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Shah Prabhudas Ishwardas Vs. Coprarceners of a Joint Hindu Family of Shah Bhogilal Nathalal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 345 of 1962
Judge
Reported inAIR1968Guj236; (1967)GLR649
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Evidence Act; Stamp Act - Sections 2(22)
AppellantShah Prabhudas Ishwardas
RespondentCoprarceners of a Joint Hindu Family of Shah Bhogilal Nathalal and ors.
Appellant Advocate M.C. Shah, Adv.
Respondent Advocate K.M. Parikh, Adv. for; A.S. Pradhan, Adv.
Cases ReferredVenkatagiri Ayyangar v. Hindu Religious Endowments Board
Excerpt:
.....clearly show that case decided within the meaning of section 115 is not confined to an entire suit or proceeding but includes an issue or a part of a suit or proceeding and if an order decides an issue or a part of a suit or proceeding, it would be a case decided within the meaning of section 115. if an order decides some right or obligation which is in controversy between the parties in the suit or proceeding, a part of the suit or proceeding, whether it forms the subject-matter of a separate issue or not, would be decided and that would be a decision of a case as contemplated by section 115. such an order may decide the right or obligation expressly in so many terms or it may decide the right or obligation as a matter of direct and necessary consequence as in the case before the..........of the same high court as to whether an order of a court which does not finally dispose of the suit or proceeding amounts to a case decided. one view which was accepted by a majority of the high courts was that the expression case includes an interlocutory proceeding relating to the rights and obligations of the parties and the express in 'record of any case' includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. the other view was that the expression case does not include an issue or a part of a suit or proceeding and, therefore an order on an issue or a part of a suit or proceeding is not a 'case decided' and the high court has no power to revise such an order. this divergence of views led to several conflicting decisions resulting in.....
Judgment:

Bhagwati, J.

(1) This revision application arises out of a suit filed by the plaintiffs against the defendants to recover a sum of Rs. 3,600 being the amount of three instalments due and payable by defendants to the plaintiffs under a document Exhibit 4/1 executed by defendants Nos. 1 and 2 in favour of the plaintiffs. The plaintiffs also relied on another document Exhibit 4/2 in support of this claim, though the claim was rested primarily on the document Exhibit 4/1. The defendants amongst various defense raised by them in the written statement urged that the documents. Ex. 4/1 and 4/2 were promissory notes and since they were inadequately stamped, they were not admissible in evidence. One of the issues framed by the trial Court, namely, issue No. 3, therefore, raised the question whether the documents Exhibits 4/1 and 4/2 were promissory notes and hence inadmissible in evidence. At the trial of the suit, when the plaintiff's partner Chimanlal Jagjivandas was in the witness-box and was being examined-in-chief, the documents. Exhibits 4/1 and 4/2 were sought to be tendered in evidence and an objection was, therefore, raised on behalf of the defendants against their admissibility. The trial Court heard the arguments on the question whether the documents Exhibits 4/1 and 4/2 were promissory notes and by an order dated 2oth February 1962, held that the said documents were promissory notes and being inadequately stamped, they were inadmissible in evidence. Issue No. 3 was accordingly answered against the plaintiffs, the plaintiffs thereupon preferred the present revision application challenging the decision of the trial Court.

(2) When the revision application first reached hearing before me as a single Judge, a preliminary objection was raised on behalf of the defendants and the preliminary objection was that the revision application was incompetent as the case did not fall within the four corners of Section 115 of the Code of Civil Procedure. The determination of the preliminary objection obviously depended on the true scope and ambit of Section 115 and I felt that the question of construction of Section 115 raised by the preliminary objection was a question of some importance which may be decided by a Division Bench of this Court and I, therefore, referred the revision application to a Division Bench. That is how the revision application has now come up for hearing before us. The revision application is directed against the decision of the trial Court in regard to both the documents Exhibits 4/1 and 4/2 but there is no distinction in principle between the case relating to the document Ex. 4/1 and that relating to the document Ex. 4/2 and, therefore, whatever we say in regard to the document Exhibit 4/1 will apply equally to the decision relating to the document Exhibit 4/2.

(3) The first question that arises for consideration is and that is the question which necessitated the reference of the present revision application to a Division Bench, whether a revision application lies against the decision of the subordinate Court holding that the document Exhibit 4/1 on which the suit is brought by the plaintiffs is a promissory note and not being adequately stamped, it is not admissible in evidence. The determination of the question depends on the true interpretation of the provisions of Section 115 which is the section which confers revisional jurisdiction on the High Court. Section 115 says:

'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, 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 it thinks fit.'

A plain reading of the section shows that two conditions are necessary to be fulfilled in order to attract the revisional jurisdiction of the High Court. The first condition is that there must be a 'case' decided by a subordinate Court and no appeal must lie against such decision to the High Court and the second condition is, that the subordinate Court must have exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested or acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court cannot interfere in revision with the decision of the subordinate Court unless both these conditions are fulfilled. It, therefore, becomes necessary to consider whether these two conditions are fulfilled in the present case. If either of these two conditions is not fulfilled, the revision application would be incompetent and the preliminary objection would prevail.

(4) Turning to the first condition, what it requires is that there must be a 'case' decided by a subordinate Court. The power of the High Court in revision is exercisable only in respect of ' any case which has been decided'. Now what is a case decided within the meaning of the section? There was never any doubt that the expression 'case' is not restricted to a litigation in the nature of a suit in a Civil Court: Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 = (AIR 1917 PC 71). It includes a proceeding in a Civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. But there was a serious conflict of opinion amongst the different High Courts and there were differences even amongst the different Benches of the same High Court as to whether an order of a Court which does not finally dispose of the suit or proceeding amounts to a case decided. One view which was accepted by a majority of the High Courts was that the expression case includes an interlocutory proceeding relating to the rights and obligations of the parties and the express in 'record of any case' includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. The other view was that the expression case does not include an issue or a part of a suit or proceeding and, therefore an order on an issue or a part of a suit or proceeding is not a 'case decided' and the High Court has no power to revise such an order. This divergence of views led to several conflicting decisions resulting in confusion and it was, therefore, necessary that this conflict should be set at rest by the highest Court in the land. The occasion to do so arose in S. S. Khanna v. F. J. Dillion, AIR 1964 SC 497. In that case the Supreme Court was called upon to consider as to which of the two conflicting views represented the correct law and after examining the nature of the jurisdiction conferred by Section 115 and the purpose for which the High Courts were invested with it, the Supreme Court pronounced in favour of the former view which gave a wide and more lineral interpretation to the expression case. The order impugned in revision in that case was an order passed by the subordinate Court holding that Dillon's suit against Khanna was not maintainable and the Supreme Court held that though that order was not a final order disposing of the suit, it was yet a case decided within the meaning of Section 115 and, therefore, revisable under that section. Shah J., speaking on behalf of Sarkar J. and himself, said:

'The expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'

Hidayatulla J, also observed to the same effect in a concurrent judgment:

' . . . . . . and the word 'case' does not mean a concluded suit or proceeding but each decision which terminates a part of the controversy involving a matter of jurisdiction.'

These observations clearly show that case decided within the meaning of Section 115 is not confined to an entire suit or proceeding but includes an issue or a part of a suit or proceeding and if an order decides an issue or a part of a suit or proceeding, it would be a case decided within the meaning of Section 115. If an order decides some right or obligation which is in controversy between the parties in the suit or proceeding, a part of the suit or proceeding, whether it forms the subject-matter of a separate issue or not, would be decided and that would be a decision of a case as contemplated by Section 115. Such an order may decide the right or obligation expressly in so many terms or it may decide the right or obligation as a matter of direct and necessary consequence as in the case before the Supreme Court. But in either case it would be a case decided, as the right or obligation would be determined and a part of the suit or proceeding relating to the controversy as to such right or obligation would be decided.

(5) Applying this test, let us see whether the order impugned in the present case can be said to be a case decided within the meaning of Section 115. Does the order decide an issue or a part of the suit by determining some right or obligation in controversy between the parties in the suit? The c must clearly be in the affirmative. The question whether the document Exhibit 4/1 was a promissory note and, therefore, inadmissible in evidence by reason of insufficiency of stamp formed the subject-matter of issue No. 3 and the decision of this question had a direct bearing on the right of the plaintiffs to recover the settled amount from the defendants. The document Exhibit 4/1 being the foundation of the plaintiff's claim, the direct and inevitable consequence or the decision was that the plaintiffs claim must fail and the order, therefore, determined by its direct and immediate impact the right of the plaintiffs to recover the amount claimed by them from the defendants which right was in controversy in the suit. The order thus decided issue No. 3 or in any event a major part of the suit and consequently it was a case decided within the meaning of Section 115 and the first condition of applicability of the section was fulfilled.

(6) Mr. K. N. Parikh, on behalf of the defendants, however, relied on a decision of Raju J, in Bhachibai v. Shah Virji Devji : AIR1963Guj241 , where it has been held by the learned Judge:

'Similarly, when the Court allows a document to be admitted in evidence or the Court refuses to allow it, that does not amount to deciding a case, but it amounts to deciding a question regarding the admissibility of certain evidence. Therefore, when the Court decides question under the Evidence Act, it is not deciding a case, and, therefore, its decision cannot be the subject-matter of revision under Section 115, Civil Procedure Code.'

This statement of the law is certainly true as a general propositions but like all general propositions it is not universally true. It is necessary to make one qualification to this general propositions. Where the question of admissibility arises in regard to a document which constitutes the foundation of some right or obligation in controversy between the parties in the suit or proceeding so that the decision of the question of admissibility would by its direct and immediate consequence, of its own force, determine such right and obligation, it would not be correct to say that the decision of the question under the Evidence Act : since it decides a part if the suit or proceeding by determining the right or obligation in controversy between the parties, it would amount to Section 115. The statement of the law laid down by Raju J. would not be correct in its application to such a case. Ordinary, it is true that a decision of a question of admissibility of a document would be nothing more than decision of a 'case' but there may be cases where such a decision may decided an issue or a part of a suit of proceeding as in the present case and in such cases the decision would certainly be a case decide.

(7) That takes us to a consideration of the second condition requisite for the applicability of Section 115. What is the true scope and meaning of this condition has been the subject matter of judicial pronouncement in serval decisions of the Supreme Court and the position may now be regarded as fairly settled. As observed by the Privy Council in 44 Ind passage quoted with approval by the Supreme Court in Abbasbhai v. Gulamnabi : [1964]5SCR157 :

'...... the section (Section 115 of the Code of Civil Producer) 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.'

If a subordinate Court has jurisdiction to decide a question before it, it may decide it rightly or wrongly, whether the question be one of law or fact: that would not bring the case within the section. It is only where the error of law or fact has relation to the jurisdiction of the subordinate Court to try the dispute that the section would be attracted. To take an example of an error of law affecting the jurisdiction of the Court, it is well settled that a plea of limitation or plea res judicata is a plea of law which concerns the jurisdiction of the Court trying the proceeding. A finding of these pleas in favour of the party raising them would oust the jurisdiction of the Court and so an erroneous decision on these pleas can be said to be concerned with the question of jurisdiction vested in it, and if, on the other hand, raising the pleas, the Court would be clutching at jurisdiction it does not possess. In either case the section would be attracted: Clause (b) in the former case and Clause (a) in the latter. On principles, this proposition would appear to the unquestionable and no authority is necessary to support it but if any authority were needed, it is to be found n the following observations of Sir John Beaumont, in the Privy Council case of Joy Chand Lal v. Kamalaksha Chaudhury , which were quoted with approval by the Supreme Court in Manindra Land and Building Corporation Ltd v. Bhutnath, AIR 1954 SC 1336:

' .... if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or falling to exercising a jurisdiction so vested, a case law for revision arise under sub-section (a) or sub-section (b) and sub-section (c) can be ignored ..... The cases of Babu Ram v. Munna Lal : AIR1927All358 and Hari Bhikaji v. Naro Vishvanath, (1885) ILR 9 Bom 432, may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous, that is, in the view of the High Court ), in the that one case on a point of limitation and in the other on a question of res judicata, invested itself with jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result'.

The position would be the same where there is an error of fact having relation to the jurisdiction of the Court. Such a case would arise where the jurisdiction of the Court depends on the existence or non-existence of a collateral fact and by an erroneous decision of that fact the Court assumes jurisdiction not vested in it such a case the High Court would be entitled to revise the erroneous decision under Clause (a) or Clause (b) of section 115. Example of this kind of cases may be found in (Supra), where the erroneous decision related to the question whether the date of construction of the building was before or after 30th June 1946. In both these cases the decisions impugned in revision were decision of collateral facts on the determination of which depended the jurisdiction of the subordinate Court and the Privy Council in the one case and the Supreme Court in the other, therefore, held that the High Court had jurisdiction to interfere in revision. In the latter case the Supreme Court pointed out there distinction between collateral jurisdictional facts on the determination of which depends the jurisdiction of the subordinate Court and facts in issue which are lift exclusively to the determination of the subordinate Court. In one case the subordinate Court decides a question pertaining to jurisdiction or refuses to exercise jurisdiction and by a wrong decision it clutches at jurisdiction while in the other, the subordinate Court decides a question within its jurisdiction. The former being a decision having relation to the jurisdiction of the Court would be a decision be revisable under clause (a) or Clause (b) of Section 115 but not so the latter, for that would be a decision within jurisdiction. It must, therefore, be concluded that while exercising jurisdiction under section 115, it is not competent to the High Court to correct errors of fact or even errors of law, however c or egregiously wrong they may be, unless they have relation to or are concerned with the jurisdiction of the Court to try the dispute. Vide Pandurang v. Maruti, AIR 1966 SC 153.

(8) But the question may then be asked; what about Clause (c) of Section 115? That clause empowers the High Court to interfere where the subordinate Court has acted illegally or with material irregularity in the exercise of jurisdiction. Can the High Court not interfere in revision under this clause where it finds that the subordinate Court has wrongly decided a question of law in the exercise of its jurisdiction? If the question is asked in general terms, the answer is plainly 'No'. Section 115 is not directed towards correcting errors of law in the exercise of jurisdiction. As held by the Supreme Court in : [1966]1SCR102 (Supra), it is only if the error of law has relation to the exercise of jurisdiction illegally or with material irregularity by the subordinate Court that the High Court can correct such error of law in revision. What when is the meaning of the expression 'has acted illegally or with material irregularity in the exercise of jurisdiction'? This question is also no longer open to doubt or debate. In Keshardeo Chamaria v. Radhakissen Chamaria : [1953]4SCR136 , the Supreme Court quoted with approval the observations of Bose J., in his order of reference in Narayan Sonaji v. Sheshrao Vithoba, AIR 1948 Nag 258 (FB) and observed that:--

'. . . . .the words 'illegally' and 'material irregularity' do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with'.

It will be clear from these observations that a mere error of law in the exercise of jurisdiction is not enough. What is necessary is that the subordinate Court must have 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. Vide also Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras . This is the test which must be applied in order to determine whether the case fails within clause (c) of Section 115.

(9) Having examined the scope and ambit of Section 115 we will now proceed to consider whether the present case can be brought within any of the three clause of the Section. The question whether the document Exhibit 4/1 was a promissory note and was, therefore, by reason of inadequacy of stamp inadmissible in evidence was clearly a question within the jurisdiction of the trial Court and the decision of this question one way or the other did not have any relation to the jurisdiction of the trial Court. It cannot be said that by erroneous decision of this question the trial Court clutched at jurisdiction it did not possess or refused to exercise jurisdiction vested in it by law. Now can it be said that the trial Court in arriving at the decision acted in breach of any provision of law or committed any error of procedure in the course of the trial which could be regarded as material. Of course it must be conceded that the decision of the trial Court was erroneous, the error committed by the trial Court was undoubtedly an error of law, for the decision turned on the question whether the document Exhibit 4/1 was a promissory note within the meaning of Section 2(22) of the Stamp Act which would be clearly a question of law but this error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court and, therefore, none of the three clauses of S. 115, was attracted in the present case. The Revision Application was, therefore, incompetent and the preliminary objection raised on behalf of the defendants must prevail. In this view of the matter it is not necessary to go into the merits of the controversy raised in the revision application.

(10) The revision application, therefore, fails and rule is discharged with costs.

(11) Revision dismissed.


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