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TMI Blog1947 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... tement. 3. Civil Suit No. 87 of 1933, as originally instituted, was for possession of a field on the strength of a deed dated 24th April 1923 which, according to the plaintiffs, was a deed of sale with a condition for re-conveyance, but according to the defendants was a mortgage by conditional sale. The plaintiffs succeeded in the trial Court and in the first and a second appeal and a decree for possession was passed in their favour. In the Letters Patent appeal by the defendants, a Divisional Bench of this Court held that the deed dated 24th April 1923 on which the suit was based was a mortgage with a condition of foreclosure and the plaintiffs' remedy was not to sue for possession as purchasers but to enforce and to foreclose the mortgage. The plaintiffs were permitted by the appellate Court to amend the plaint so as to convert it into a plaint for the enforcement of the mortgage. The defendants were also given liberty to amend their written statement, if desired, and to contest such new matter as might be introduced by the plaintiffs by way of amendment of the plaint but not otherwise. 4. The defendants' application for amendment of the written statement was oppose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., by refusing to interfere with the order of the lower Court. Though the words used are not quite unambiguous, I understand Bose J.'s view to be that the High Court has no jurisdiction to entertain revisions against interlocutory orders, i.e., against orders not disposing of the suit one way or the other but such orders as are passed from time to time in a pending suit deciding matters necessary for the further progress and the final disposal of a suit and that the High Court should never interfere with such orders of the subordinate Courts, even assuming that it has power in the exercise of its revisional jurisdiction to interfere. 9. The material points which need consideration in this reference are, in my opinion, as follows: (i) Whether the High Court has jurisdiction to entertain revisions against interlocutory orders particularly the orders mentioned in question (2) and (ii) If the High Court has jurisdiction, then revision being a matter of discretion, can the High Court lay down and should it lay down a positive rule that it should always exercise its jurisdiction in refusing to interfere in such revisions? I have not been able to find any principle on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for the exercise of jurisdiction to entertain revisions there is in the present case no dispute regarding two conditions, viz. that the order sought to be revised is passed by a Court subordinate to High Court and that no appeal from that order lies to the High Court. The question is whether the third condition on which the jurisdiction depends, namely whether it is a 'case decided' is satisfied. 13. For a long time the exact meaning and scope of the word 'case' was a subject of keen difference of opinion between different High Courts in India. The word 'case' is not defined in the Civil Procedure Code or in the General Clauses Act or in any other Act. The dictionary meaning of the word is the state of facts juridically considered. It is not clear whether it means the state of facts of the whole case or a branch of a case, and whether the word 'case' is synonymous in its scope with the word 'suit' or it is wider. This gave rise to two interpretations of the word 'case'. According to one interpretation which was favoured by a group of High Courts, the word was wide enough to include not only the order finally disposing of the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lving the question of jurisdiction or inflicting irreparable injury on the party. 19. In K.C. Mujumdar v. Suraj Singh A.I.R. 1941 Nag. 205 Bose, J. interfered in revision in a case where the party on whom interrogatories were served filed a reply but the affidavit was sworn to not by the party personally but by his agent and therefore the lower Court asked that party to file answers again in a proper form. 20. The other group of High Courts which at a time favoured the narrow View and held that no revision could be entertained against interlocutory orders consisted of the Allahabad, Lahore and Lucknow High Courts. Even these Courts have however changed their views and are now in line with other High Courts in adopting liberal interpretation of the word 'case.' So far as the Allahabad High Court is concerned this change is apparent from the decision in Ram Sarup v. Gaya Prasad AIR1925All610 . 21. In Jagdish Saran v. Bhagwat Saran AIR1940All448 the Allahabad High Court held that an order refusing an amendment of the plaint is a case decided within the meaning of Section 115, Civil P.C., and a revision lies against it . 22. In Atma Ram v. Beni Prasad it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will interfere with every order against which a revision is entertainable. The interference will depend firstly upon whether the requirements of Clauses (a), (b) and (c) of Section 115 Civil P.C., are satisfied and secondly on the Court's regarding it a proper case where the discretionary power of revision should be exercised. 26. It was pointed out by Woodrooffe, J. in Sheo Prosad Bungshidhr v. Ramchunder A.I.R. 1914 Cal. 388 that Section 115 could only be called in aid when the failure of justice, if any, has been clone due to one or other fault of procedure mentioned in Clauses (a), (b), and (c) of Section 115, Civil P.C. The High Court would not exercise its revisional jurisdiction only because the subordinate Court has gone wrong on facts or on law. Their Lordships of the Privy Council very aptly pointed out in Amir Hasan Khan v. Sheo Baksh Singh (85) 11 Cal. 6 that when a Court decides a suit with jurisdiction that decision can not, merely on account of the fact that it was wrong, be said to be without jurisdiction as a Court acting with jurisdiction has jurisdiction to decide rightly or wrongly. 27. In Balakrishna Udayar v. Vasudeo Ayyar A.I.R. 1917 P.C. 71 their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not go into the application under Order 21 Rule 97. Civil P.C. it amounted either to a failure to exercise jurisdiction or to the exercising of the jurisdiction with material irregularity. 34. In Mahomed Ihtisham Ali v. Lachhman Prasad it was held that where a Judge proceeds with a suit as a result of misinterpretation' of law, for example, Section 10, Civil P.C., he acts with material irregularity. 35. A wrong interpretation of the provision of law renders the orders of the subordinate Court open to revision as held in Mt. Sukhia v. Kripa Ram AIR1945All348 . 36. In Kamani Devi v. Kameshwar Singh A.I.R. 1946 Pat. 316 it was held that where the Court misinterprets the statutory provision and commits a mistake with regard to the ambit of its jurisdiction its order is open to revision. 37. In Bagya Lakahmi v. Bapu A.I.R. 1946 Mad. 90 it was held that an abuse of the powers of the executing Court is a ground for revision. 38. In Ram Sunder v. Parasram A.I.R. 1946 Oudh 88 it was held that the High Court should interfere if non-interference would result in multiplicity of suits, delay and unnecessary expenses to the parties. Many more cases can be collected, and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt either enlarges its own jurisdiction or narrows it down. 41. In Seetarammayya v. Subrahmanyam A.I.R. 1935 Mad. 547 the executing Court passed an order in a claim petition under Order 21, Rule 58, Civil P.C. It was dismissed subject to note that whatever interest the defendant has in the lands be put to auction and the petitioner's rights are not prejudiced thereby. This order was misinterpreted by the Court and it consequently declined to go into the merits of the case when an application was filed by the claimant for enquiry into his claim that he had permanent occupancy rights. It was held that the order of the Court was liable to be revised. In the present case, the jurisdiction of the trial Court in the matter of allowing or refusing amendment of the defendants' written statement was limited by the remand order and the interpretation of that order was therefore linked up with the question of jurisdiction. 42. It is true that under Order 6, Rule 17, Civil P.C., the power to allow or refuse amendment is in the discretion of the trial Court. It has, however, to exercise that discretion according to judicial principles which are well recognised and according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other, it would be guilty of not exercising jurisdiction vested in it by law requiring it at the first hearing of the suit to record issues on which the right decision of the case depends. 45. If, on the other hand, it framed issues which do not arise out of the material propositions of law or fact affirmed by one party and denied by the other, it would be acting either in excess of its jurisdiction or with material irregularity, and in either case the-order of the subordinate Court may be open to revision. In fact, by refusing to frame an issue which actually does arise in the case, the Court shuts out a trial of a part of his case. In such a case it would be necessary for the High Court to interfere in revision and to set the matter right so as to avoid waste of time and costs: Ram Sunder v. Parasram A.I.R. 1946 Oudh 88. 46. I am however in agreement with Bose, J. that the revisional jurisdiction of the High Court under Section 115, Civil P.C., should not be so liberally exercised as to convert a revision into an appeal and further that every order of the sub-ordinate Court should not be interfered with only because it was wrong either in law or on facts. I also agree t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich, as Bose J. has put it, the fact which the Court is determining is not an issue on the merits but an issue of jurisdiction, in which case the finding may be revisable, When a case has been remanded to the lower Court for decision of a particular issue I do not think that the Court has jurisdiction to decide any other issue, nor has it jurisdiction to misinterpret the order of remand so as to get jurisdiction to decide some other issue, and therefore there may be cases in which it is permissible to interfere under Clause (a). So also it may be permissible to interfere under Clause (b) if the Court refuses to decide the issue sent down for trial. These difficulties however could be avoided if remand orders were more clearly worded. 52. In most cases, however, there is no question of exercising a jurisdiction that is not vested in the Court or refusing to exercise a jurisdiction that is vested, and the question turns on whether the Court has acted illegally or with material irregularity. I agree with the dictum of Sir Lawrence Jenkins C.J. in Sheo Prosad Bungshidhr 0 Ramchunder A.I.R. 1914 Cal. 388 that there must be an error of procedure and not merely of law to justify inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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