Skip to content


Ram Dass Vs. Smt. Subhash Bakshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 52 of 1974
Judge
Reported inAIR1977HP18
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 115; ;Himachal Pradesh (Courts) Order, 1948
AppellantRam Dass
RespondentSmt. Subhash Bakshi
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate K.D. Sud, Adv.
Cases Referred and Ramrichpal Singh v. Dayanand Sarup
Excerpt:
- .....error the subordinate court does not make infirm the ultimate decree passed by it disposing of the suit or appeal. in this regard, the legislature has armed the high court with the widest amplitude of power. the high court, when finding a jurisdictional error committed by the subordinate court, can for the purpose of correcting it pass such order as it deems fit.12. from the aforesaid analysis, it is clear that the object of section 115 of the code is to remove such jurisdictional errors from the record of the case as preclude a true adjudication of the rights or obligations of the parties in controversy. they are the fights or obligations to determine which the proceeding has been initiated in court by the plaintiff or the appellant. the grant of jurisdiction to the subordinate court.....
Judgment:

R.S. Pathak, C.J.

1. This is a revision petition directed against an order of the trial court under Section 10 of the Code of Civil Procedure staying the proceedings in a suit.

2. The respondent wife has filed a suit before the learned District Judge, Ludhiana praying for a decree for judicial separation against the petitioner husband under Section 10 of the Hindu Marriage Act. The petitioner thereafter filed a suit before the learned Senior Subordinate Judge, Mandi for a declaration that the parties are not husband and wife. During the pendency of the suit the wife applied under Section 10 of the Code of Civil Procedure for stay of proceedings in the suit on the ground that a previously instituted petition for judicial separation between the same parties was pending in the District Court at Ludhiana and the subject-matter of that suit was substantially the same as in the present suit. The learned Subordinate Judge has allowed the application and stayed the suit pending before him. The husband now applies in revision to this Court.

3. The revision petition has been filed under paragraph 35 of the Himachal Pradesh (Courts) Order, 1948. Having regard to the grounds taken, it is plainly a petition under paragraph 35 (1) (a) of the Order.

4. A preliminary objection has been taken by counsel for the wife. It is urged that the revision petition is not maintainable inasmuch as it is not a 'case decided'.

5. Paragraph 35 (1) (a) of the Himachal Pradesh (Courts) Order, as it stands today, reads:

'35 (1)--The High Court may call for the record of any case which has been decided by a Civil Court subordinate to it and in which no appeal lies to it, and

(a) if the Civil Court by which the ca^ 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 with material irregularity............

the High Court may make such order in the case as it thinks fit'.

6. The language is comparable with that of Section 115 of the Code of Civil Procedure, which provides:

'115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears--

(a) to have exercised 3 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.'

Except for the circumstance that while by virtue of Section 115 (c) of the Code the revisional jurisdiction of the High Court can also be invoked where the subordinate Court has committed an illegality in the exercise of its jurisdiction, |the language of Section 115 and paragraph 35 (1) (a) is substantially the same. For the purpose of determining what is the meaning of the expression 'case which has been decided' in paragraph 35 (1) (a), reference can be made with advantage to [what that expression means in Section 115.

7. From the earliest years the Courts in India have been concerned with determining the meaning of the expression 'case decided' in Section 115 of the Code of Civil Procedure, 1908 and its corresponding counterpart in the preceding Codes. Much of the case law has been placed before us by learned counsel for the parties, and we are indebted to them for the considerable research conducted by them. It seems that the courts have differed from one another on the precise understanding of the expression 'case decided', and quite often in the same court opinion has varied with time. It is not necessary here to refer to the law as it developed on the point. It will suffice for the time being if reference is made to two comparatively recent decisions of the Supreme Court.

In Major S.S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497 the Supreme Court laid down that the expression need not be confined to a suit or analogous proceeding which had been completely disposed of but it could extend to a part of such case. It was pointed out that the word 'case' was a term of comprehensive import, and could embrace not only an entire proceeding but also a part of such proceeding. Thereafter, in Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd. AIR 1970 SC 406 the Supreme Court was called upon to decide whether an order of the trial court made during the pendency of a suit declining permission to put a question to a witness fell within the expression 'case decided'. Holding that it did not, the Supreme Court observed:

'A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure'.

But in Major S.S. Khanna (supra) it was not laid down that all interlocutory orders will constitute a 'case decided'. A case is said to be decided when there is an adjudication for the purposes of the suit of the rights and obligations of the parties. There has been considerable debate before us on the significance of those observations of the Supreme Court and it is a matter of serious consideration as to what is the precise principle laid down by the Supreme Court.

8. It seems to me that the meaning attracted by the expression 'case decided' in Section 115 of the Code must be determined by an appreciation of the entire language of Section 115. by an understanding of the context in which the provision finds place and the object with which it has been enacted. In the original Code of Civil Procedure, 1859 there was no provision corresponding to Section 115 of the Code. Revisional jurisdiction was brought in for the first time in the Code of Civil Procedure, 1861. Subsequently, in the Code of Civil Procedure, 1882, Section 622 conferred revisional power on the High Court in terms substantially similar to those of Section 115 of the present Code, except that there was no prevision therein corresponding to Clause (c) of Section 115.

It appears that with the experience borne of the course of litigation through the years the legislature found it necessary to empower the High Court to interfere with the record of a case decided by the subordinate court not only where it had assumed jurisdiction where none existed or declined to exercise jurisdiction where jurisdiction existed but also in a case where a subordinate court acted in the exercise of its jurisdiction illegally and with material irregularity. And so Section 115 of the Code of 1908 contains provision for all three kinds of cases.

9. The revisional power of the High Court is without dispute an expression of its supervisory jurisdiction over subordinate courts. It has been described by the Supreme Court in Major S.S. Khanna, (AIR 1964 SC 497) (supra) as supervisory or visitorial jurisdiction, and that is how the High Courts have also generally understood it.

10. The Code of Civil Procedure has provided an appeal from a decree in a suit and a second appeal against the appellate decree. In a certain class of cases, a second appeal from an appellate decree is barred. Appeals have been provided against certain orders only. No second appeal has been permitted against the appellate orders. In respect of those originally appellate orders against which no appeal is permissible directly, any error, defect or irregularity in such order affecting the decision of the case can be made the subject of a ground of objection in an appeal against the decree.

11. It cannot be disputed then that there is a range of orders passed by the subordinate courts which is not directly capable of correction under the provisions of the Code by way of appeal. It is also apparent that there is another range of orders which suffer from such errors. defects or irregularities as would affect the decision of the case But nevertheless can ordinarily be corrected only after the entire case has been disposed of by the court. It is in that light that the enactment of Section 115 falls to be considered. The legislature was anxious to ensure that the subordinate courts acted within their jurisdiction, and to achieve that object it has been an almost invariable practice to arm the superior Court with supervisory jurisdiction. The main purpose of conferring such power on the superior Court is to enable it to correct a subordinate Court if it errs on the jurisdictional plane. By keeping it within the limits of its jurisdiction the superior Court confines the subordinate Court to its true course in point of jurisdiction.

Where such errors of the subordinate court cannot be corrected by resorting to an appeal, they can be corrected in the exercise of the supervisory jurisdiction of the superior court. For this reason, it will be found that a superior court such as the High Court, is empowered to exercise its supervisory or revisional jurisdiction in those cases only where ne appeal lies. It is, as it were, a residual jurisdiction conferred on the High Court in order to ensure that errors of so grave a nature as jurisdictional errors should be corrected as soon as they are brought to its notice. In this connection, it is pertinent to note that the correction of a jurisdictional error has not been left to an aggrieved party only. It is significant that the High Court can also act suo motu.

The High Court is intended to exercise its revisional powers whenever the occasion calls for them. This feature of the revisional powers demonstrates the anxiety of the legislature to ensure that no jurisdictional error in the record of a subordinate court should go uncorrected and, indeed, should be removed without waiting for the completion of the trial of the suit or disposal of the appeal by a subordinate court. For it is evident that when the legislature creates a subordinate court and confers power on it to adjudicate a dispute, it considers it necessary that those powers should be exercised when their exercise is called for, that powers which do riot belong to the subordinate court should not be exercised by it and that there is no misuse of those powers by a breach of the law or the commission of a material irregularity.

The need for removing such errors of jurisdiction is obvious. It is to ensure that by a jurisdictional error the subordinate court does not make infirm the ultimate decree passed by it disposing of the suit or appeal. In this regard, the legislature has armed the High Court with the widest amplitude of power. The High Court, when finding a jurisdictional error committed by the subordinate court, can for the purpose of correcting it pass such order as it deems fit.

12. From the aforesaid analysis, it is clear that the object of Section 115 of the Code is to remove such jurisdictional errors from the record of the case as preclude a true adjudication of the rights or obligations of the parties in controversy. They are the fights or obligations to determine which the proceeding has been initiated in court by the plaintiff or the appellant. The grant of jurisdiction to the subordinate court and the conditions for the manner of its exercise are designed for that sole object--the true adjudication of those rights or obligations. An order which affects the correctness of that adjudication in point of jurisdiction falls within the purview of the revisional powers. And so we come to the meaning of the expression 'case decided' in Section 115.

13. A 'case is decided' when there is an adjudication on the rights or obligations of the parties in controversy. Such adjudiction may be in the nature of a decision expressly deciding those rights or obligations. For example, the entire suit or appeal may be disposed of or a distinct part of the suit or appeal may be disposed of finally so far as the subordinate court is concerned. Or, the adjudication may be such as to have the necessary effect of deciding those rights or obligations. The rejection of an application for amending the plaint by the addition of further items of property concerning which relief is sought in the suit would give rise to a 'case decided.' For in that event the effect would be to deny relief at once tc the plaintiff in respect of those items of property.

14. When an order is made under Section 10 of the Code staying the trial of a suit, the result is that the plaintiff will be bound on certain issues in the decision of his suit by the findings rendered by the other court where a previously instituted suit is pending between the same parties. To that extent the rights or obligations in controversy in the subsequent suit will be determined. If that court is not competent to try that suit or any of the other conditions mentioned in Section 10 are not satisfied, it must be taken that the legislature never intended the adjudication by that court to be substituted for the adjudication in the present suit, with the result that an adjudication not intended by the law will substitute for an adjudication which alone could truly decide the rights or obligations in controversy between the parties.

In the case where an order under Section 10 is erroneously refused to the defendant, the present suit would proceed to trial and ultimate adjudication, and the benefit of the doctrine of res judicata. which is the very reason for enacting Section 10, will be denied to the defendant, and he will not be entitled to maintain that the determination of the rights or obligations in, controversy between the parties in the previously instituted suit should, on the basis of a universally accepted maxim of law, be available to him in the present suit.

15. In my opinion, an order under Section 10 of the Code amounts to a case decided' for the purpose of exercising revisional jurisdiction. There are a number of cases supporting that view, and reference may be made to two: Mul Chand v. Jiwan Dass, AIR 1933 Lah 50 and Ramrichpal Singh v. Dayanand Sarup, AIR 1955 All 309 (FB).

16. I hold that the present revision petition lies. The case will now be listed for consideration on the merits.

C.R. Thakur, J.

17. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //