(1) This petition must be dismissed on the short ground that the impugned order is beyond the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure. The petition has arisen in the following circumstances :-
(2) The petitioners are defendants in a suit filed by the respondent for the recovery of about Rs. 10,000 on account of price of goods alleged to have been supplied by the respondent to the defendants. The plaintiff closed his case on August, 1,1968. When the suit came up for the evidence of the defendants on August 21, 1968 no evidence of the defendant was either present nor had any been summoned. On the request of the counsel for the defendants for adjournment the trial court made the following order:-
'Its fixed for defendants' evidence. Date for the evidence was fixed long time back but they have not summoned any evidence nor any evidence is present. It is stated by learned counsel of the defts. that only the three defts; namely, Nos. 2 to 4, are to appear as witnesses and they are not to lead any other evidence, and adjournment is requested for their statements. One final adjournment is given for their statements on 6-11-1968. Arguments on 11-11-1968'.
(3) When the matter came up for the statements of the defendants in terms of the order of August 21, 1968 on November 6, 1968 the trial court made the following order:-
'Its fixed for defendants' evidence. Only one witness is present. But counsel for defendants is not present. His son is stated to be in the hospital, after being burnt. The adjournment is granted in the ends of justice. To come up on 3-1-1969 for defendants' evidence at their responsibility. No other adjournment would be given'.
(4) It appears that for 3-1-1969 onwards the case was adjourned from time to time as the presiding Officer was on leave and no progress could be made in the proceedings on that account. On September 17, 1969, however, when the case came up for further proceedings the defendants were present but their counsel was not available and at the request of the defendants the case was adjourned to 31-10-1969.
(5) On October, 31, 1969 defendant No. 3 was present along with one witness Ram Singh while the other defendants were not present. So far as defendant No. 2 is concerned even his counsel was not present, but a medical certificate in respect of the sickness of this defendant was produced by defendant No. 3. The trial court by an order of this date held that the defendants were not entitled to examine any other witness except themselves and accordingly declined to record the statement of Ram Singh, the witness who was present. So far as defendant No. 2 was concerned the trial court observed that there was no appearance for defendant No. 2 and directed that defendant No. 2 be proceeded ex parte. As regards defendant No. 4 the trial court found that no reason had been assigned for the absence of this defendant in spite of a specific direction for her appearance on that day and, thereforee, declined to adjourned the case for the statement of this defendant. The trial court accordingly closed the evidence of the defendants and directed that the case may come up for rebuttal, if any, on 9-1-1970.
(6) Aggrieved by the order of the trial court of October, 31, 1969 the petitioners have filed the present petition.
(7) The impugned order of the trial court was sought to be assailed on behalf of the petitioners on a number of grounds.
(8) In the first instance, it was contended that inasmuch as witness Ram Singh was undoubtedly present at the time of hearing of the suit on 31-10-1969 and the court had discretion to examine any witness at any stage of the proceedings the trial court grievously erred in declining to examine this witness. Counsel for the petitioner sought support for his contention from the order of the trial court made on November, 6, 1968 which specifically mentioned that the case was being adjourned for the 'evidence' of the defendants and further contended that on November 6,1968 witness Ram Singh was also present. Counsel further contended that the trial court was in error in holding that by its order of August 21, 1968 the case had been adjourned to November, 6 1968 only for the statement of the defendants and criticised the observations of the trial court that the mention of the defendants' evidence in the order dated November 6, 1968 was the result of any misapprehension.
(9) In the second instance, it was contended that in so far as defendant No.2 was concerned a medical certificate in respect of the sickness of this defendant having been produced by defendant No. 3, the trial court ought to have accepted the medical certificate and should have granted time for the examination of this defendant notwithstanding the fact that neither the defendant nor his counsel was present at the hearing and that the trial court was in error in proceeding ex parte against this defendant.
(10) In so far as defendant No. 4 is concerned, no grievance was made in respect of the direction contained in the order in respect of this defendant, but it was contended that in case the impugned order was set aside and an opportunity was granted to the other defendants to produce evidence this defendant may also be allowed to be examined as her own witness.
(11) Mr. Sethi appearing on behalf of the respondents contended that as regards the direction of the trial court declining to allow the examination of Ram Singh witness the defendants were not entitled to examine any witness apart from themselves as the defendants, would be deemed to have given up their right to examine any witness other than themselves on August 21, 1968 and this is amply borne out by the order of the court made on the said date. Mr. Sethi further pointed out that the reference in the order of November 6, 1968 to the 'defendant's evidence' either related to the statements of the defendants themselves or if it related to other evidence was the result of misapprehension and invited attention in this connection to the impugned order in course whereof it was pointed out by the trial court that the case had been adjourned on August 21, 1968 only for the statements of the defendants as their own witnesses and that the order of November 6, 1968 in so far as it could be construed as entitling the defendants to examine other witnesses was the result of the misapprehension.
(12) Mr. Sethi further contended that in any event the trial court had the discretion to examine the said witnesses or to decline to examine the witnesses in the circumstances of the case and that the trial court had correctly exercised its discretion in declining to allow the examination of the witnesses in view of the statement of the defendants made on August 21, 1968 and no exception could, thereforee, be taken to the said order on this score.
(13) Mr. Sethi further contended that so far as the defendant No. 2 was concerned neither the defendant nor his counsel was present and the trial court was, thereforee, entitled to proceed ex parte and the petitioner could seek his remedy by putting in an application for setting aside the ex parte order but the same had not been done by the said defendant. Mr. Sethi further contended that as the said defendant was neither present in person nor through counsel but merely sent a medical certificate it was at any rate a discretionary matter for the trial court to accept the medical certificate in the absence of the defendant and his counsel and that the discretion had been properly exercised by the trial court in refusing to take notice of the medical certificate in the absence of the defendant and his counsel. As regards defendant No. 4 Mr. Sethi contended that this defendant was also absent in spite of a direction that the defendant should be present for her statement and that no Explanationn was placed before the trial court which may justify the non-appearance of this defendant and that trial court was, thereforee, justified in closing the evidence of the defendants.
(14) Mr. Sethi further contends that in any event by the impugned order the trial court had exercised its discretion in the matter of allowing the examination of a witness after the defendants had stated that they would not examine any evidence apart from examining themselves. Mr. Sethi further contended that similarly in closing the evidence of the defendants and in deciding- to proceed ex-parte against defendant No. 2 the court was again acting in exercise of its discretion and in the undoubted exercise of its jurisdiction and submitted that the exercise of such a discretion could not attract the revisional jurisdiction of this Court under S. 115 of the Code of Civil Procedure inasmuch as it could not be said that in the circumstances the trial court exercised jurisdiction not vested in it by law or failed to have exercised jurisdiction vested in it by law or to have acted in the exercise of its jurisdiction 'illegally' or 'with material irregularity'. This contention of Mr. Sethi appears to be well-founded.
(15) The revisional jurisdiction has been conferred on the High Court by S. 115 of the Code of Civil Procedure in the following terms:-
S. 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 hereto, and if such subordinate Court appears. (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. the High Court may make such order in the case as it thinks fit.'
(16) Clauses (a) and (b) of this section on a plain reading quite clearly could not be attracted in the present case as it could not be said that by the impugned order the trial court either exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction vested in it by law and the only way in which the counsel for the petitioner sought to bring the impugned order within the ambit of the revisional jurisdiction of this Court was to invoke clause (c) of this Section. The question that thereforee arises is whether on the facts and the circumstances of the case it could be said that in making the impugned order the trial court acted in the exercise of its jurisdiction either 'illegally' or 'with material irregularity' as envisaged by clause (c) S. 115 so as to attract the revisional jurisdiction of this Court.
(17) It is well-settled that where a court has jurisdiction to deter mine a question and it determines that question in exercise of such jurisdiction it could not be said that it acted 'illegally' or 'with material irregularity' merely because it has come to an erroneous decision either on a question of law or on a question of fact.
(18) While the mass of reported decisions touching the question would appear to show that the High Courts did not always appreciate the limits of their jurisdiction under the Section, the legal position has never been in doubt and as early as 1894 the Privy Council had occasion to deal with the question in the case of Raja Amir Hussain Khan v. Sheo Baksh Singh reported as 11 Indian Appeals 237(1) and observed as follows:-
'THE question then is, did Judges of the lower courts in this case, in the exercise of their jurisdiction, act 'illegally' or 'with material irregularity'. It appears that they had perfect jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction 'illegally' or 'with material irregularity'.
(19) Later in the year 1917 again in Balakrishna Udayar v. Vasudeva Aiyar reported as 44 Indian Cases 261(2), the Board observed as follows:-
'IT will be observed that the section applies to jurisdiction alone. the irregular exercise of it, or non-exercise of it, or the illegal assumption of it. The section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved'.
(20) In 1949 the Privy Council again examined the scope of S. 115 in the case of Venkatagiri Ayyangar v. Hindu Religious Endowments Board. Madras reported as 76 Indian Appeals 67(3) and observed as follows:-
'SECTION 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however, profoundly from the conclusions of the subordinate Court on questions of fact or law'.
(21) Later in the case of Joy Chand Lal Babu v. Kamalaksha Chaudhury, reported as 176 Indian Appeals 131(4) their Lordship reiterated the position in the following words:-
'THERE have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observations that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub s. (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub-s (a) or sub-s (b) and sub-s (c) can be ignored.'
(22) The aforesaid observations of the Privy Council were quoted with approval by the Supreme Court in the case of Keshardevo Chamria v. Radha Kishan Chamria reported as 1953 Supreme Court 23 and it was held that the words 'illegally' and 'with material irregularity' did not cover either errors of fact or law and did not refer to the decisions arrived at but had reference to 'the manner' in which the decision had been arrived at. It was further held that the errors contemplated referred to material defects of procedure and not errors either of law or fact after the formalities which the law prescribed have been complied with.
(23) In the later case of D.L.F. Housing and Construction Co. (P) Ltd. : 2SCR368 , the Supreme Court again dealt with the point and observed as follows:-
'THE position thus seems to be firmly established that while exercising the jurisdiction under S. 115, it is not competent to the Hight 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. It was not contended, as in deed it was not possible to contend, that the learned Addl. District Judges 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 Addl. District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court created the revision virtually as if it was appeal.'
(24) It is thus clear from the afore said judgments of the Privy Council and the Supreme Court that the words 'illegally' or with material irregularity' used in clause (c) of S. 115 of the Code of Civil Procedure do not cover either errors of fact or of law and do not refer to the decisions arrived at, but have reference merely to the manner in which it is reached and that the errors contemplated by the clause could only be such as either relate to the breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or law, after the prescribed formalities have been complied with.
(25) On an application of the principles propounded in the aforesaid judgments to the facts of the present case, it would be clear that by the impugned order the trial court has merely exercised its discretion in matter of allowing a party to examine a witness in the face of the earlier statement of the party giving up the witness and in deciding to proceed ex-parte against a party who was neither present personally nor through counsel and had merely sent a medical certificate as also in the matter of closing the evidence of the parties who had chosen not to be present in spite of a direction to the contrary and it could not, thereforee, be said that by the impugned the trial court acted 'illegally' or 'with material irregularity' in the exercise of its undoubted jurisdiction. The criticism against the impugned order could only impinge on the question of the propriety of the discretion exercised by the trial court, but could have no reference to any 'illegality' or 'material irregularity' in the exercise of jurisdiction. The impugned order would thus be clearly beyond the scope of the revisional jurisdiction of this Court under Sec. 115 of the Code of Civil Procedure.
(26) In view of my conclusion with regard to the limits of the revisional jurisdiction of this Court I am not expressing any opinion whether in declining to examine the witness or in proceeding ex parte against some of the defendants and closing the case of the defendants the trial court was proceeding in proper exercise of discretion or not as the decision on this question has become necessary and any observations on that account may prejudice the parties in any proceedings that may be filed on the conclusion of the suit against the decree that may be passed in the case.
(27) In the result the petition fails and is dismissed, but, in the peculiar circumstances of the case, with no order as to costs.