Sadasiva Aiyar, J.
1. These three petitions have arisen out of suits in ejectment brought by the same plaintiff who comes under the definition of a landlord under the Estates Land Act against his tenants. The Court of 1st instance (the District Munsif's Court of Tanuku) was of opinion that a Civil Court had no jurisdiction to try the suits and that under the Estates Land Act, the plaintiff ought to have brought the suits in a Revenue Court. The learned Munsif, therefore, ordered the plaints to be returned to the plaintiff for presentation to the proper Court.
2. On appeal, the Subordinate Judge of Ellore held that under the saving clause to Section 153 of the Estates Land Act, the suits were cognizable by Civil Court. He set aside the District Munsif's orders and directed the District Munsif to take back the plaints, to restore the suits to his file and dispose of them according to law.
3. These Civil revision petitions have been filed praying for the reversal of the learned Subordinate Judge's orders in the suits. Under Order XLIII, Rule 1(a) of the Civil Procedure Code, an appeal lay to the Subordinate Judge's Court from the District Munsif's order returning the plaint in each suit. Under Section 104 of the Civil Procedure Code, Clause 2, a second appeal is prohibited from orders so passed in appeal. Hence, the defendants have come before us by way of Civil revision petitions under Section 115 of the new Civil Procedure Code (which corresponds to the old Section 622).
4. Under Section 115, the High Court has power to interfere if a Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted illegally or with material irregularity, in the exercise of its jurisdiction.
5. The learned Counsel for the plaintiff (respondent), Mr. T. Prakasam, has taken a preliminary objection to the hearing of these Civil revision petitions on the ground that the Subordinate Judge, in hearing and allowing the appeals against the Munsif's orders, neither wrongly clutched at jurisdiction, nor wrongly refused to exercise jurisdiction, that he acted neither illegally nor with material irregularity and hence Section 115 did not apply so as to give the High Court jurisdiction to interfere in revision.
6. The decision of the preliminary objection thus raised is by no means free from difficulty. The leading case on the question of the powers of the High Court to interfere under the old Section 622 is the Privy Council case of Amir Hasan Khan v. Sheo Baksh Singh 11 I.A. 237. But in construing their Lordships' dicta in that case, the High Courts and even the different Benches of the same High Court have not been is agreement.
7. In the case in Dwarka Nath Sen v. Kishori Lal Gosain 14 C.W.N. 703 decided by Mukerjee and Teunon, JJ., the learned Judges say as follows see page 707: 'As pointed out by Stanley, C.J., in Ross Alston v. Pitambar Das (1903) A.W.N. 104 that decision' i.e., the decision of the Privy Council in Amir Hasan Khan v. Sheo Baksh Singh 11 I.A. 237 'is an authority for the proposition that the words 'acted illegally or with material irregularity' do not comprehend a case or decision attacked merely on the ground that it is erroneous in law,--in that particular case, the erroneous decision upon a question of res judicata. The judgment of the Judicial Committee, however, does not furnish any test for determining under what circumstances a Court may be said to have acted illegally or with material irregularity, nor is any general principle deducible from the numerous cases in the reports which are by no means easy to reconcile.' Then the learned Judges go on to say that the phrase acted illegally or with material irregularity' is not limited to cases of procedure only but includes cases of decisions vitiated by an error so palpable as to lead to grave and manifest injustice.'
8. But if the doctrine is thus enunciated so as to enable the High Court to interfere in cases of grave and manifest injustice,' 'it obviously leaves much room for divergence of judicial opinion.' In the case of Ross Alston v. Pitambar Das 25 A.G 509 two learned Judges held that they could interfere under Section 622 with an erroneous decision of the District Judge that a Barrister could be sued for the return of his fees if he did not appear for his client, whereas the third learned Judge (Bannerjee, J.) held that Section 622 did not empower the High Court to interfere with the lower Court's said erroneous decision, as the lower Court had jurisdiction over the suit and could not be said to have acted illegally or with material irregularity simply because it determined a legal question erroneously.
9. In the revision petitions before us, the Subordinate Judge could not be said to have had no jurisdiction to hear appeals against the Munsif's orders returning the plaints for presentation to the proper Court. Assuming that his decision on the interpretation of the saving clause to Section 153 of the Estates Land Act is erroneous, he could not be said to have acted illegally or with material irregularity in the exercise of his jurisdiction though he might have decided erroneously, the question of law. However, as was said in Dwarka Nath Sen v. Kishori Lal Gosain 14 C.W.N. 703 above referred to, several Benches in the several High Courts seem to have held that if the decision on the question of law is so erroneous as to have led to grave and manifest injustice, the High Court had the power to interfere in revision notwithstanding the decision of the Privy Council in Amir Hasan Khan v. Sheo Baksh Singh 11 I.A. 237. The boldest attempt made to minimise the effect of the Privy Council decision was made in Badami kuar v. Dinu Rai (1886) AWN 28 where Straight, J., went so far as to say that the words 'acted illegally' in Section 622 had the very same meaning as the words in Section 584, which empowered the High Court to entertain a second appeal where the Court below had in the exercise of its jurisdiction come to a decision which is 'contrary to some specified law or usage having the force of law.' It is unnecessary to set out the very numerous cases is which conflicting views have been pronounced on this question as to the scope of Section 622. I shall refer to only a few to indicate the irreconcilable conflict. In Kali Charan Sirdar v. Sarat Chunder Chowdhry 7 C.W.N. 545 a Full Bench of the High Court clearly said that the mere fact that the lower Court had fallen into an error of law cannot give jurisdiction to the High Court under Section 622 to interfere in revision. This Full Bench case has almost been ignored by some Division Benches of the Calcutta High Court in later cases. In Duraisami Reddi v. Muthial Reddi 31 M. 458 Miller, J., clearly held that the decree of the Judge of a lower Court cannot be interfered with under Section 622 merely because the Judge had made a mistake in law. In Subramania v. Munusawmi Pillai 18 M.L.J. 249 Sankaran Nair, J., also held similarly. In Mathura Nath Sarkar v. Umesh Chandra Sarkar 1 C.W.N. 626 Meclean, C.J., and Bannerjee, J., held that when a Court of first instance ordered a plaint to be returned for presentation to the proper Court and the Court of Appeal set aside such order, the High Court had no jurisdiction to interfere with such appellate order under Section 622 of the Civil Procedure Code. Now the case of Mathura Nath Sarkar v. Umesh Chandra Sarkar 1 C.W.N. 626 is almost exactly similar to the present revision petitions. In that case also, it was argued by the petitioner's Vakil (Mr. Saroda Charan Mitter, afterwards Mitter, J.,) that if too strict an interpretation be put upon the Privy Council decision of Amir Hasan Khan v. Sheo Baksh Singh 11 I.A. 237 there will be practically no remedy in cases of manifestly erroneous decisions pronounced by lower Courts in cases where no appeal or second appeal lay. It seems also to have been argued that if the High Court can interfere in revision where a Court, against whose decision there is no appeal at all, acts without jurisdiction, the High Court can also interfere where an Appellate court, (against whose appellate decision there is no second appeal) erroneously asks the Court, of first instance to act without jurisdiction or not to act when the first Court really has jurisdiction. But these contentions were overruled by their lordships in that case. I might add that though Bannerjee, J. in a previous case reported at page 617 of the same volume, Mohunt Bhagwan Das v. Khetter Moni Dassi 1 C.W.N. 617 had expressed the view that Section 622 allowed the High Court to interfere with gross and palpable errors of law committed by lower Courts, he did not seem inclined to take the same lax view is the later case reported at page 623.
10. In Zamiran v. Fateh Ali 32 C.G 146 where a District Judge confirmed the order of the Subordinate Judge returning the plaint for want of jurisdiction, the High Court interfered in revision simply because the District Judge committed an error of law in confirming an erroneous decision of the Subordinate Judge as to the Subordinate Judge's jurisdiction. In Meenatchi Achi v. Ananthanarayana Aiyar 26 M. K 224 Benson and Bhashyam Iyengar, JJ., in the third sentence of their judgment thus formulate the objection of the respondent before them to their interference in revision in Civil Revision Petition No. 343 of 1900. 'Civil Revision Petition No. 343 of 1900 does not lie by reason that the appeal did lie to the District Court and that though the Munsif, who passed the order appealed against, acted in the exercise of his jurisdiction with material irregularity, yet the order passed by the District Judge on appeal cannot be revised by this Court under Section 622 of the Civil Procedure Code, though in the exercise of its appellate jurisdiction he (the District Judge) failed to set aside the order appealed against which was erroneous.' Having thus stated the preliminary objection, their Lordships merely say that they overrule it. In a very recent case, Civil Revision Petition No. 612 of 1911 decided by Miller, J., in which [the learned Judge was pressed to set aside the order of a District Judge who in appeal had set aside the order of the District Munsif returning the plaint, the following judgment was delivered: 'I am clear that this petition does not lie under Section 115. There is no illegality or irregularity so far as it can see in the exercise of his jurisdiction by the District Judge. This Code allows only one appeal from the order of the Court of first instance and I am not at liberty to admit a second. Dismissed with costs.' Thus there seems to me a clear conflict between the decision in Meenatchi Achi v. Ananthanarayana Aiyar 26 M.K 224 and that in the recent Civil Revision Petition No. 612 of 1911. I doubt the correctness of those decisions in which it has been held that the words 'acted illegally' in Section 115 would include erroneous decisions of law and not merely decisions in which by reason of erroneous procedure (such as shutting out of evidence or arguments), the party applying in revision was prejudiced in the trial of the case and I also doubt the correctness of those decisions which held that because the question of the jurisdiction of the Court of first instance was involved in the erroneous decision of the Appellate Court, the High Court can interfere in revision with the erroneous decision of the Appellate Court on the footing that the Appellate Court itself acted without jurisdiction by pronouncing an erroneous decision on the question of the jurisdiction of the Court of first instance:
11. As I am given to understand that owing to the passing of the Estates Land Act and to the conflicting views taken as to the jurisdiction of the Civil Courts over ejectment suits by landlords, numerous similar Civil revision petitions have either been filed or are likely to be filed in the High Court, and having in view the conflict of decisions on the exact scope of the provisions of Section 115 of the Civil Procedure Code, I consider it desirable to refer the following questions for the decision of a Full Bench:
(1) What is the exact scope of the meaning of the words 'acted illegally' in Section 115 of the Civil Procedure Code? Has the High Court power to interfere in any class of cases (and if so, which class), where a question of law is wrongly decided by the Court whose decision is attacked in revision?
(2) Has the High Court jurisdiction to interfere under Section 115 where an Appellate Court erroneously decides in the exercise of its admitted jurisdiction as an Appellate Court, that the Court of first instance was or was not competent (i.e., had or had not jurisdiction) to entertain a suit?
Sankaran Nair J.
1 I agree.
2. These petitions coming on for hearing before the Full Bench, the Court expressed the following opinion on 30th August 1912.
3. The second question referred to us covers the present case, and I do not think it advisable to travel outside of it especially as the more general question has been considered by a Full Bench of five Judges in Krishtamma Naidu v. Chapa Naidu 17 M. K 410 and the decision of the majority appears to me to be binding upon the Court as at present constituted. As regards the second question, I am of opinion that the case is not covered by the decisions of the Privy Council and the Full Bench in Amir Hassan Khan v. Sheo Baksh Singh 11 I.A. 237 and Krishtamma Naidu v. Chapa Naidu 17 M.K 410 neither of which deals with errors of law affecting jurisdiction. I think that the High Court is empowered under Section 115 to keep Courts subordinate to it within the bounds of their jurisdiction and to see that they do not refuse to exercise it--functions discharged in England by means of the writs of prohibition and mandamus. No question of jurisdiction arose in Amir Hassan Khan v. Sheo Baksh Singh 11 I.A. 237 or, as it seems to me, was considered by their Lordships. That decision was considered by a Full Bench of five Judges in Manisha Eradi v. Siyali Koya 11 M.K 220 where it was held by the majority that a Small Cause Court Judge, who assumed jurisdiction owing to an error of law as applied to the facts found by him, acted without jurisdiction within the first part of the section. Muthusawmy Iyer, J., with whom Parker, J. concurred, preferred to treat the third part of the section as applicable and held that it applied in cases where the lower Court assumed or declined jurisdiction in consequence of some error of law or of some material irregularity in its proceedings and in no others. In the later Full Bench case in Krishtamma Naidu v. Chapa Naidu 17 M.J 410 Muthusawmy Iyer, J., was of opinion that this was too narrow a construction and agreed with the majority that the third part of the section authorised interference when the decision of the lower Court was perverse. In this case, too, Shephard, J. appears to have considered that all erroneous decisions as to jurisdiction would be covered by the earlier provisions of the section, but if this be not so, there is nothing to show that he would have regarded the third as inapplicable. In Badami Kuar v. Dinu Rai (1886) AWN 28 the majority of the Full Bench were of opinion that the questions to which the present Section 115 applies were questions of jurisdiction only. In Jugobundhu Pattuck v. Jodu Ghose Alkushi 15 C.K 47 the Subordinate Appellate Court in dismissing a suit for want of jurisdiction under an error in law was held to have acted illegally in the exercise of its jurisdiction. The decision in Mathura Nath Sarkar v. Umesh Chandra Sarkar 1 C.W.N. 626 the facts in which are on all fours with the present case, that the High Courts could not interfere, was based on the authority which, as I have already said, does not appear to me to apply to errors in law as to jurisdiction.
4. In Meenatchi Achi v. Ananthanarayam Aiyar 12 M.L.J. 380 which was also a case like the present, the Court, overruled the objection that it could not interfere under the section but without giving reasons. In Zamiran v. Fateh Ali 32 C.K 146 it was held that the lower Appellate Court acted illegally in the exercise of its jurisdiction in affirming the decree of the Court of first instance dismissing the suit for want of jurisdiction owing to an error of law. I am prepared to follow the decisions in support of the view already cited to hold in the case referred to us that the High Court is empowered to interfere under the third part of the section. Cases of jurisdiction, of course, can only come under this part of the section if they do not come under the first or second parts and the contention has been raised before us that a Subordinate Appellate Court acts without jurisdiction within the meaning of the section in deciding under an error of law that the Court of first instance has jurisdiction and directing the latter to re-take the case on its file and dispose of it according to law. This contention is opposed to Mathura Nath Sarkar v. Umesh Chandra Sarkar 1 C.W.N. 626 but the point was not argued there as it was conceded that this part of the section was inapplicable. There could be no doubt that a Court of first instance, which wrongly assumes jurisdiction owing to an error of law, acts without jurisdiction. Similarly it may, I think, be said that an Appellate Court has no jurisdiction to remit for trial to a lower Court cases over which the latter has no jurisdiction and that if it does so under an error of law, it acts without jurisdiction within the meaning of the section. In either view, I answer the second question in the affirmative. I have not considered the propriety of interfering in the present case.
Sundra Aiyar, J.
5. These petitions arose out of three suits instituted by a land-holder to eject the tenant in each case in the District Munsif's Court of Tanuku. The defendants objected to the jurisdiction of the Munsif's Court and contended that the suits should have been instituted before the Collector. The question of the proper Court empowered to try the suits depended on the construction of Section 153 of the Estates Land Act. The District Munsif held that he had no power to entertain the suits and returned the plaints for presentation to the proper Court. An appeal was presented against his order; the Subordinate Judge who heard the appeal put a different interpretation on Section 153 of the Estates Land Act and was of opinion that the plaints were rightly presented to the District Munsifs Court. He passed the following order: 'The Lower Court's order is, therefore, set aside with a direction to the District Munsif to take back the plaint, restore the suit to its file and dispose of the same according to law.' The defendant applied to this Court under Section 115 of the Civil Procedure Code to set aside the Subordinate Judge's order on the ground that the Munsif's view on the question of jurisdiction was right and that the Subordinate Judge was wrong. The petitions came on for hearing before Sankaran Nair and Sadasiva Aiyar, JJ. The learned Judges holding that there was a conflict of judicial opinion on the question whether the Subordinate Judge could be held, in passing his order, to have exercised a jurisdiction not vested in him or to have acted illegally in the exercise of his jurisdiction and that there was a great diversity in the opinions of the Judges as to, the right interpretation to be put on the words 'acted illegally' in Section 115 of the Civil Procedure Code, referred the following questions for the decision of a Full Bench.
(1) What is the exact scope of the meaning of the words acted illegally' in Section 115 of the Civil Procedure Code? Has the High Court power to interfere in any class of cases (and, if so, which class) where a question of law is wrongly decided by the Court whose decision is attacked in revision?
(2) Has the High Court jurisdiction to interfere under Section 115 when an Appellate Court erroneously decides, in the exercise of its admitted jurisdiction as an Appellate Court, that the Court of first instance was or was not competent (i.e., had or had not jurisdiction) to entertain a suit?.
6. The second question alone arose for decision in the petitions before the learned Judges who made the reference. The first question is very wide in its scope. It is doubtful whether it is possible, or desirable, if possible, to attempt an exhaustive definition of the expression 'acting illegally in the exercise of jurisdiction,' The question was considered by a Full Bench of five Judges of this Court in Krishtamma Naidu v. Chapa Naidu 17 M.K 410. Their opinions were not unanimous. We considered it desirable in the circumstances to give our answer only to the second question referred for our opinion on this case and to abstain from dealing with the wider point raised in the first question.
7. So far as the second question is concerned, Miller, J., in a similar case, Civil Revision Petition No. 612 of 1911, held that there was no illegality or irregularity in the exercise of is jurisdiction by an Appellate Court in setting aside an order returning the plaint for presentation to the proper Court and remanding the suit to the Court of first instance for adjudication according to law. It was apparently not urged before the learned Judge that there was an exercise of jurisdiction not vested in the Appellate Court at any rate he pronounced no opinion on that question. In Mathura Nath Sirkar v. Umesh Chandra Sirkar 1 C.W.N. 626 Maclean C.J., and Banerjee, J., held the same view as Miller, J. and on the same grounds Maclean, C.J., observed: 'it is conceded also by the appellant's Pleader that the learned District Judge in doing what he did was clearly acting within his jurisdiction, and the point urged is this, that if he did anything, he committed an error in law alone.' Benerjee, J., also considered only the question whether there was an illegal exercise of jurisdiction. He said: 'it may seem anomalous that where a Court acts without jurisdiction, it may be set right under Section 622 but where it directs another Court to do so, its order is not open to revision under that section. But the anomaly, so far as cases like the present are concerned, has been removed by Section 646(6), which shows that the remedy in such a case, supposing the petitioner's contention to be right that the case was triable by the Court of Small Causes, lies in the course prescribed by that section, and not in an application under Section 622.' This observation would not apply where the question of jurisdiction does not arise on account of a doubt as to whether a case is of small cause nature or not. Section 646(b) or the corresponding section in the present Procedure Code would have no application, for instance, to the present case. In Zamiran v. Fateh Ali 32 C. 146 it was held that where an Appellate Court, disagreeing with the opinion of the Court of first instance that it had no power to try the suit, directs it to do so, the High Court could interfere under its revisional powers but the ground of interference was that the Court acted illegally in holding that the Court of first instance had jurisdiction. On the same ground of illegal exercise of jurisdiction, the Allahabad High Court interfered in Badami Kuar v. Dinu Rai (1886) A.W.N. 28 where both the lower Courts held that the Court of first instance had no jurisdiction to try the suit and also the Calcutta High Court in Jugobundhu Pattuk v. Jadu Ghose Alkushi 15 C.J 47. In Vishvanath Govind Deshmane v. Rambhat 15 B.M 148, where the Court of Appeal agreed with the first Court that the latter had no jurisdiction, the Bombay High Court held that the High Court had power to interfere under Section 622 (Act XIV of 1882). The reason given was, in the words of the Court, 'The Subordinate Judge has refused to exercise jurisdiction which, if he is wrong, is by law vested in him, and we can examine his order to see if he is right in his refusal.' It is not explained whether the District Court, in holding that the Subordinate Judge had no jurisdiction, failed to exercise a jurisdiction vested in it (District Court) or acted illegally in the exercise of its jurisdiction. In Khatija Bi v. Babu Sahib 15 M.L.T. 409 which was decided by Benson, J. and myself, we held that where the first Court, owing to an error of law, failed to exercise a jurisdiction vested in it and the Appellate Court taking the same view of the law confirmed the order, the Appellate Court must also be held to have failed to exercise a jurisdiction vested in it. But the point was not examined at length in the judgment. In Minatchi Achi v. Ananthanarayana Aiyar 12 M.L.J. 380 it was held that if an Appellate Court fails to set aside an order of a Munsif who acted with material irregularity in the exercise of his jurisdiction, the High Court had power under Section 622 to set aside the Appellate Court's order; but it was not explained whether the reason was that the Appellate Court must be held, in confirming the first Court's order, to have committed the same material irregularity as the first Court or that the Appellate Court must be taken to have failed to exercise a jurisdiction vested in it by not setting aside the first Court's order. So far it will be observed that all the cases, in which the High Courts interfered to set aside an order of an Appellate Court relating to the question of the jurisdiction of the first Court, have not proceeded on the ground that the Appellate Court exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it. Apparently, the attempt to induce the High Court to interfere was based in the arguments at the Bar in those cases on the ground that there was an illegal exercise of jurisdiction by the Appellate Court. I cannot, therefore, but be diffident in arriving at the conclusion to which my reasoning has led me that in such cases the High Court has power to interfere under the first part of Section 115 of the Civil Procedure Code (Section 622 of the repealed Code), that is, on the ground that the Appellate Court has exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it. With all deference, I cannot but think that insufficient attention has been paid in the consideration of the High Courts' powers under Section 115 to the true nature of the functions performed by an Appellate Court. It is not denied that if a Court, by an error of law in deciding whether it had jurisdiction, exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it, the High Court has power to interfere under Section 115 of the Civil Procedure Code and that its right of interference cannot be objected to on the ground that the Court has jurisdiction to decide whether it has jurisdiction over the cause or not and that an erroneous decision on the question is a mere error of law which the High Court cannot rectify according to the decision of the Judicial Committee of the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh 11 I.A. 237. See Manisha Eradi v. Siyali Koya 4 Q.B. What is contended is that though an error of the Court regarding its own jurisdiction can be rectified, the mistake of an Appellate Court concerning the jurisdiction of the Court of first instance cannot be set right under Section 115 of the Civil Procedure Code. It is argued that the Appellate Court in an appeal from an adjudication of the first Court concerning its jurisdiction merely decides whether that adjudication is right or wrong, that the matter before it is nothing more nor less than the order of the first Court regarding its jurisdiction and that the Appellate Court pronouncing its own decision on the question exercises no jurisdiction over the cause itself which was before the first Court and that, therefore, the first part of Section 115 would be inapplicable. I am of opinion that this is an entirely wrong view of the matter. Order XLI, Rule 32 (Section 577 of the old Code) enacts that 'the judgment (of the Appellate Court) may be for confirming, varying or reversing the decree from which the appeal is preferred.' Section 107, Clause (1) (Section 582 of the old Code) provides: 'Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--(a) to determine a case finally, (6) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken.' Clause (2) says: 'Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.' Section 108 extends the provisions of the Code relating to appeals '(a) from appellate decrees, and (6) from orders made under this Code or under any special or local law in which a different procedure is not provided.' Order XLIII, Rule 2, mikes the rules of Order XLI applicable to appeals from orders. It is quite clear that the Civil Procedure Code has accepted and carried out the well established principle that an appeal is the continuation of the proceedings in the original Court, that those proceedings are removed to the Court of Appeal and that the proceeding in the Appellate Court are in the nature of a re-hearing. In the case of second appeals, no doubt, the High Court does not possess plenary powers of dealing with the case and it cannot be said in such cases that the cause is re-heard in full but this does not affect the general principles regulating the functions of an Appellate Court or the powers and duties of a Court of first appeal. See Queen v. Madhub Chunder Giri Mohunt 21 W.R. Cr. 13 and In re Goomanee and Ors. 17 W.R. Cr. 59 where the functions of a Court of Appeal in criminal cases are explained. Kirani Ahmedula v. Subabhat 8 B.K 28 relates to the functions of Appellate Court in cases where a discretionary power is vested in a Court. An Appellate Court is entitled to take cognisance of facts which occurred subsequent to the decision of the first Court. See Sakkaram Mahadev v. Hari Krishna Dange 6 B.K 113 and Ram Pershad Ojha v. Bhurosa Koonwar 9 W.R. 328 No doubt, there are express provisions restricting the powers even of a Court of first appeal such as in the matter of the right to admit additional evidence, bat such restrictive provisions are mere rules of procedure similar to provisions relating to procedure in the Court of first instance. In Kristnamachariar v. Mangammal 28 MK 91 Bhashyam Aiyengar, J., observes: 'When an appeal is preferred from a decree of Court of first instance, the suit is continued in the Court of Appeal and re-heard either in whole or in part, according as the whole suit is litigated again in the Court of Appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance.' Later on, he says: 'When an appeal is preferred, the Court of Appeal is really seized of the whole suit though the relief given by it will be limited to the portion of the decree appealed against or objected to under Section 561, Civil Procedure Code.' The same principle is adopted with regard to the functions of the Court of Appeal in England. Order LVIII, Rule 4, of the Judicature Act lays down that the Court of Appeal has the same power of drawing inferences etc., as the High Court, 36 and 37 Victoria, Chapter 66, Section 75, enacts that for all purposes incidental to hearing and determination of any appeal within its jurisdiction and the management, execution and enforcement of any judgment or order made on such appeal and for the purposes of any other authority expressly given to the Court of Appeal, it shall have all the powers, authority and jurisdiction vested in the High Court of Chancery. Order XLI, Rule 33, enacts that the Appellate Court should pass the order which the first Court should have passed and has full power to pass such other order as may be necessary to do justice between the parties before it. Walter Clark, the learned author of the article on Appeal and Error in the Cyclopedia of American Law and Procedure, Volume II, observes at page 516 that in its original and technical sense 'an appeal was a proceeding, introduced into equity practice from the civil law, by which the whole cause was removed from a lower to an Appellate Court, and there tried de novo upon evidence newly introduced, being subjected to a new and final determination as if it had not been tried before, and without any reference to the conclusion of the inferior Court. The object of the Common Law writs of error was to review and correct any error of law committed in the proceedings.' The learned author points out that the appeal established by statute in most of the States of the United States has some of the characteristics both of the equitable remedy of an appeal and of the writ of error. In India, a first appeal is similar to the equitable remedy of an appeal in England. The Appellate Court indeed has not got to and cannot re-hear the suit de novo upon fresh evidence and without any reference to the conclusion of the inferior Court. The extent of its powers is fully described in the Civil Procedure Code. The provisions in the Code, that I have already referred to, conclusively show that its functions and powers are similar to those of the first Court. When, therefore, a suit has been disposed of by the first Court and an appeal is preferred, the Court of Appeal is seized of the cause and has the powers and duties of the first Court. It must, of course, be remembered that all appeals are not appeals in which the whole cause in the first Court is brought before the Appellate Court. While the cause still remains in the Court of first instance, particular proceedings before it may be brought before the Appellate Court. Such matters are set out in Section 104 and Order XLIII, Rule 1 of the Civil Procedure Code. For instance, if there is an appeal against an order appointing or refusing to appoint a Receiver, the suit in which the question arises remains in the hands of the first Court and only the proceedings relating to the appointment of the Receiver are removed to the Appellate Court; and the powers possessed by the Appellate Court, similar as they are to those of the first Court, would relate only to the proceedings removed to it. If the consequence of an order passed by the first Court is to bring the proceedings there to a close, then the appeal to the Appellate Court has the effect of bringing up the whole cause before it. Where a suit has been dismissed by the first Court on a preliminary point and an appeal is lodged against the dismissal, the suit itself is before the Court of Appeal. That this is the effect according to the contemplation of the Legislature is clear from the provisions of Order XLI, Rule 23 and from Section 107 already referred to. The former provision gives the Appellate Court, where the decision of the first Court on a preliminary point is reversed, power, if it thinks fit, to remand the case, while the latter provision invests it with plenary powers to deal with the appeal in any other manner if it thinks fit to do so. It may determine the case finally, frame issues and refer them for trial and take additional evidence or require such evidence to be taken in the exercise of its ample discretion; and Clause (2) of Section 107 invests it with all the powers of the first Court. A remand is to be made only if the Appellate Court thinks fit to do so according to Order XLI, Rule 23. Notwithstanding, therefore, that the decision of the first Court was confined to the adjudication of a preliminary point and the appeal is against that adjudication, the Appellate Court is seized of the whole cause. When the Court of first instance, holding that it had no jurisdiction to try a suit, returns the plaint for presentation to another Court its order terminates the proceedings in the suit before it. The order is tantamount to a dismissal of the suit for all practical purposes: the object of returning the plaint is merely to enable the plaintiff to present the same instrument in another Court and avoid the payment of fresh Court-fees, a concession made to him on the ground that he has already paid Court-fees for the complete adjudication of the cause. If there were no provision in the Code for the return of the plaint and the Court dismissed the suit on the ground of want of jurisdiction, the appeal against the dismissal would be dealt with under Order XLI, Rule 23. In consequence of the concession made in plaintiff's favour allowing the return of the plaint to him, it was found necessary to provide specially for an appeal against the order. But all this does not alter the substantial character of the order returning a plaint on the ground of absence of jurisdiction in the first Court or of the appeal against such order. The suit being at an end so far as the first Court is concerned and nothing being left there, the appeal has the effect of removing the whole cause to the Appellate Court. If the Appellate Court decides that the first Court has jurisdiction to try the suit, then it directs the latter Court to proceed with the trial of the suit. This it is able to do only because it has cognizance of the suit itself. Having regard to Section 108, making the provisions relating to appeals from decrees applicable to appeals from orders and to the fact that under Section 107 it has the power both to determine a cause finally and to remand a case, it is by no means clear to me that when the Appellate Court comes to the conclusion that an order of the first Court returning a plaint is wrong, it cannot determine the case finally itself. But, however that may be, I have no doubt that the Appellate Court is seized of the cause whatever may be the mode prescribed for its disposal of the cause. There is no provision in the Code laying down what the Appellate Court should do when it reverses any particular order of the first Court against which an appeal lies. What is its duty in such a case? It appears to me the answer must depend on what duty will lie upon it as a Court having cognizance of the cause when the particular order of the first Court has been reversed. If the order of the first Court put an end to the proceedings before that Court, then I think that Section 107 gives the Appellate Court plenary powers in dealing with the appeal. If the order is of an interlocutory character and the cause itself is still in the hands of the first Court, the Appellate Court will have power to pass such orders as would naturally follow from the reversal of the order appealed against. Order XLI, Rule 23, provided that an Appellate Court remanding a suit to the first Court may direct what issue or issues may be tried in the case remanded. This shows that it has power to deal with the cause generally and that its authority is not confined to the decision of the correctness or otherwise of the adjudication on the preliminary point. In this case, the Subordinate Judge, after reversing the decision of the Munsif on the question of jurisdiction, directed him to try the suit on the merits. How could he do so without taking cognizance of the suit itself? It was argued for the respondent that the authority to reverse the decision on the question of jurisdiction must be taken to give power impliedly to direct the first Court to do what follows on the reversal. But would not the Legislature have made specific provision giving the Appellate Court any farther powers if the appeal itself was intended in the contemplation of the legislature to do no more than to enable the Appellate Court to deal with the particular question decided by the Munsif? In my opinion, the Legislature considered it unnecessary to make any provision of the kind because of the general powers of an Appellate Court which are embodied in Section 107 of the Code. The Subordinate Judge, therefore, in passing the order of remand took cognizance of the cause. He did so on account of an error in the decision of the question of law on which the jurisdiction of the first Court and his own jurisdiction to take cognizance of the case depended. This view would obviate the anomaly pointed out by Banerjee, J., in Mathura Nath Sarkar v. Umesh Chandra Sarkar 1 C.W.N. 626. Section 115 was clearly intended to enable the High Court to exercise its powers of revision where any question of jurisdiction either of the first Court or the Appellate Court was concerned; and if we bear in mind the nature of the powers and functions of a Court of appeal, there would be no difficulty in giving effect to the object of the section. I am, therefore, of opinion that the High Court has power to rectify the erroneous decision of the Appellate Court under the first part of Section 115, i.e., on the ground that the Appellate Court in this case exercised a jurisdiction not vested in it in holding that the Munsif ought to have tried the suit on the merits and in directing him to do so.
8. In the view I have taken of the case, it is unnecessary for me to consider whether the Appellate Court can be said to have acted illegally in the exercise of its jurisdiction in directing the first Court to take cognizance of the suit and to adjudicate on the merits. Great and almost irreconcilable diversity of opinion has prevailed with respect to the interpretation to be put on the word 'illegally,' The Judicial Committee of the Privy Council in Amir Hasan Khan v. Sheo Bakhsh Singh 11 I.A. 237 decided that it was not every error of law which would justify the High Court in interfering under Section 115. But their Lordships did not proceed to state whether any and what error of law would amount to acting illegally in the exercise of jurisdiction. The error which the High Court rectified in the case before their Lordships related to the finding of the lower Court on a question of res judicata. A wrong decision on such a question would lead to a fresh adjudication between the parties but need not necessarily result in a failure of justice. Whether their Lordships meant no more than that an error which need not lead to a failure of justice would not be a good ground for interference, it is difficult to say. The High Courts have sometimes laid down that gross and palpable errors leading to grave and manifest injustice may justify interference consistently with the decisions of the Privy Council. See Dwarka Nath Sen v. Kishori Lal Gosain 14 C.W.N. 703 and Mahunt Bhagwan Ramanuj Das v. Khetter Moni Dassi 1 C.W.N. 617. Straight, J., indeed went further and held the opinion that any error which could be rectified in second appeal would also be a proper ground for interference under Section 115 of the Civil Procedure Code. See Badami Kuar v. Dinu Rai (1886) A.W.N. 28. This is not reconcilable with the decision of the Privy Council; see Kali Charan Sirdar v. Sarat Chunder Chowdry 7 C.W.N. 545; Duraisami Reddi v. Muthial Reddi 7 C.W.N. 545; Subramniya v. Munisaw ni Pillai 18 M.L.J. 249. We are, of course, bound to presume that the Judicial Committee had full regard to the history of the legislation on the point, including the facts that Section 622 of Act VII of 1877 did not contain the words 'or to have acted in the exercise of its jurisdiction illegally and with material irregularity' and that these words were inserted by Section 92 of the Amending Act XII of 1879. It appears to me to be quite possible that what their Lordships meant to lay down was that the object of the amended section was to confer a discretionary power on the High Court to correct manifest injustice brought about by palpable errors and that the High Court should not interfere on the mere ground of an error of law in the decision of the lower Courts. The powers conferred on the High Court under Section 115 are similar to those possessed by the High Courts in England to prevent injustice by the writs of certiorari, prohibition and mandamus. I do not propose to review the decisions which have attempted to place a meaning or no meaning on the expression 'acting illegally' as I am prepared to hold that this Court has power to interfere under the first part of Section 115, But it may be taken to be well-established that the decision of the Privy Council will not justify the refusal to give any effect to the words 'acting illegally' and that it would not be right to confine the right to interference to cases of irregularity in procedure where the first part of the section would not be applicable. In Krishtamma Naidu v. Chapa Naidu 17 M. K 410Collins, C.J., Muthuswami Aiyar, J., and Shepherd, J., held that a perverse decision on a question of law or procedure, that is, a conscious departure from some rule of law or procedure, would amount to acting illegally or with material irregularity. Best, J., held that if the Court itself took a point of law in appeal without affording the parties an opportunity of proving what was necessary to meet it, that would be an irregularity within the meaning of Section 622 and that an inadvertent admission of an appeal that is time-barred would be an illegality within the section. Davies, J., was of opinion that interference under the section should be confined to cases where the illegality or irregularity is such as might occasion a substantial failure of justice. I do not think that the case can be taken to have laid down an exhaustive definition of the causes which would justify an interference under the section. Cannot an error of law, which makes the Court confer jurisdiction on a subordinate Court, be taken to amount to acting illegally in the exercise of jurisdiction?' Such an error is of the most serious kind affecting what is regarded as the vital point in all litigation. I should be disposed, if necessary, to say that an erroneous holding on such a point would amount to acting illegally in the exercise of jurisdiction'. But, I think it is unnecessary to place reliance on the latter part of Section 115 to justify the interference of the High Court in such a case. My answer to the second question referred to the Full Bench is in the affirmative for the reasons given above.
Sadasiva Aiyar, J.
9. In the order of reference to the Full Bench, I have set out my reasons for doubting the correctness of the decisions which have shown an inclination to hold.
(a) that the words acted illegally' in the old Section 622 [new Section 115], Clause (c) might include cases of mere erroneous decisions on questions of law and;
(b) that if the erroneous decision of law related to the question of the jurisdiction of a Court other than that of the Court which gave the erroneous decision, it might be even brought under Clauses (a) and (6) of Section 115, which use the words to have exercised a jurisdiction not vested in it by law' and 'to have failed to exercise a jurisdiction so vested'.
2. My doubts have been only confirmed by the arguments advanced before the Full Bench. Section 115 seems to me to permit the High Court to interfere only on three specific grounds, viz:
(a) where the Court whose decision is sought to be revised has exercised a jurisdiction not vested in it by law;
(b) where it has failed to exercise a jurisdiction so vested, or
(c) where it has acted in the exercise of its jurisdiction illegally or with material irregularity.
3. Now, in the present cases, the Appellate Court had jurisdiction and was bound to hear the appeal preferred to it from the order of the District Munsif returning the plaint to be presented to the proper Court. The party aggrieved by the District Munsif's order was entitled, under Order XLIII, Clause (a), to appeal to the Appellate Court. The Appellate Court was bound in the exercise of its jurisdiction to come to a conclusion whether the Munsif was right or wrong in returning the plaint to be presented to another Court. To arrive at either conclusion clearly involves the arriving at a finding as to the jurisdiction or want of jurisdiction in the District Munsif to try the suit himself. I am perfectly clear that Clauses (a) and (6) of Section 115 can only apply to the jurisdiction of the Court whose order or decree is sought to be revised to pass such order or decree and not to its decision on the jurisdiction of some other Court. I entirely agree with the observations of Maclean, C.J. in the case of Mathura Nath Sarkar v. Umesh Chandra Sarkar 1 C.W.N. 626 on this point and of Mr. Justice Miller in the case quoted in my order of reference. The argument that as every Court has jurisdiction to decide as a preliminary question its own jurisdiction before going into the other questions in the case, Clauses (a) and (6) of Section 115 would become unmeaning and useless, does not in the least impress me as creating any difficulty, for, the revising Court doss not and need not deal with the preliminary opinion of the revised Court giving itself jurisdiction but with the decree or order of the revised Court which was passed after it erroneously gave itself jurisdiction and which decree or order was really passed without jurisdiction, though the revised Court might have erroneously thought that it had jurisdiction. Whether the revised Court considered at all the question whether it had jurisdiction or ignored the point altogether, the revising Court can come to its own conclusion and set aside the decree or order passed without jurisdiction.
4. I also feel great difficulty in following the argument that where the Appellate Court deals with an appeal from an order of the Munsif returning a plaint to be presented to the proper Court and comas to an erroneous decision, it (the Appellate Court,) wrongly gives itself or with holds from itself jurisdiction over the trial of the suit, simply because its order decides that the Munsif has, or has not, jurisdiction to try the suit.
5. I think that the Privy Council case in Amir Hasan Khan v. Sheo Baksh Singh (I) followed by the Full Bench of the High Court in Krishtamma Naidu v. Chapa Naidu 17 M.K 410is binding on us, that these decision, if loyally followed, do not empower us to interfere in revision with orders and decrees of the lower Courts which merely involve an erroneous decision of law (whether the law relates to a question of res judicata, as in the Privy Council case or to the jurisdiction of some other Court as in this case) and that while we may be reasonably astute in trying to get round precedents if parties would be left entirely remediless otherwise, we could not get over the plain implications of the Privy Council decision. Especially in cases of orders passed in matters which are really or substantially of an interlocutory character and which leave room for parties to come in the regular course before us at later stages, should we refuse to clutch at revisional jurisdiction. In the present case, the lower Court's decision as to the Munsif's jurisdiction, assuming it for argument's take to be erroneous, can be set aside when the matter is brought before us on second appeal after the Munsif decides the suit in obedience to the Subordinate Judge's appellate order now sought to be revised.
6. I shall further make a short reference to some of the latest cases before concluding. In Venkatasubbiah v. Seshachallam 22 M.L.J. 136 it was held that the District Munsif's order refusing to allow amendment of a plaint cannot be revised under Section 115. In Ramgopal Jhoonjhoonwalla v. Joharmall Khemka 15 Ind. Cas 547 an erroneous decision as to limitation was held not revisable. In Ramjas Agarwala v. India General Navigation and Railway Company Ld. 16 C.W.N. 424 the refusal to frame and try a requisite issue was held revisable. In Venkata Subramaniam v. Kanchi Raju 12 Ind. Cas. 138 Abdur Rahim, J., refused to interfere in revision where the lower Court had misconstrued Section 87 of the Negotiable Instruments Act.
7. In the result, I would give the following answer to the questions referred to the Full Bench. On the first question, the words 'acted illegally' mean giving a wilfully perverse decision on a question of law as stated in Krishtamma Naidu v. Chapa Naidu 17 M. K 410 and not a mere erroneous decision on a question of law. On the second question, I hold that the erroneous decision of the Appellate Court on the question of the jurisdiction of the first Court does not come under any of the three Clauses (a), (b) and (c) of Section 115, that the Appellate Court cannot, by any reasonable use of language, be held in such a case to have exercised a jurisdiction not vested in it (the Appellate Court) by law or to have failed to exercise a jurisdiction so vested (in itself) and that according to the cases in Amir Hasan Khan v. Sheo Baksh Singh 11 I.A. 237 and Krishtnamma Naidu v. Chapa Naidu 17 M. K 410 it cannot be said to have acted illegally or with material irregularity in the exercise of its jurisdiction.
9. These petitions coming on for final hearing before Sankaran Nair and Sadasiva Aiyar, JJ., the Court delivered the following
10. The suit is brought by the plaintiff, a 'landholder', as defined in the Madras Estates Land Act, to eject the defendant who is alleged in the plaint to be a tenant of old waste let into possession before the Act came into force. The question is whether the Civil Courts have jurisdiction to entertain such suits. It is rightly conceded they have no jurisdiction if such suits could be brought before the Collector. The defendant is, according to the plaintiff, a non-occupancy tenant. Under Section 157, a suit to eject him may be brought before a Collector for the reasons given in that section. The last clause provides that nothing in the section shall affect the liability of a non-occupancy ryot to be ejected on the ground of expiry of the term of a lease granted before the passing of Act. The respondent's Pleader contends that this provision shows that the section itself does not apply and, therefore, this suit cannot be brought before a Collector. If that is so, we see no other section which gives aright of suit. Section 157, on which the Pleader relies, only states that a tenant of old waste can be ejected as stated therein. That section does not limit the scope of Section 153. We must, therefore, disallow this contention, set aside the order of the Subordinate Judge and restore that of the District Munsif with costs in this and the lower Courts.