or to deal with it. Institution of a suit is an
act of a party and these sections, therefore, regulate the act of that
party. Sec. 15 requires every suit to be instituted in the court of the
lowest grade competent to try it. Sec. 16 lays down the court in which
the suit is to be instituted when the forum is to be determined by the
situation of the property to which the suit relates. Sec. 17 permits,
under certain circumstances, institution of a suit in different courts.
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Sec. 19 makes special provision governing the institution of suits for

compensation for wrong done to a person or movable property and
Sec. 20 is the general section indicating in which court suits should
ordinarily be instituted. If a Suit is instituted in a wrong court the
question whether the court should proceed with the suit wilt be a
question of jurisdiction but the determination by the court will be a
determination of the right of a party to institute the suit and not a
determination of the power of the court to continue proceedings in the
suit. In such a case, therefore, the decision by the court must be held
to foe a decision relating to the right of a party which is a matter
intrinsic to the decision of the suit and not a collateral proceeding
which will determine the power of the court and its jurisdiction to
continue the proceedings. In my opinion, in such a case, the decision
by the court must foe held not to amount to a case decided out to be a
decision on an issue in the suit arising between the parties relating to
their rights. Very similar is the provision of Sec. 80 of the Code of Civil
Procedure which prohibits institution of suits against the State or
against a public officer until the expiration of two months next after
notice in writing has been given. Sec. 55 and 59 of the U.P. Court of
Wards Act, 1912, may also be referred to in this connection. Under
these sections, there is a bar on the right of a ward to sue or be sued
except by and in the name of the Collector in charge of his property or
such other person as has been appointed in this behalf. This is again a
limitation on the right of a party in respect of seeking remedy in court
by a suit and if a plea is taken that the suit is not maintainable as
being barred by any of these two sections, the determination of that
question will be a determination of rights of parties and will, these
fore, not amount to a case decided.

55. Secs. 192 of the U.P. District Boards Act, 1922, and 326 of the
U.P. Municipalities Act, 1916, also place limitation on institution of
suits against a district board or a municipal board. Questions
frequently arise whether a suit has or has not been properly instituted
in accordance with these provisions of law. Decisions on such
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questions must also foe held to be decisions relating to rights of

parties to seek the remedy in the court and, consequently, orders
passed in accordance with these sections or giving in effect to the
provisions of these sections will not amount to cases decided.

56. This division of decisions on question of jurisdiction into these two

classes also supports the view taken by My Lord the Chief Justice that
it is quite immaterial whether the decision is given after the court has
framed an issue on the point or does so without framing any issue. The
mere fact that a question is made the subject-matter of an issue
cannot affect the nature of the decision and cannot convert a matter
which is extrinsic and collateral into a matter intrinsic and ancillary to
the suit or proceeding. The decision of the Full Bench of this Court in

Buddhu Lal v. Mewa Ram1, in the view that I have taken above, is, if I
may say so with respect perfectly correct. That was a suit in which the
plaintiff claimed a sum of money as damages on account of an alleged
breach of contract in the court of the Munsif of Etawah. The defendants
took the plea that the suit was cognizable by the civil

Page: 178

court at Kanpur and the issue, that arose, was framed by the trial
court in the following words:—

“Is the suit cognizable by this or the Civil Courts of Cawnpore?”

57. The court then proceeded to try this issue separately from the rest
of the case on the evidence, both oral and documentary, and came to
the conclusion that it had jurisdiction and recorded a formal order to
that effect. In the revision before the High Court under Sec. 115 of the
Code of Civil Procedure, the question arose whether the order of the
Munsif had decided a case so as to determine whether a revision did or
did not he to the High Court. It was held that the decisions of the
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Munsif did not amount to the decision of a case and no revision lay.
The question as to the court, which had jurisdiction to try the suit,
depended on the interpretation of clause (c) of Sec. 20 of the Code of
Civil Procedure which, as I have mentioned above, regulates the right
of a plaintiff to institute a suit and does not place any limitation on the
power of a court to take cognizance of the suit the decision, therefore,
was a decision on the right of a plaintiff on a matter, which was in
issue before the court, as an intrinsic part of the suit instituted before
it, whether, rightly or wrongly. It could not, therefore, be held that a
case had been decided and that a revision could be entertained by the
High Court under Sec. 115 of the Code of Civil Procedure.

58. For the reasons mentioned by me above, I agree with My Lord the
Chief Justice and concur in the answers proposed by him to the
questions referred to the Full Bench.

59. MUKERJI, J.:— I agree with the Judgment of my Lord the Chief
Justice and have nothing further to add.

60. CHATURVEDI, J.:— I agree with the judgment of my Lord the Chief
Justice and have nothing further to add.

61. ASTHANA, J.:— I agree with the judgment of my Lord the Chief
Justice and have nothing further to add.

62. MEHROTRA, J.:— I agree with the judgment of my Lord the Chief
Justice and have nothing further to add.

63. BY THE COURT—Our answer to the question, therefore, is that an

order under Sec. 10 of the Code of Civil Procedure is a case decided
and the fact that the learned Judge had framed an issue on the point
and decided the point as an issue in the case would make no
difference. The case may now be laid before the Bench concerned.

———

1
I.L.R. MM All. 564.
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2
XVIII A.L.J. 431.

3
I.L.R. XXXII All. 623.

4
1948 A.L.J. 43 : A.I.R. All. 244.

5
1930 A.L.J.R. 235.

6
1934 A.L.J.R. 702.

7
A.I.R. 1919 Oudh 178.

8
I.L.R. III Luck. 650.

9
I.L.R. XVI Luck. 184.

10
A.I.R. 1923 Mad. 88.

11
11 I.A. 237.

12
L.R. XL Mad. 793.

13
1953 A.L.J. 101 : A.I.R. S.C. 23.

14
A.I.R. 1948 Nag. 258.

15
1954 A.L.J.R. 718.

16
1946 A.L.J. 3 : A.I.R. All. 89.

17
A.I.R. 1949 P.C. 156.

18
1949 A.L.J. 278 : A.I.R. P.C. 239.

19
I.L.R. 49 All. 454.

20
I.L.R. 9 Bom. 432.

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