1. The facts are as follows: 2. The petitioner brought a Suit No. 12 of 1926 in the Court of the Additional Judge of Barisal.
2. The 19th May was fixed for the hearing of the suit. Petitioner did not appear and the suit was then dismissed for default.
3. He then made the usual application under Order IX, Rule 9. This application was fixed for hearing on 14th August.
4. He again failed to appear and the application was dismissed for default.
5. He then again applied to have the dismissal set aside under Section 151 and Order IX, Rule 9.
6. The learned Judge heard the Pleaders. He held that the petition could not be held to be under Order IX, Rule 9 because in his opinion Order IX, Rule 9 could not be applied with the help of Section 141 to the case of an application under Order IX, Rule 9 which had been dismissed for default and he, therefore, rejected the petition. The petitioner moved this Court and obtained this Rule.
7. Mr. James who appears to oppose the Rule contends that Section 115 of the Civil Procedure Code has no application to the present case. The Munsif if he wrongly dismissed the petition holding that it was not maintainable under Order IX, Rule 9 or Section 151 when it was maintainable, committed an error of law and that an error of law is not a ground for interfering under Section 115, Civil Procedure Code.
8. The petitioner's contention would seem to be this that as the result of the error in law the Subordinate Judge refused to exercise the jurisdiction vested in him by law and deal with the matter under Order IX, Rule 9.
9. I have no hesitation whatever in holding that an error of law is no ground whatever for this Court interfering under Section 115.
10. Looking at the wording of Section 115, Civil Procedure Code, this would seem too obvious to require any decision to support it.
11. Reference, however, may be made to the cases of Shew Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323 at p. 337; Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 : 4 Sar. P.C.J. 559 : Rafique and Jackson's P.C. No. 83 : 5 Ind. Dec. (N.S.) 760 (P.C.); Ram Gopal Jhoon jhoonwalla v. Joharmall Khemka 15 Ind. Cas. 517 : 39 C. 473; Sunder Singh v. Doru Shankar 20 A. 78 : A.W.N. (1897) 168 : 9 Ind. Dec. (N.S.) 409; Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapurkar 11 B. 488 : 6 Ind. Dec. (N.S.) 321 and Hari Bhikaji v. Naro Vishvanath 9 B. 432 : 10 Ind. Jur. 69 : 5 Ind. Dec. (N.S.) 287.
12. The petitioner's argument would seem to be this. No doubt the Court did wrongly decide the preliminary question of law as to whether the matter did or did not fall within Order IX, Rule 9 and having wrongly decided that it did not so fall the Court refused to exercise jurisdiction which Order IX, Rule 9 gave him to decide whether the petitioner had or had not, a good reason for being absent when his case was called on. But after all it is not Order IX, Rule 9 that gives the Court jurisdiction to deal with the matter. It is on the contrary Section 9 of the Civil Procedure Code which confers on the Courts their jurisdiction or power to try various matters. Jurisdiction in its ordinary sense when applied to a Court means the power or authority of judging and a Court is said to be of competent jurisdiction with regard to a suit or other proceedings when it has power to hear or determine it or exercise any judicial power therein.
13. In the present case the Court had power to entertain and deal with the petition. It did so entertain it and did not refuse to exercise its jurisdiction. A plea in bar was then raised that the petition was not maintainable because it did not fall within any of the provisions of the Civil Procedure Code.
14. The Court exercised its jurisdiction for it heard the matter and then decided rightly or wrongly that the application did not fall within Order IX, Rule 9 and, therefore, dismissed it. It certainly did not refuse to exercise its jurisdiction. It exercised its power of judging or its jurisdiction and determined that the application was incompetent because it fell under no section of the Civil Procedure Code. If it were wrong it committed an error of law but it certainly exercised its jurisdiction or power of judging. The argument of the petitioner would really come to this that if for some reason or other the Judge did not grant the relief asked for on the ground that he could not, that amounts to a refusal to exercise his jurisdiction. Tor instance where a Judge holds that a suit is barred by limitation and hence refuses to go into the merits. It might be equally well argued that if he were wrong in holding that the suit was barred by limitation that he had refused to exercise a jurisdiction vested in him by law to decide the suit on the merits.
15. In fact that whenever the Judge decides a point of law against a party and so does not grant him some relief he has asked for he has refused to exercise a jurisdiction conferred on him by law. It needs but little examination to see that the doctrine would always give what amounts to an appeal whether it was granted by the Code or not when the Judge by wrongly deciding a question of law refused to grant a suitor the relief he sought for.
16. For instance, a Court decides wrongly that a certain suit is barred by limitation. If he had not so decided he would have decreed the plaintiff's suit. Hence he refused to exercise a jurisdiction vested in him by law to decree the plaintiff's suit. This is, therefore, a case falling within Section 115, Civil Procedure Code. I may, however, say that the Courts have consistently held it does not.
17. Ram Gopal Jhoonjhoonwalla v. Joharmall Khtmka 15 Ind. Cas. 517 : 39 C. 473; Sundar Singh v. Doru Shankar 20 A. 78 : A.W.N. (1897) 168 : 9 Ind. Dec. (N.S.) 409.
18. As West, J., puts it in the case of Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapurkar 11 B. 488 : 6 Ind. Dec. (N.S.) 321:
Where the law speaks of exercise of jurisdiction, or failing to exercise jurisdiction, it means using or failing to use authority in entering on an enquiry and carrying it to a judicial conclusion. The exercise of jurisdiction is not declined when such a conclusion has been arrived at, merely because, had the decision on a particular point been different, further questions would have had to be disposed of.
19. That is exactly what has happened in the present case. The Judge entertained the application, heard it and determined that it did not fall within the scope of Order IX, Rule 9. As a result of the decision on this point he did not dispose of the further question, viz., whether petitioner had good ground for not being present when the case was called on.
20. But by so doing he did not refuse to deal with the matter. He dealt with it and rejected the application. By so doing he did not refuse to exercise his jurisdiction. On the contrary he exercised it. The present case obviously does not fall within the four corners of Section 115.
21. The Rule must be discharged with costs.
22. Hearing-fee five gold mohurs.
23. I agree.