Arthur J.H. Collins, Kt. C.J.
1. The questions referred to the Full Bench are whether the cases mentioned are open to revision under Section 622, Civil Procedure Code.
2. 'The High Court may exercise its powers of revision if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The reference states that the District Judge decided the case on a point taken by the Court itself as to which no issue was recorded, and it is further contended that the Judge acted illegally in admitting the appeals after they had become barred under the Law of Limitations. It is not stated that the attention of the Judge was called to these points, or that any review petition was presented. That the Judge had jurisdiction to try the cases appears to be certain, and 1 am of opinion that, although the Judge undoubtedly was wrong in law, that is no ground for revision under Section 622. See Amir Hassan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 I am inclined to adopt the words in the judgment of West, J. in Shiya Nathaji v. Joma Kashinath I.L.R. 7 Bom. 359 and hold that the section applies to an obviously perverse use of jurisdiction or authority which could not be justified even on the premises assumed or found by the Judge.
The degree of ignorance or bad law which would amount to perverseness must be determined by the facts of each particular case. I would hold that Section 622 does not apply to the cases in the reference.
Muttusami Ayyar, J:
4. 'This is a reference made as to the interpretation to be placed on the words in Section 622 of the Code of Civil Procedure, 'If the Court appears to have acted in the exercise of its jurisdiction illegally or acted with material irregularity.' The question submitted for the decision of the Full Bench is what effect is to be given to those words.
5. 'They were introduced into the Code by the amending Act of 1879, and they are not to be found in Act X of 1877. According to the last-mentioned Act, as originally framed, the High Court was authorized to interfere only in two classes of cases, viz., (i) when the Subordinate Court by which a case was decided exercised a jurisdiction not vested in it by law, or (ii) when it failed to exercise a jurisdiction vested in it by law. The class of cases' in which the Subordinate Court had admittedly jurisdiction, but acted in the exercise of such jurisdiction in contravention of a rule of law or of procedure, was not then contemplated and provided for. The inference is clear that it was to supply this omission that the words 'act illegally or with material irregularity in the exercise of its jurisdiction' were introduced in 1879.
6. 'The intention to extend the section to a third-class of cases being thus clear, some effect must be given, according to recognized rules of interpretation, to the words 'act illegally or with material irregularity' in order to carry out that intention. On this ground I am not prepared, on further consideration, to adhere to the opinion which I expressed in my judgment in Manisha Eradi v. Siyali Koya I.L.R. 11 Mad. 220 viz. that the words 'act illegally or with material irregularity' are referable to those cases only in which by reason of some error of law or of procedure the Subordinate Court either exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction vested in it by law. That opinion is not tenable, since it practically treats the additional words as superfluous or unnecessarily introduced.
7. 'Comparing Section 622 as altered by Act XII of 1879, with Section 584 of the code which states the grounds upon which a second appeal is to be admitted, it is apparent in what cases a decision is considered by the Legislature either to be illegal or to be vitiated by material irregularity. The real question is what is the distinction, if any, indicated by the words 'act illegally or with material irregularity' as contradistinguished from the words in Section 584 decide contrary to law or to a rule of procedure.'
8. 'In Amir Hassan Khan's case, the question raised for decision was whether an erroneous conclusion as to whether a suit is barred either by Section 13 or Section 43 of the Code of Civil Procedure was included in the words 'act illegally or with material irregularity.' The Privy Council decided the question in the negative and observed that though the Subordinate Courts might have decided it wrongly, yet they had jurisdiction.
9. 'Thus, it is clear that where the Subordinate Court applies its mind to a question of law or procedure and, arrives at an erroneous conclusion in the exercise of its jurisdiction it is not a ground for interference under Section 622.
10. 'This being so, the further question arises, what is the nature of the error contemplated by the words 'act illegally or with material irregularity,' if not an error of judgment in applying a rule of law or of procedure to the facts of a particular case. Looking to the several causes of erroneous decision in applying a rule of law or of procedure, they may consist either in misapprehension of a rule of law or of procedure present to the mind of the Judge or in omission to hear in mind some principle which qualifies or limits the operation of such rule.
11. 'I am therefore of opinion that the case contemplated by the words 'act illegally or with material irregularity' is that of perverse decision on a question of law or procedure. A decision can be said to be perverse only when the matter is pleaded and wilfully disregarded, or when there is some conscious violation of a rule of law or of procedure on the part of a Subordinate Court.
In this view, neither the inadvertent omission in the cases referred to, to consider whether the appeal presented was barred by the Act of Limitations, nor the refusal to hear evidence, on the ground that the stipulation the patta contains as to the rate of interest is such as clearly vitiates it, appears to me to disclose any ground for interference under Section 622 of the Code of Civil Procedure. I would answer the question accordingly.
12. 'The questions referred relate to two sets of petitions, in the one set the complaint is that the District Judge omitted to observe that the appeals wore time-barred. In the other set it is said that he decided the appeals on points not taken by the parties and without giving them an opportunity to adduce evidence. Arguments were addressed to us at considerable length on the operation of Section 622 of the Civil Procedure Code, and the question raised is one of general importance. By Section 622 power is given to the High Court in certain cases in which no appeal lies to call for the record and pass such orders as the Court may think fit. The cases are three in number. First, the case in which the Court below appears to have exercised a jurisdiction not vested in it by law; secondly, the case in which such Court appears to have failed to exercise a jurisdiction so vested; and, thirdly, the case in which such Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. Treating the section as if it consisted of three clauses, one may say that, as regards the present petitions, the first and second clauses clearly have no application. The question is whether the District Court has acted illegally or with material irregularity within the meaning of the third clause. Numerous cases have been decided with reference to this clause which, it should be observed, did not appear in the section of the original Code of 1877.
13. 'The most important case decided by the Judicial Committee in 1884 is the case of Amir Hassan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6
14. 'The appeal to the Judicial Committee was against an order passed by the Judicial Commissioner of Oudh, reversing the judgment of the Court of First instance and dismissing the plaintiff's suit as being barred under Sections 13 and 43 of the code.
15. The Judicial Committee after quoting the third Clause of Section 622 observed: 'The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity, ft appears that they had perfect jurisdiction to decide the question which was before them and they did decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.' This decision, as I read it, simply amounts to this, that the erroneous decision of the Court of First Instance in that particular case did not constitute an illegality or irregularity within the meaning of Section 622.
16. 'There are two other decisions of the Judicial Committee to which no special reference is required. Muhammad Yusuf Khan v. Abdul Rahman Khan I.L.R. 16 Cal. 749 and Birj Mohun Thakur v. Rai Uma Nath Chowdhry I.L.R. 20 Cal. 8
17. 'The question has been frequently discussed in the High Courts before and since the publication of the decision in 1884 in Amir Hassan Khan's case. I do not think it is necessary to deal with the cases in detail. It is enough to say that the greatest possible diversity of opinions has been expressed. What may be called an intermediate view was propounded by West, J., in an elaborate judgment in Shiva Nathaji v. Joma Kashi Nath I.L.R. 7 Bom. 369 see also Mahmood, J. in Magni Ram v. Jiwa Lal I.L.R. 7 All. 336 In Allahabad, Straight, J. took the extreme view that any error affording a good ground of second appeal within the meaning of Section 584 would equally form a good ground for revision under Section 622, Badmi Kuar v. Dinu Rai I.L.R. 8 All. 114 On the other hand, in this Court a construction has been put upon the section which goes to the other extreme in limiting the powers of the High Court under Section 622. In the judgment reported in Manisha Eradi v. Siyali Koya I.L.R. 11 Mad. 228 Sir T. Muttusami Ayyar, J. reviewed the cases prior to 1887 and held with reference to Amir Hassan Khan's case 'that the last clause of the section must be taken to apply only to those cases in which there is an error of law or a material irregularity in the procedure by reason of which the Subordinate Court concludes that it has or has not jurisdiction.' Compare Magni Ram v. Jiwa Lal I.L.R. 7 All. 336 and Badmi Kuar v. Dinu Rai I.L.R. 8 All. 114
18. In the same year the question was raised again, and the ruling of the Court, in which Kernan, J. took part, can hardly be reconciled with the opinion expressed in the earlier judgment of Sir T. Muttusami Ayyar J. Bhashyam v. Jayaram I.L.R. 11 Mad. 303
19. 'In this state of things, there being no uniform course of decisions on the point, I am bound to form my own opinion, and I must say that I am unable to concur in the narrow interpretation which has been put upon the section. According to the ordinary rules of construction some effect has to be given to the third Clause of the section. That would be so if this clause had been part of the original section, but the intention of the Legislature is still more marked when it is seen that the third Clause was added by way of amendment. In construing the section, we have for our guide the opinion of the Judicial Committee in Amir Hassan Khan's case which may be said to amount to this--that the erroneous decision of a lower Court is not by itself any ground for the exercise by a High Court of the powers given by the section. That decision excludes one class of cases, but, as it appears to me, leaves it open for us to consider in what other cases the clause may be applicable.
20. As I read the decision, it does not compel us to hold that the Court has no power except incases where jurisdiction has been wrongly assumed or declined--cases which, are sufficiently covered by the first two clauses.
21. 'The possible cases to which it might be thought that the general language used by the Legislature was applicable may perhaps be stated as follows: In failing to apply the rule of law which ought, under given circumstances, to be applied, or in applying a rule which ought not to be applied, or generally in disposing of a matter otherwise than in accordance with law, it may be that the Judge has, owing to misapprehension, wrongly concluded that the law was applicable or inapplicable, or that he has proceeded erroneously owing to inadvertence, or again that he was ignorant of the correct rule applicable, or that knowing the correct rule he refused to apply it. In the first two cases, that is where the Judge has exercised his judgment and decided wrongly or where his mistake is due to inadvertence or carelessness, I think that, with the decision of the Judicial Committee before us, we are bound to hold that the High Court has no power to interfere. In the last case, that is where a Judge consciously transgresses the law, the matter stands on a different footing. There is a material distinction between an erroneous judgment and a perverse judgment, as there is between a wrong verdict and a perverse verdict. If a perverse judgment or a conscious departure from the rules of procedure does not give occasion for the exercise of the powers given by the third clause, I am at a loss to understand in what class of cases it can be said that a Judge has acted illegally or with material irregularity.
22. Under the circumstances of the cases referred to us, it is not necessary to say whether the High Court is also at liberty to interfere when it is shown that the Judge has acted in ignorance of the correct rule of law, for it is not suggested that the District Judge did not know the law in any of the cases before us. Perhaps the distinction between ignorance and perversity is not very important, for, while ignorance of a plain rule of law is not likely to be admitted, it would probably in such a case be right to impute knowledge and therefore perversity. On the other hand, it may be noted that the case of a perverse judgment is distinguishable from all the other cases in this respect--that the remedy by way of review is practically unavailable. It may well be supposed that the Legislature did not intend that the High Court should give relief under Section 622 in those cases in which the ordinary relief by way of review was open to the party aggrieved. In the cases before us in which the question of limitation arises, it appears to me that there was nothing more than inadvertence--in the other cases the Judge's procedure was certainly not regular and may possibly have led to injustice. It is by no means clear, however, that the petitioners have been prejudiced, and I do not think it can be said that the Judge acted perversely.
For these reasons I think that in both classes of cases the question should be answered in the negative.
23. 'This reference to the Full Bench was made in consequence of a difference of opinion between Sir T. Muttusami Ayyar, J. and myself as to the correctness of the dictum in Manisha Eradi v. Siyali Koya I.L.R. 11 Mad. 229 which limited the meaning of words 'acts illegally or with material irregularity,' in Section 622 of the Code of Civil Procedure, to errors or irregularities 'by reason of which the Subordinate Court concludes that it has or has not jurisdiction.' It is now admitted that the opinion expressed in the dictum is not tenable, consequently cadit quoestio.
24. 'New ground has, however, now been taken. The first of the points now newly urged is that the words in question are only intended to apply to cases in which the illegality or irregularity is due to 'perversity' on the part of the Judge--the result of wilful disregard or conscious violation by him of a rule of law or procedure, and that they are inapplicable to illegalities or irregularities which are the result merely of ignorance of law or carelessness. This seems to me to be a distinction that is in no way warranted by the language of Section 622. The word 'perverse' is certainly not used in that section, and I am altogether at a loss to understand why this distinction should be made.
The other ground now newly taken is that Section 622 is inapplicable to a case in which it is open to the party aggrieved to apply to the Court which has erred for a review of its judgment. This also seems to me to be limiting the scope of Section 622 within narrower bounds than what is justified by the language used, according to which revision is allowed in all cases 'in which no appeal lies.' The privilege of applying for review of judgment under Section 623 of the Code, is not intended to be compulsory, as is apparent on a perusal of that section. It may be that the Court to which application for revision is made under Section 622 may, in the exercise of its discretion, decline to interfere until application for review has been made under Section 623; but I am not prepared to hold that such application for review is an essential condition precedent to an application under Section 622. I am unable to accept as valid either of the objections now taken, and I adhere to the opinion recorded by me before this reference was made to the Pull Bench.
25. In order to answer the question referred, it is necessary to consider the scope of the last provision in Section 622 of the Code of Civil Procedure. When is the Court to be deemed to have acted in the exercise of its jurisdiction illegally or with material irregularity?
26. I am clearly of opinion that this clause contemplates cases other than those referred to previously in the same section, namely, where the Court has either exercised a jurisdiction not vested in it or refused to exercise a jurisdiction vested in it, and that it is intended to refer to the class of cases where the Court having jurisdiction and exercising it violates a rule of law or of practice relating to procedure, that is, in the mode in which it exercises its jurisdiction. The use of the word 'acted' seems to indicate this to be the true position, and the current of authority in the numerous cases that have been cited at the bar also, I think, bears out this construction. The Privy Council has decided that the clause does not apply to erroneous opinions of law, Amir Hassan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 and that is intelligible upon the principle that, in forming an opinion on a question of law, the Court merely goes through a mental operation and cannot be said to be 'acting.'
27. 'Taking it, then, that the clause is applicable only to errors of procedure, it is not in every case that the High Court would, in the exercise of the discretionary power granted it by the section, interfere in revision. Their interference would be confined to cases where the illegality or one irregularity was such as had occasioned or might occasion a substantial failure of justice.
28. 'Now, in the first case under reference, that of an Appellate Court disposing of a suit on a point taken by itself in appeal without affording the parties an opportunity of proving what was necessary to meet that point, there is, in my opinion, an irregularity in procedure as grave as it would be to decide a suit without hearing the parties at all, and in that view I would hold it to be a 'material irregularity' in procedure within the meaning of Section 622. In the second case, the admission and hearing of an appeal that was time-barred was, in the absence of a special order for its admission, passed after the Court was satisfied that there was sufficient cause for the delay, a patent illegality in procedure, for under Section 4 of the Limitation Act 'every...appeal presented after the period of limitation prescribed therefore...shall be dismissed' subject, of course, to the exception just stated, which did not exist in this case. One of the principles of justice is that there should be finality to litigation in certain events and the law of limitation, among others, supplies instances. So the illegality here was one affecting the interests of justice. In both cases, moreover, apart from theory, there has been, in fact, a failure of justice, because in the allied suits in which a second appeal happened to lie, the Division Bench has set aside the proceedings of the Judge in both the matters now under reference.
I would, therefore, answer the reference in the affirmative, to the effect that the errors in procedure were such as to be liable to revision by this Court under Section 622 of the Code of Civil Procedure.
29. These petitions came on for final disposal after the expression of the opinion of the Full Bench, and the Court delivered the following.