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TMI Blog1963 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 outstanding 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 outstanding of the dissolved partnership were collected by Dillon and were deposited in the joint account of Dillon and Khanna. Dillon filed a suit in the Court of the Subordinate judge at Delhi for a decree for ₹ 54,250.00 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 ₹ 46,000.00 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Bala- krishna Udayar v. Vasudeva Aiyar L.R. 44 I.A. 261 ; 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 amount 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay Regulation 11 of 1827 of Ch. 1 s. 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 jurisdic ation 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 s. 35 of Act XXIII of 1861 the Sudder Courts were invested with the power 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 set tin' up of the High Courts in the Presidency 'towns of:, Calcutta, Madras and Bombay power of superintendence was conferred by s. 15 by the Charter Act (24 & 25 Vict. Ch. 104) upon the High Courts over subordinate Courts. By s. 622 of the Code of 1877 revisional jurisdiction of. the High Court was defined, and made exercisable in the conditions set out in cls. (a) & (b) of the present s. 115. Clause (c) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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. 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 cls. (a), (b) or (c) are satisfied. Exercise of the jurisdiction is discre- tionary : 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 of decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s revisional jurisdiction, but where' the decision, itself it not appealable to the High Court directly or indirectly, exer- cise of the revisional jurisdiction by the High Court would not be deemed excluded. The judgment of the Rajasthan High Court in Purohit Swarupnain v. Gopinath and another I.L.R. [1953] Raj. 483 F.B on which strong reliance was placed by the appellant does not, in our judgment, correctly interpret s. 115 of the Code. In that case the Court relying upon an earlier judgment of a Division Bench Pyarchand and others v. Dungar Singh I.L.R. [1953] Raj. 608 held that "where it is open to a party to raise a ground of appeal under s. 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 s. 115 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 "from" in s. 115 Code of Civil Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cl. (c) of s. 115 Code of Civil Procedure, for the Court in deciding that "the suit was not maintainable as alleged in paragraphs 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 amount of the loan, and failure to repay the loan. By his written statement Khanna had pleaded in paragraph 15 that Dillon had not advanced any money to him and that Dillon had not claimed the amount for himself and there- fore he was not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestions 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. 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. The appeal therefore fails and is dismissed with costs. There will be one hearing fee for this appeal and also C.A. 321 of 1963. HIDAYATULLAH J.-I have had the advantage of pursuing 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 been stated in detail by my learned brother and I need not repeat them. For the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 s. 115 could not be invoked. This has led to a discussion as to the jurisdiction of the High Court created by s. 115 of the Code of Civil Procedure. The Trial Judge concluded that the suits were for con- tribution between partners of a dissolved firm which was in the process of winding up and that not being suits 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, in so far 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, Dillon was required to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;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 sub- ordinate 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. The decision in this case was clearly one which put an end to the suits and the fact that the Subordinate Judge still kept the suits pending before himself for 'further pro- ceedings' 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. In so far as the parties were concerned the suits were no longer live suits since the decision, such as it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rightly. 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 inthe two cited cases. As I pointed out earlier, the sectionconfers a power analogous to the power to issue a writof Certiorari' but only with a view to keeping SubordinateCourts within the bounds of their jurisdiction. This poweris 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 nor even an order made appealable by s. 104 of the Code. Involving as it did a clear q ..... 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