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Ralyaram Melaram, a Firm and anr. Vs. Kaluram Agarwalla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Rule No. 982 of 1948
Judge
Reported inAIR1950Cal149
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 6, Rule 5
AppellantRalyaram Melaram, a Firm and anr.
RespondentKaluram Agarwalla and ors.
Appellant AdvocateAtul Chandra Gupta and ;Sailendra Nath Banerjee, Advs.
Respondent AdvocateS.M. Bose, ;Apurbadhan Mukherjee and ;Chandra Narain Laik, Advs.
DispositionApplication dismissed
Cases ReferredJoy Chand Lal Baou v. Kamalaksha Chaudhury
Excerpt:
- .....the defendants however invited this application by pleading in the manner inwhich they did.5. the learned subordinate judge disposed of the matter in a rough and ready method. he seems to have held that particulars could be ordered of any matters within the knowledge of the defendants, whereas particulars could not be ordered of any matters known to the plaintiffs. this appears to me to be a somewhat odd rule to apply on the question of particulars. strictly, many of these allegations made in the written statement should have never been there as they merely amounted to a statement of the evidence which the defendants proposed to produce. that being so, i do not think that on the merits any of the particulars should have been ordered.6. the advocate-general however on behalf of the.....
Judgment:

Harries, C.J.

1. This is a petition for revision of an order made by a learned Subordinate Judge of Asansol ordering the defendants to supply certain particulars of the written statement filed by them.

2. A suit was filed by the plaintiffs in the Court of the Subordinate Judge in which they prayed for the cancellation of a lease dated 21st May 1946, executed and registered by a predecessor of the plaintiffs. It was alleged that on 22th April 1946 the predecessor of the plaintiffs as karta of a joint family entered into an agreement with defendant 2 for the grant of a lease of certain coal bearing lands. On 21st May 1946, this lease was actually executed by the predecessor of the plaintiffs.

3. The plaintiffs alleged that at the time of the agreement another lease was produced and it was agreed that the terms of the proposed lease would be the same as those in the lease which was produced. Defendant 2, it is said, was to draft the lease which he did. The allegation is that he presented a draft lease to the plaintiffs' predecessor representing that its terms were in accordance with the lease which had been produced by the plaintiffs earlier. The plaintiffs relying upon the representation executed the lease which was later registered, but then found that the terms were very different from the terms of the lease which were to be copied in the lease in question.

4. The defence was a denial of these allegations and it was pleaded that the final draft was actually settled by the plaintiffs' own pleader and that the pleader was present when the lease was executed and registered. Unfortunately, however, in the written statement a good deal of matter was pleaded which was in fact nothing more than evidence. The application for particulars was an application for particulars of these statements which really amounted to the pleading of evidence. The defendants however invited this application by pleading in the manner inwhich they did.

5. The learned Subordinate Judge disposed of the matter in a rough and ready method. He seems to have held that particulars could be ordered of any matters within the knowledge of the defendants, whereas particulars could not be ordered of any matters known to the plaintiffs. This appears to me to be a somewhat odd rule to apply on the question of particulars. Strictly, many of these allegations made in the written statement should have never been there as they merely amounted to a statement of the evidence which the defendants proposed to produce. That being so, I do not think that on the merits any of the particulars should have been ordered.

6. The Advocate-General however on behalf of the plaintiffs has contended that this Court cannot interfere by way of revision under Section 115, Civil P. C. and his argument is that at most all that can be said is that the learned Subordinate Judge decided this application wrongly, and such a decision does not give this Court a right to interfere in revision.

7. Order 6, Rule 2, Civil P. C. provides : 'Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.'

8. As I have already stated, the written statement offends against Rule 2 of Order 6 in that the defendants pleaded evidence which the rule forbids them to do.

9. Order 6, Rule 5 provides :

'A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.'

10. The learned Advocate-General has contended that if the learned Subordinate Judge has erred in this case, which he does not concede, he merely erred in applying the provisions of Order 6, Rule 6. In other words, he failed to decide the case in accordance with this rule, but decided it wrongly and not in accordance with law. That, the learned Advocate General contends, does not give this Court a right to interfere under Section 115, Civil P. C.

11. Section 115, Civil P. C. is in these terms :

'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 appeallies 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 as it thinks fit.

12. Mr. Atul Gupta on behalf of the petitioners does not contend that this case comes with in Section 115 (a) or (b). He has urged however that the case falls within Section 115(c) as the learned Subordinate Judge acted in the exercise of his jurisdiction illegally. There can be no doubt that the learned Subordinate Judge had jurisdiction to entertain this application and no complaint can be made that he did entertain it. All that can be said is that he did not decide the application correctly and that he ordered particulars to be given by the defendants where such particulars ought not to have been ordered. The question arises whether in those circumstances it can be said that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally. If a Judge who decides a case wrongly and not in accordance with law can be said to act in the exercise of his jurisdiction illegally then the present case would fall within Section 115(c), Civil P. C. But it has been expressly held by their Lord. ships of the Privy Council that a Court has jurisdiction to decide a case not only rightly but wrongly. In Rajah Amir Hassan Khan v. Sheo Baksh Singh, 11 I. A. 237: (11 Cal 6 P. C.). It was held by their Lordships that where the Judges of the lower Courts have jurisdiction to decide a question and decide it, no appeal lying from such decision, the Judicial Commissioner has no power under Section 622 of Act X [10] of 1877, as amended by Section 92 of Act XII [12] of 1879 (similar to Section 115), to call for the record of the case and pass an order therein, unless the Judges of the lower Court have acted illegally or with material irregularity. At page 289 Sir Barnes Peacock, who delivered the judgment of the Board, observed:

'But Section 622 of Act X (10) of 1877 enacted that 'the High Court', and in this respect the Judicial Commissioner, exercises the same powers as the High Court--'may call for the record of any case in which no appeal lies to the High Court if the Court by which 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, and may pass such order in the case as the High Court thinks fit. By Section 92 of Act XII (12) of 1879 that section was amended by the insertion after the words 'so vested' of the following words, 'or to have acted in the exercise of its jurisdiction illegally or with material irregularity.' 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. It 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.'

13. It will be seen from these observations that the Board were considering the meaning of the words 'or to have acted in the exercise of its jurisdiction illegally or with material irregularity,' the words which appear in Section 115(c). Their Lordships held that deciding a case wrongly was not acting in the exercise of jurisdiction illegally. The meaning of that phrase was the only point before the Board and the case is a clear decision on the question as to whether or not a Court can be said to have jurisdiction to decide a case or a point wrongly. The decision establishes beyond all doubt that a Court has jurisdiction to decide a case rightly or wrongly.

14. The meaning of Section 115 was again considered by their Lordships of, the Privy Council in the case of Balalkrishna Udayar v. Vasudeva, Aiyar, 44 I. A. 261: (A. I. R. (4) 1917 P. C. 71). At page 267 Lord Atkinson who delivered the judgment of the Board observed:

'As to the preliminary objection, Section 115, Civil P. C., enables the High Court, in a case in which no appeal lies, to call for the record of any case if the Court by which the case was decided appears to have acted in the exercise of a jurisdiction not vested in it by law, or to have failed to have exercised a jurisdiction vested in it, or to have exercised its jurisdiction illegally or with material Irregularity, and further enables it to pass such an order in the case as the Court may think fit.

It will be observed that the section 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.'

15. Again the Board make it clear that the section is not concerned with erroneous conclusions of law or fact in which the question of jurisdiction is not involved. In the present case no question of jurisdiction is involved. All that was involved was whether in the circumstances certain particulars should be ordered or not. It seems to me that a wrong decision upon this question has nothing whatsoever to do with jurisdiction and cannot be revised under Section 115, Civil P. C.

16. Mr. Atul Gupta, however, referred to two very recent cases decided by their Lordships of the Privy Council, the first being N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras . In that case a Bench of the Madras High Court consisting of Mockett and Kuppuswami Ayyar JJ. in revision had interfered with the order of a subordinate Court. Mockett J. was of the view that the decision of the case depended entirely on the construction of a certain will. He considered that the conclusion of the learned Judge on the constraction of the will was so entirely out of accord with the meaning of the document that it required interference by the High Court and that the wrong construction put on the will by the learned District Judge involved such material misuse of jurisdiction as to involve interference by the High Court. Kuppuswami Ayyar J. in a concurring judgment expressed the view that the High Court was justified in interfering in revision under sub-cl. (c) of Section 115, Civil P. C.

17. In this case it seems clear that in the view of the High Court the learned District Judge had clearly decided the case wrongly. He had misconstrued a will and had been guilty, in the view of the High Court, of a serious error of law, the error being so serious that according to Mockett J. it was a material misuse of jurisdiction. Their Lordships of the Privy Council, however, held that the case did not fall within Section 115, Civil P. C. and allowed the appeal and restored the order of the District Judge. At p. 73 Sir John Beaumont who delivered the judgment of the Board observed:

'Section 115 applies only to cases in which no appeal lies, and, where the legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the Subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate Court on questions of fact or law. No such matters arose in this case, and the order of the High Court on the petition was without justification.'

18. Mr. Atul Gupta has relied upon Sir John Beaumont's paraphrase of Section 115(c). Sic John Beaumont reads it as meaning 'that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law.' Mr. Gupta has contended that in the present case the learned Subordinate Judge in exercising jurisdiction acted illegally, that is, in breach of the provisions of Order 6, Rule 5. That being so, it is urged that the case clearly falls within Section 115(c).

19. It is unnecessary for this Court to decide exactly what this phrase used by Sir John Beaumont actually means. But I think it is clear that it does not mean that a case falls within Section 115(c) because the Court has decided a point not in accordance with law if the point does not involve jurisdiction. That I think is clear from the concluding words of Sir John Beaumont where he points out that if the High Court is satisfied on the three matters to which he has referred, it has no power to interfere because it differs, however, profoundly, from the conclusious of the Subordinate Court on questions of fact or law. In other words, this Court cannot interfere even if it is of opinion that the decision of the Subordinate Court is grievously wrong either in law or in fact, unless of course the mistake concerns jurisdiction. Further it is clear that Sir John Beaumont could not possibly have meant that deciding a case wrongly is within the provisions Section 115(c), because there is an express decision of the Board to the contrary.

20. Reference was also made to a more recent decision of their Lordships of the Privy Council in the case of Joy Chand Lal Baou v. Kamalaksha Chaudhury . In that case a sub-ordinate Court dismissed an application under Sections 30 and 36 (a) (ii), Bengal Money-lenders Act, 1910, on the view that loan in question was a commercial loan within the meaning of the Act and the High Court disagreeing with the lower Court held that the loan was not a commercial loan and set aside the aforesaid order. Their Lordships held that the High Court had power to interfere in revision under Sub-section (b) of Section 115, Civil P. C. At p. 566 Sir John Beaumont who delivered the judgment of the Board refers to the case of Rajah Amir Hassan Khan, 11 I. A. 237: (11 Cal. 6 P.C.) and the case of Balakrishna Udayar, (44 I. A. 261 : A. I. R. (4) 1917 P. C. 71) and states that the principle laid down by those cases is firmly established. He then proceeds:

'A Court has jurisdiction to decide a case wrongly as well as rightly. Mr. Pringle maintained that the learned Subordinate Judge had jurisdiction to decide that the loan was a commercial Joan and in so doing he did not act illegally or with material irregularity, and the High Court had no power to interfere in revision merely because it disagreed with his decision. So far Mr. Pringle is on safe ground, but the learned Subordinate Judge having held that this was a commercial loan, was bound to go on to consider what effect that decision had upon the respondent's application, and, since the Act in terms does not apply to commercial loans, the learned Judge was bound, upon his finding, to dismiss the application without determining whether or not the respondents brought themselves within Sections 30 and 36 of the Act as they claimed to do. In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under Sub-section (b) of Section 115.'

21. It is to be observed that this is not a case of Section 115(c) at all. It was contended that the decision of the subordinate Court that the loan was a commercial loan was at most a wrong decision which gave this Court no right to interfere. However, their Lordships pointed out that it was a decision relating to jurisdiction. A decision that a loan was a commercial loan made it impossible for the learned Judge to consider the application under Sections 30 and 36, Bengal Money-lenders Act as that Act did not apply to commercial loans. The effect of the finding was that the subordinate Court failed to exercise a jurisdiction which was vested in it. Therefore the case fell within Section 115(b) and the High Court rightly interfered.

22. In the present case there is no question that the Court by some erroneous finding exercised or failed to exercise the jurisdiction vested in it. Admittedly it had jurisdiction to entertain this application and admittedly it entertained it. All that can be said is that the decision of the learned Subordinate Judge was clearly erroneous. That, however, does not bring the case within the purview of Section 115, Civil P. C. and that being so, I am bound to hold that no revision lies.

23. In the result, therefore, I would dismiss this application and discharge the Rule with costs.

Sarkar, J.

I agree.


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