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Supreme Court of India

Major S. S. Khanna vs Brig. F.J. Dillon on 14 August, 1963

Held :The High Court was right in setting aside the order

passed by the trial Judge and in holding that without

investigation as to the respective claims made by the

parties by their pleadings on the matters in dispute, the

suits could not be held as not maintainable. The decision

of the trial Judge affected the rights and obligations of

the parties directly. It was the decision on an issue

relating to the jurisdiction of the court to entertain the

suit filed by the respondent. The decision attracted cl.

(c) of s. 115 of the Code of Civil Procedure.

Per Sarkar and Shah, JJ. The expression "case" is a word of

comprehensive import. It includes civil proceedings other

than suits and is not restricted by anything contained in s.

115 to the entirety of the proceedings in a civil court. To

interpret the expression "case"as an entire proceeding

only and not a part of the proceedingwould be to impose

an unwarranted restriction on the exerciseof powers of

superintendence and may result in certain cases in denying

relief to the aggrieved litigant where it is most needed and

may result in the 'perpetration of gross injustice.

The High Court is not obliged to exercise its jurisdiction

when a case is decided by a subordinate court and the

conditions in cls. (a), (b) or (c) of s. 115 are satisfied.

Exercise of the jurisdiction is discretionary and the High

Court is not bound to interfere merely because the

conditions are satisfied. The interlocutory character of

the order, existence of another remedy to the aggrieved

party by way of appeal from the ultimate order or decree in

the proceeding or by a suit, and the general equities 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.

Revisional jurisdiction of the high Court may be exercised

irrespective of the question whether ;an appeal lies thereto

from the ultimate decree or order passed in the suit or not.

The expression "in which no appeal lies thereto" does not

mean that it excludes the exercise of the revisional

jurisdiction when an appeal may be competent to the High

Court 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

against the adjudication, but where the decision 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.

Under Or. 14, r. 2, where issues both of law and fact arise

in the same suit and the court is of the opinion that the

case ,or part thereof could 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 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 of Civil Procedure

confers no jurisdiction upon the court to try a suit on

mixed issues of law and fact as preliminary issues.

Normally, all issues in the suit should be tried by the

Court; not to do so ,especially when the decision on issues

even of law depends upon the decision of issues of fact,

would result in a lop-sided trial of the suit.

Per, Hidayatullah, J.-A decision of the subordinate Court is

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 expression "in which no

appeal lies" does not speak' of the Appeal "under the Code".

The expression 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.

The decision of the trial Judge was erroneous because he

denied himself the jurisdiction of holding that the suits were

not maintainable. The fact that he did not dismiss the

suits and did not draw up decrees for that purpose, was

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

as the decision had put an end to them.

The word "case" in s. 115 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 s. 115 because the court has

jurisdiction to decide wrongly as well as rightly.




Supreme Court of India

D.L.F. Housing & Construction ... vs Sarup Singh And Others on 12 September, 1969

The position thus seems to. be firmly established that while exercising the jurisdiction under s. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to. errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under s. 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under s. 115 of the Code when there. was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question.