Amberson Marten, Kt., C.J.
1. In this suit the real point in dispute between the parties is as to the true effect of the Meher sale-deed of July 20, 1918, Exhibit 21. The suit is brought by the plaintiff against her father-in-law, her mother-in-law and her husband, to recover possession of the property comprised in the sale-deed. The defence is that, by a custom of the Ghanchi community of Godhra to which the parties belong, this Meher sale-deed, although some of its terms may purport to amount to an absolute conveyance, in fact, is only held a security for the dower payable to the plaintiff in two events, neither of which has happened, viz., in the event of her being divorced, and in the event of the death of her husband.
2. There were, accordingly, two preliminary issues raised : '(1) What is the market value of the property in question ?' That has been found by the learned Judge to be Rs. 10,000, whereas the amount of the dower as stated in Exhibit 20 was Rs. 4,500. Then the second preliminary issue with which we are concerned is: 'Can the defendants be allowed to prove by oral evidence any separate agreement or understanding for the purpose of contradicting, varying, adding to or subtracting from the terms of the sale-deed ?' That issue, whatever objection may be taken to its precise terms, was intended to raise the defence I have already alluded to, viz., that the document must be taken as a security only for a contingent event which has not happened. The learned Judge decided that the evidence which was tendered in support of this defence was inadmissible under the Indian Evidence Act, and, accordingly, he decided issue No. 2 in the negative.
3. The defendants now apply to us in revision, and a preliminary objection is raised that no such revision lies having regard to Section 115 (c) of the Civil Procedure Code. It will be seen that in effect the defendants are asking us to interfere half way through the suit with an interlocutory order, and one which merely decides whether certain evidence is admissible or inadmissible. The effect of Section 115 has been considered by their Lordships of the Privy Council in two cases in particular, one in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1884) L.R. 11 IndAp 237. and another in Balakrishna Udayar v. Vasudeva Aiyar . Taking the latter case as being the latest, the judgment of their Lordships as delivered by Lord Atkinson sets out the matter perfectly clearly, viz. (p. 267)-
As to the preliminary objection. Section 115 of the Civil Procedure Code enables the High Court, in a case in which no appeal lies, to call for the record of any case if the Court by which the case was decided appears to have acted in the exercise of a jurisdiction not vested in it by law, or to have failed to have exercised a jurisdiction vested in it, or to have exercised its jurisdiction illegally or with material irregularity, and further enables it to pass such an order in the case as the Court may think fit. It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.
4. The question then is whether this exclusion of evidence by the learned Judge was a conclusion of law in which the question of jurisdiction is not involved. In our opinion in rejecting that evidence no question of jurisdiction was involved. It is not, I think, a case similar to that where a plaint requires amendment by adding proper parties, or else the whole suit will result in injustice as in the case of Secretary of State for India v. Narsibhai Dadabhai. I.L.R. (1923) 48 Bom. 43 Nor is it a case like that of Sm. Sarajubala Debi v. Mohini Mohan Ghosh 28 C.W.N. 991 where the Judge in the lower Court had improperly raised two issues which, in the opinion of the higher Court, were quite unnecessary, and which would, if they were fought out, result in the expenditure of over a lac of rupees in costs, whereas the amount in dispute in the suit was only some Rs. 1,900.
5. No case has been cited to us by the pleader for the applicants to show that the Court has exercised its powers under Section 115 in a case merely where the evidence has been rejected. Accordingly, we do not think we ought to entertain the present application. But we decide nothing as to whether the conclusion which the learned Judge arrived at was right or wrong. We appreciate how it came about that the applicants came to us in revision. But we do not think it would be right to grant their application. After all, it is conceded that if the view of the lower Court is correct, there would be substantially no further defence in the suit, and, accordingly, a decree would have been passed against the defendant as a matter of course, after which they could come to this Court in appeal in the ordinary way. So, really, no time or other saving has been effected by adopting the present unusual procedure except that, if successful, it might enable the interesting point raised by issue No. 2 to be determined by the appellate Court at a lower Court fee than would be the case in an ordinary appeal. But that affords no reason why we should exercise a jurisdiction under Section 115 when in fact we have not got it.
6. I would, accordingly, dismiss the application with costs.
7. I agree and would just like to add a few words. The Privy Council cases referred to deal generally with Section 115 of the Civil Procedure Code. But our attention has also been drawn to the case of Bai Rami v. Jaga Dullabh (1919) 22 Bom. L.R. 801 which deals with the particular point under consideration now, viz., Section 115 as dealing with an interlocutory order. The judgments of the learned Judges, Sir Norman Macleod and Mr. Justice Heaton, in that case are rather strongly worded. Sir Norman observes (p. 802) :-
Under Section 115 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. We have, therefore, no power to call for the record of any case which is under trial by a Court subordinate to the High Court. It seems necessary to point out that an application like this made during the course of a trial asking the Court to exercise its power under Section 115 in the matter of interlocutory orders cannot be countenanced.
8. And Mr. Justice Heaton makes similar observations. These remarks may not apply to all orders in a case under trial. But they go to show that in regard to such orders the Court will ordinarily refuse to take action under Section 115 of the Civil Procedure Code.