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Mewa Ram Vs. Buddhu Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1921)ILR43All564
AppellantMewa Ram
RespondentBuddhu Lal and anr.
Excerpt:
civil procedure code (1908), section 115 - revision--jurisdiction of high court--order deciding issue of jurisdiction in favour of the plaintiff--'case.' - - the application came up for hearing before a bench of two learned judges of this court, before whom a preliminary objection was taken on behalf of the plaintiff that the order complained of being an interlocutory order, could not form a fit subject of revision by this court. in section 115 one of the conditions required is that no appeal lies from the order complained of. the position, therefore, was not precisely that contemplated by order xiv, rule 2, of the code of civil procedure; 5. i am quite satisfied, although something was said to the contrary in the course of arguments before us, that this plea would be open to the.....ryves and gokul prasad, jj.1. the reference to the full bench raises the question of the revisional powers of this court under section 115 of the code of civil procedure. it appears that the plaintiff resides and carries on business as a cloth merchant in etawah while the defendants are commission agents who live and carry on business at cawnpore. a dispute arose between them in connection with the orders given by the plaintiff for the purchase of cloth. the plaintiff thereupon instituted a suit in the court of the munsif of etawah for the recovery of a certain amount by way of damages. one of the pleas taken in defence was that the court at etawah had no jurisdiction to entertain the suit, which should have been filed in the civil court at cawnpore. the learned munsif, instead of trying.....
Judgment:

Ryves and Gokul Prasad, JJ.

1. The reference to the Full Bench raises the question of the revisional powers of this Court under Section 115 of the Code of Civil Procedure. It appears that the plaintiff resides and carries on business as a cloth merchant in Etawah while the defendants are commission agents who live and carry on business at Cawnpore. A dispute arose between them in connection with the orders given by the plaintiff for the purchase of cloth. The plaintiff thereupon instituted a suit in the Court of the Munsif of Etawah for the recovery of a certain amount by way of damages. One of the pleas taken in defence was that the Court at Etawah had no jurisdiction to entertain the suit, which should have been filed in the Civil Court at Cawnpore. The learned Munsif, instead of trying all the issues raised in the case, proceeded to receive evidence and hear arguments on the question of jurisdiction only. He disposed of the issue of jurisdiction, by his order, dated the 27th of August, 1919, against the defendants. A formal order was drawn up later on, embodying the decision of the issue. The defendants preferred an application in revision from the said order, seeking the interference of this Court under Section 115 of the Code of Civil Procedure. The application came up for hearing before a Bench of two learned Judges of this Court, before whom a preliminary objection was taken on behalf of the plaintiff that the order complained of being an interlocutory order, could not form a fit subject of revision by this Court. In view of conflict of opinion, not only among the different High Courts but in this Court also, the learned Judges have referred the question to a larger Bench. The referring order raises the general question of the competency of this Court to interfere with interlocutory orders, though the arguments have naturally been mostly directed to the particular matter in issue between the parties, namely, whether the defendants whose objection to the jurisdiction of the learned Munsif has been rejected can invoke the aid of this Court under Section 115 of the Code of Civil Procedure.

2. The other matter upon which the parties are at variance, namely, whether the decision of the Munsif on the plea of jurisdiction is justified by the materials on the record, has not been argued nor has it been referred to us. I, therefore, propose to confine myself to the consideration of the question whether the disposal of the plea of jurisdiction by a court subordinate to this Court, against the party that has taken the objection, can be revised by this Court under Section 115 of the Code of Civil Procedure, and I propose to deal with the question very shortly. It is contended on behalf of the opposite party, the plaintiff in the suit, that the present application is not maintainable because, first, no 'case' has been decided within the meaning of Section 115 of the Code of Civil Procedure and, secondly, another remedy is open to the applicant, namely in case of a decree against him he can at the time of appeal question the jurisdiction of the Munsif. It is argued that no case, but a part of the case, has been disposed of. The case is really still pending in the court of the Munsif. The defendants will have time enough to challenge the jurisdiction of the Munsif if a decree is passed against them and they choose to appeal from it. For the applicants the argument is that a case is not the same thing as a suit. The word 'case' has a much larger significance. The words 'cases which have been decided' are large enough to include any particular question in issue between the parties to suit, which question has been disposed of by a judicial order. As to another remedy being open to the applicants, that has nothing to do with the maintainability of the present application. In Section 115 one of the conditions Required is that no appeal lies from the order complained of. The section does not mean to say that no remedy at any time is open to the aggrieved party. Moreover, it would be small consolation to the applicants to succeed on the plea of jurisdiction on appeal from the decree, after undergoing a great deal of trouble and expense, and have the suit tried by the Cawnpore Courts over again. A large number of cases have been cited by each party in support of its view. I do not propose to mention or discuss them. The divergent views are based upon the meanings of the words 'case' and 'decided.' The case law may be summarized by giving the principles upon which the two conflicting opinions are based. Some of the learned Judges have held that the word 'case' is large enough to include an order that deals with an issue or question raised between the parties, and the word 'decided' any adjudication or judicial pronouncement on such a question or issue, irrespective of the fact whether such pronouncement determines the trial of the suit in the Court making such pronouncement or not. A contrary view is taken by some other learned Judges. I take the former view and have already been a party to a case where it was given effect to; vide Bhargava & Co. v. Jagannath, Bhagwan Das (1919) I.L.R. 41 All. 602. No definition of a 'case' or 'decided' is given in the Code of Civil Procedure. One of the legal imports of the word 'case' according to Wharton is 'Trial.' I also find that a distinguished Judge of this Court has defined the word 'case' in Chattarpal Singh v. Raja Ram (1885) I.L.R. 7 All. 661 (665). In that case the question arose whether the rejection of an application to sue in forma pauperis could be revised by this Court. During the course of the arguments the meaning of the word 'case' was also agitated. Mr. Justice Mahmood defined the word thus: 'The word 'case' as used in Section 622 of the Code of Civil Procedure is nowhere defined, but adopting the general rule of construing statutes I hold that the word should be understood in its broadest and most ordinary sense unless there were specific reasons for narrowing its meaning. I confess I am unware of any such reasons, and limiting the arguments to orders under Section 407 of the Code of Civil Procedure. I should say as a general rule that that which might constitute the subject of an appeal would necessarily be a case.' I adopt the definition of the word 'case' given by Mr. Justice Mahmood. It is true that he guarded himself by confining it to cases under Section 407 of the old Code, i.e., to cases of suitors who applied for leave to sue in forma pauperis, but I think that it is the best working definition and should be applied to other cases also It cannot be, and is not, denied that the order of the learned Munsif complained of might constitute the subject of an appeal. The effect of the order, therefore, is a case decided. The objection that another remedy is open to the applicants if a decree passed against them is not sustainable upon the language of Section 115 of the Code of Civil Procedure, which requires that no appeal lies from the decision objected to. I would, therefore, hold that the present application is entertainable by this Court.

Piggott, J.

3. The plaintiff in this case keeps a cloth shop at Etawah; the defendants arc dealers in cloth, carrying on business at Cawnpore. The plaintiff instituted a suit in the court of the Munsif of Etawah, claiming a sum of money as damages on account of an alleged breach of contract. The defendants filed a written statement in which they raised a number of pleas. One of these was to the effect that the court of the Munsif of Etawah had no jurisdiction to entertain the suit. The plaintiff on the other hand alleged that his cause of action had arisen, in part at any rate, within the local limits of that court, so that Clause (c) of Section 20 of the Code of Civil Procedure (Act No. V of 1908) gave him the option of resorting to this tribunal instead of to any court at Cawnpore, within the local limits of whose jurisdiction the defendants reside or carry on business. The issue thus raised was stated by the Munsif of Etawah in the following words: 'Is the suit cognizable by this or the Civil Courts of Cawnpore'? This was a mixed issue of fact and of law, for the court required both oral and documentary evidence to enable it to pronounce judgment upon it. The position, therefore, was not precisely that contemplated by Order XIV, Rule 2, of the Code of Civil Procedure; but representations must have been made to to the court that it would be convenient to the parties if this issue were tried out first, before the parties were called upon to produce evidence on any of the other issues raised. The learned Munsif fell in with this view and fixed a date for the trial of of this issue only. He took the evidence tendered by the parties and recorded his finding, 'with the reasons therefor', as required by Order XX, Rule 5, of the Code of Civil Procedure. The decision is to the effect that 'the suit is cognizable by this court', and the order passed thereupon is 'that the suit be fixed for hearing on some date convenient to the parties'. The learned Munsif went further and drew up a 'formal order', a sort of preliminary decree, beginning with the words, 'This case coining up for hearing', and ending with: 'It was ordered that the suit was cognizable by this court'. It seems beyond question that the trial court intended, presumably with the consent of the parties, to detach this question of jurisdiction from the remaining questions raised by the pleadings and to dispose of it as separate matter preliminary to the trial of the 'suit' proper. It seems worth noticing at once that, if the decision of the learned Munsif upon this issue had been in the opposite sense, the correct legal consequence would not have been a decree dismissing the suit, but an order that the plaint 'be returned to be presented to the court in which the suit should, have been instituted'; vide Order VII, Rule 10, of the Code of Civil Procedure. From such an order an appeal lies under Order XLIII, Rule 1(a), read with Section 104 of the said Code; and in the present case the appeal would have lain to the Court of the District Judge. It is, therefore, clear that if the plaintiff in the suit had felt dissatisfied with the decision of the trial court upon the question of jurisdiction, he could have claimed as of right to have that decision reviewed by a higher tribunal, but that this tribunal would have been the court of the District Judge, any further right of appeal being expressly excluded by Section 104(2) of the Code of Civil Procedure.

4. It so happens that it is the defendants who are dissatisfied with the decision of the Munsif of Etawah upon the question of jurisdiction; they have invoked the revisional jurisdiction of this Court, as defined and limited by Section 115 of the Code of Civil Procedure. They ask this Court to re-consider the materials upon which the learned Munsif arrived at the conclusion that the plaintiff had established a cause of action arising, in part at any rate, within the local limits of the jurisdiction of his court. On behalf of the plaintiff the point has been taken, by way of a preliminary objection, that it is not open to this Court to examine the record, because it is not 'the record of any case which has been decided,' within the meaning of that expression as used in Section 115 of the Code of Civil Procedure. Subsidiary to this main contention the argument has also been advanced that this Court ought not to interfere in revision because the defendants, in the event of the suit resulting in a decree in their favour, will not have been injured by the decision on the question of jurisdiction, while, in the event of a decree being passed against them, the law gives them a right of appeal against the decree, and in such appeal it would be open to them to take the point that the court of the Munsif of Etawah had no jurisdiction to pass any such decree.

5. I am quite satisfied, although something was said to the contrary in the course of arguments before us, that this plea would be open to the appellants in the case suggested. Where an appeal is given by law against the decree of a trial court it is always open to the appellant to challenge the correctness of the finding of the first court upon any material issue directly arising out of the pleadings. It follows that it would be within the discretion of this Court to refuse to entertain the present application on the mere ground that another remedy is open to the defendants. This, however, is not the point which has been referred to the Full Bench. We are asked to determine whether this application in revision is entertainable at all.

6. This question must be decided primarily with reference to the precise words used in Section 115 of the Code of Civil Procedure. That section empowers the High Court to '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.' These words lay down conditions precedent which must be satisfied before the revisional jurisdiction of the High Court comes into play: the record laid before that court for examination must be one of a case which has been decided, and in which no appeal lies to the said High Court

7. In the former Code of Civil Procedure (Act No. XIV of 1882) the corresponding section opened 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 case was decided appears etc.' Here the fact that the 'case,' in which the revisional jurisdiction of the High Court is invoked must have been 'decided' before the record is called for, was left to be inferred: it was not expressly so laid down. It seems to me that the Legislature, in redrafting this provision in the present Code (Act No. V of 1908), has almost gone out of its way to settle a point about which there had been some controversy; it is the more incumbent upon us to give full effect to the words used according to their plain meaning.

8. The words 'case' and 'suit' are both used in various parts of the Code of Civil Procedure and neither of them is defined. We know that a 'suit' commences with the presentation of 'plaint' (see Section 26 of the Code) and terminates in a 'decree,' according to the definition in Section 2, Clause (2)A 'case' need not do either of these things, and generally speaking this word seems to be used in those rules which are intended to apply to other proceedings as well as 'suits.' It need scarcely be pointed out that there are many such proceeding, as for instance those under the Guardians and Wards Act and under the Provincial Insolvency Act. The word 'case' is, therefore, the more comprehensive expression of the two; but while in Order XIV, Rule 2, it is used as if practically synonymous with 'suit,' I am confident that instances, can be quoted of its use where it would not at least include a 'suit.' If this view is correct, it follows that where as all 'cases' are not 'suits,' every 'suit' is least a 'case.' From this I would go on to conclude that, where the 'case' in which the revisional jurisdiction of the High Court is invoked happens to be also a 'suit,' then this suit is itself the 'case' referred to in Section 115 of the Code of Civil Procedure, which requires to be decided before the record of called for. To put the point in another way: holding that the word 'case' in the Code of Civil Procedure always includes a 'suit,' I read the relevant portion of Section 115 just as if it ran: 'May call for the record of any suit or other description of case which has been decided.' The record of a suit, therefore, should not be called for under this section until the suit has been decided.

9. This would be my answer to the question under reference if I based that answer solely on the interpretation of the words of Section 115 of the Code of Civil Procedure as they stand. If I refer to any further considerations it is only because they seem to me to confirm this view, and not because they have determined it. These further considerations are in substance three.

Firstly, in drafting the present Code of Civil Procedure, Act No. V of 1908, the Legislature seems to me to have dealt 'carefully and systematically with the question, how far a party to a suit, finding himself aggrieved by any order passed by the trial court prior to the delivery of the final judgement should be permitted to carry the matter before a higher tribunal without waiting for the decision of the suit. I would lay stress on the fact that, after Section 101 of the Code has provided a right of appeal against a number of orders dealing with arbitrations or with the exercise of the punitive jurisdiction of the courts, the last clause of this section relegates to the schedules the list of; other order's against which a right of appeal is given. This leaves It open to the various High Courts to make additions to this list, without invoking the interference of the Legislature, if experience should suggest that any probable case of real hardship has been left unprovided for. The list of appealable orders, given in Order XLIII, Rules 1 and 2, has been carefully drawn up, so much so that in a number of instances an appeal is given when the Court has decided a particular question in one sense, but not if the decision is the other way. My own opinion is that the list is an adequate one, and that the intention of the Legislature will best be carried out by refraining from interference with orders passed by subordinate courts the course of the trial of suits, while giving full effect to the provisions of Section 105 of the Code of Civil Procedure by allowing the unsuccessful party to challenge in appeal from the final decree any order which has affected the decision of the case, that is to say, any order passed by the trial Court but for which the decision might have been other than it was.

Secondly, I take a point which has a direct bearing on the particular question before us. The Legislature has definitely considered the possibility that some particular issue raised by the pleadings in a suit may be tried out and determined as a preliminary to the trial of the remaining issues. Indeed, under Order XIV, Rule 2, of the Code the Court is bound to try first any issue or issues of law which arise upon the pleadings and are such that their determination may perhaps suffice to dispose of the 'case, or any part thereof.' Yet no right of appeal is provided against an order which determines one or more of such preliminary issues. I think the Legislature was of opinion that the balance of convenience was, on the whole, in favour of leaving such findings to be contested on appeal from the final decree, I think it intended to exclude this Court's interference in revision by the use of the words 'case which has been decided' in Section 115 of the Code of Civil Procedure. If this Court is of opinion that the balance of convenience is the other way, it can lay down rules prescribing a proper form of procedure and a right of appeal from all orders which determine preliminary issues in a suit. This would at any rate have the advantage of putting a preliminary issue on a point of jurisdiction on the same footing as a similar issue on a question, say of limitation, and of sending the case on appeal be the Court to which appeals from the trial court ordinarily lie.

This last remark leads up to the third point which I desire to make. I think that by interfering in revision in this matter we should be ousting the jurisdiction of the proper court of appeal to which the Legislature has entrusted the duty of reviewing the decision of the Munsif's Court upon this particular issue. I have pointed out that, if his decision had been the other way, the result would have been an order appealable to the Court of the District Judge. I think that the decision actually arrive at was equally intended to be reserved for reconsideration by the same court, by way of appeal from the final decree. If the learned Munsif had seen fit to do so, he would have been within his jurisdiction had he simply informed the parties that, for reasons to be recorded hereafter in his judgement on the suit, he proposed to decide the question of jurisdiction in favour of the plaintiff and would therefore proceed with the trial of the remaining issues. The only order of the record would then have been an order fixing a date for this purpose. I do not see how this Court could be asked to treat such an order as one by which a 'case' between the parties had been 'decided.' If I am right in taking this view, then the present application in revision can be supported only on the ground that the Munsif elected to deal with the preliminary issue in a particular way; that is to say, it was in his discretion either to confine the defendants to their remedy by way of appeal from the final decree or, while leaving them this remedy still open, to offer them the option of coming up to this Court in revision. It may be an arguable point whether such a state of things would be desirable, but my point is that it was not contemplated by the Legislature, and was intended to be excluded by the use of the words 'case which has been decided' in the section which are we considering.

10. In what I have said above I have, as I think, incidentally disposed of an argument on which a good deal of stress seemed to be laid in support of this application. If I rightly understood the point, it was represented to us, more particularly with reference to the case-law on the subject, that there must be something inherently unsound, or even absurd, about, the propsition that a Court can, by determining a particular question in one sense, decide a case between contending parties, whereas a finding in the opposite sense would not be held to have decided the case. This was not the opinion of the learned Judges of this Court who dealt with an application in revision in the reported case of Muhammad Ayab v. Muhammad Mahmud (1910) I.L.R. 32 All. 628 and I cannot myself see anything unsound about the proposition stated in general terms. Suppose, for instance, that the pleadings in a suit raise the question whether or not the claim, on the facts stated in the plaint itself, is barred by limitation. A finding that it is so barred would obviously decide the entire case; it would result in a decree dismissing 'the suit. A finding in the opposite sense would certainly not determine the suit; and to hold that it had nevertheless decided a 'case' between the parties seems to me contrary to the letter and spirit of Order XIV, Rule 2, of the Code of Civil Proceedure.

11. This leads me on to the consideration of the case-law on the subject, about which I desire to say little. The view which I have taken is certainly not without support from authority. In Chattar Singh v. Lekhraj Singh (1883) I.L.R. 5 All. 293 it was laid down that, even under the former Code of Civil Procedure, 'it was not the intention to allow of revision of interlocutory proceedings in the course of a suit which do not determine it.' I would refer also to a much more recent case, that of Bai Rami v. Jaga Dullabh (1919) I.L.R. 44 Mad. 619, where the learned Judges lay it down broadly that '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.'

12. It is said that there is a considerable volume of authority on the other side, and numerous cases were cited. In a considerable number of these cases the High Court was dealing with the record of a case which had beyond question been decided, having been finally disposed of and struck off the pending file of the subordinate court concerned. An instance in point is Balakrishna Udayar v. Vasudeva Ayyar (1917) I.L.R. 40 Mad. 793. Other cases were referred to in which the High Court did interfere in revision; but without discussing the question whether the record before it was or was not that of a case which had been decided. It can only be said that in these instances this particular point was either assumed or conceded in argument. An instance is to be found in a reported decision to which I was myself a party: Janki Prasad v. Parmeswar Din Pandey (1915) 13 A.L.J. 482. It was there taken for granted that an order allowing an application to set aside an ex parte decree was one by which a case had been decided. Reconsidering this point in the light of the arguments which have been addressed to us at the hearing of this present application, I find it to be a very arguable one. If it ever arises before me again I shall ask to have it fully argued before I commit myself to a reasoned decision; but at any rate it is very different from the point now before us.

13. On this particular point there is one reported decision of this Court directly in favour of the applicants, that of Bhargava & Co. v. Jagannath, Bhagwan Das (1919) I.L.R. 41 All. 602. I understand that this present application has been referred to a Full Bench largely in order that this decision may be further considered and compared with other reported decisions in which this Court has refused to interfere on the ground that the record before it was not that of a case which had been decided. Such cases are fairly numerous. I would refer to my own decision in Dhandei Kunwar v. Chotu Lal (1916) I.L.R. 39 All. 254, to Sultanat Jahan Begam v. Sundar Lal (1919) I.L.R. 41 All. 602 and to the cases to be found in 12 A.L.J., 460; 13 A.L.J. 435 and 16 A.L.J. 535.

14. It must be conceded on the other hand that the Calcutta High Court has held that the word 'case' in Section 115 of the Code of Civil Procedure (Act No. V of 1908), or in the corresponding section of the Code of 1882, is wide enough to include the decision of a particular question arising in the course of the trial of a suit, as distinguished from the suit itself. I do not think we were referred to any case in which this principle was specifically extended by that Court to include the determination of a preliminary issue arising out of the pleadings, or that this particular point has ever been considered by the learned Judges of the Calcutta High Court with reference to the wording of Order XIV, Rule 2, of Act No. V of 1908, or the general scope and intention of that Statute in the matter of appeals from orders. The learned Judges who decided the case of Bhargava & Co. v. Jagannath, Bhagwan Das (1919) I.L.R. 41 All. 602 are members of this Bench and in a position to say whether their opinions have been modified by the arguments to which we have listened. With all respect for their authority, I do not think that their decision is supported by anything in the Privy Council case of Balakrishna Udayar v. Vasudeva Ayyar (1917) I.L.R. 40 Mad. 793 which it purports to follow. The weight of authority, in this Court at any rate, seems to me against it; and I have given my reasons for taking a different view of the meaning and effect of the determining words in Section 115 of the Code of Civil Procedure.

15. In my opinion, therefore, the order against which this application in revision has been filed is merely a finding by the trial court on one out of several issues arising in a suit which is still pending; I would dismiss the application on the ground that the record before us is that of a pending suit and not the record of, any case which has been decided.

Walsh, J.

16. A, preliminary objection is raised to the competency of the High Court to entertain this application in revision.

17. In my opinion two conditions precedent, and two only, have to be established before the High Court can entertain an application in revision. The matter complained of must be a 'case which has been decided by a court subordinate' and it must be a case 'in which no appeal lies to the High Court.'

18. In this case the Munsif has decided the question of his own jurisdiction in a hearing separate and distinct from the merits, as a preliminary question. He has taken evidence, he has delivered a judgment deciding the point and he has drawn up an order. I think this is a 'case', as distinct from a suit. It certainly is so in the ordinary signification of the term. The fact that the hearing was an interlocutory one or a preliminary one does not make it any the less a case, Interlocutory matters in England, where an appeal is allowed, sometimes even to the House of Lords, are certainly 'cases'. This point was decided in India by the Calcutta High Court in 1887, Dhapi v. Ram Pershad (1887) I.L.R. 14 calc. 768, and has never since been questioned there. Many instances are to be found in the reports of similar cases of interference by our own High Court, though not in the precise form of the case now before us. I cannot add anything to what I said in my judgment in Bhargava & Co. v. Jagannath, Bhagwan Das (1919) I.L.R. 41 All. 602.

19. No appeal lies from the order now before us. The fact that an appeal may hereafter be brought from the final decree and that under Section 105 of the Civil Code this order may be made the subject of an objection in such appeal so far as it affects the merits, does not in my opinion make the case one in which an appeal lies to the High Court now, when the application in revision is made.

20. On these grounds I think the preliminary objection fails. To hold otherwise is to my mind to do violence to the language of the section, and to ignore the interpretation put upon it by the Privy Council. Having regard also to the necessity of this Court exercising control over the lower courts, especially on questions of jurisdiction in interlocutory as well as other matters, I should regard it as a serious blot on our procedure if the preliminary objections were to prevail.

21. Whether the case is one which on the merits, and on the question of jurisdiction, calls for the interference of the High Court is an entirely different question which is not before us.

22. The instances in which the High Courts in India have interfered in cognate matters, and the Judges who have done so in this as well as in other High Courts, are so numerous that it would be wearisome to recite them. It is idle to deny that there are pronounced and irreconcileable differences of principle in the practice followed by different Judges in the Allahabad High Court. I regard the state of authorities on this question in this High Court as a lamentable one. The decisions appear to hold that an application for leave to sue in forma pauperis is a 'case decided' with in the meaning of this section if it is decided in the negative, but not if it is decided in the affirmative, and also that a decision of a Munsif holding that he has no jurisdiction in a suit for possession valued at Rs. 49 is a 'case decided' within the meaning of this section, but a decision that he has jurisdiction in a suit for possession valued at Rs. 1,00,000 is not. I am unable to subscribe to these unsubstantial and embarrassing distinctions.

Ryves, J.

23. The only question which I propose to answer in this case is whether the decision of a single issue by a Subordinate Court, in a suit which is still pending in that Court, is a 'case decided from which no appeal lies' to this Court, within the meaning of Section 115 of the Code of Civil Procedure, so as to give us jurisdiction to call for the record, and pass orders under that section.

24. My answer is confined strictly to the precise point we have to decide. The referring order, I think, is perhaps framed too widely, though I was myself chiefly responsible for its wording.

25. The case was originally argued at length before my brother Gokul Prasad and myself and we referred it to a larger Bench. It then came before ourselves and our brother Walsh. It was then referred to a Bench of five Judges and it has been, again fully argued.

29. I have had the advantage of reading my brother PIGGOTT's judgment, and I propose to say very little on my own behalf.

30. However expedient or desirable it might be for this Court to be able to interfere in a matter of this kind, I feel our jurisdiction to do so must be determined by the language of Section 115. This Court has framed no rules under Section 122, so we are thrown back on the section. In my opinion it is impossible to hold either that the words used, which I have quoted above, can be interpreted to give us jurisdiction or that the Legislature ever meant to give us such jurisdiction. I agree with the conclusions of PIGGOTT and GOKUL PRASAD JJ., and generally with the reasons given by my brother PIGGOTT.

31. There are only two reported cases exactly in point, one by RAOOF, J., sitting alone, who held that this Court could not interfere, Makhan Lal v. Chunni Lal (1918) 16 A.L.J. 777, and the case of Bhargava & Co. v. Jagannath, Bhagwan Das (1919) I.L.R. 41 All. 602, decided by RAFIQ and WALSH JJ., who took the opposite view.

32. I think Mr. Justice RAOOF was right. A case decided by myself, Bihari Lal v. Baldeo Narain (1918) I.L.R. 40 All. 674 has been relied on as supporting a contrary view to what I have above expressed. I still maintain my view in the case, but it seems to me to be wholly irrelevant here. There is nothing in common between that case and this.

33. I cannot see that our decision now will prevent every so-called 'interlocutory order' from being questioned except on appeal after the final decree in the suit.

Gokul Prasad, J.

34. I entirely concur in what my learned brother PIGGOTT has said and have nothing to add.

35. After the pronouncement of the Full Bench, the case was put up for final orders before the Bench which orginally heard it.

Ryves and Gokul Prasad, JJ.

36. Having regard to the decision of the Full Bench on the point of law referred this revision must fail. We therefore dismiss it with costs.


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