1

-

'

-

4 S.C.R. SUPREME COURT REPORTS 409

sought for must be granted.

We therefore allow the appeal, set aside the order of

labour court and grant the application of the appellant­

bank dated December 27, 1961 and approve the proposed

action.

In the circumstances we pass no order as to costs.

Appeal allowed.

MAJOR S. S. KHANNA

ti.

BRIG. F.J. DILLON

(A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH, JJ.)

Civil Pracedure-Revisional jurisdiction of High Court­

Meaning of "case" in s •. 115 of the Code of Civil Procedure-­

Separate trial of issues of law and issues of fact-Code of Civil

Procedure, 1908 (Act 5 of 1908), s. 115, O. 14, r. 2.

The appellant and the respondent entered into a partnership

to do business

as Contruction Engineers but in February 1956 they

agreed to dissolve it. It was agreed that the respondent was to

take over all the assets and liabilities of the partnership and keep

the appellant indemnified from all liability. Later on, a suit was

filed by the appellant for dissolution of partnership and rendition

of accounts. That suit ended in a compromise which provided

that all realisations of the old partnership would be converted into

cash and placed in joint account in

the name of the two partners

before being paid towards the liabilities of the partnership.

The respondent filed two suits against the appellant for re­

covery of certain amounts on the allegation that the appellant had

taken that amount as loan. The defence of the appellant was that

as the money was still in the joint

flame of the two partners and

he had taken the money from the loint account, suits between

the two partners were not maintainable.

In trying preliminary issues raised in the suits the trial Judge

held that the suits were not maintainable, but instead

of dismissing

the suits there and then, he set them down for a future date.

Against the :findings of the trial Judge, revision petitions were

filed in the High Court under s. 115 of the Code of Civil Pm­

OO<lure. The High Court set aside the orders passed by the Trial

Judge and held that the suits could not

be held as not

maintain­

able. The appellant appealed by special leave.

The appellant challenged the order of the High Court on

the ground that the order

of the trial Judge did not amount to

2

7-2 S. C. lnd;a/64

1963

State Bank

of Bikaner

v.

Balai Chander

Sen

1963

August

14

1963

Major

S. S. Khanna

v.

Brig.

F. /. Dillon

410 SUPREME COURT REPORTS [1964]

a case which has been decided" within the meaning of s. 115 of

Code of Civil Procedure, that the decrees which may be passed

in the suits being subject to appeal to the

High Court, the power

of the High Court

was by the express terms of s. 115 excluded,

and that the orders of the trial Judge did not fall within any

ot

the three clauses (a), (b) and (c) of s. 115. Rejecting the con­

tentions of the appellant,

Held :The High Court was right in setting aside the order

passed

by the trial Judge and in holding that without investigation

as to the

respective claims made by the parties by their pleadings

on the matters in dispute, the suits could not be held as not

maintainable. The. decision of the trial Judge affected the rights

and obligations of the parties directly.

It was the decision on

an issue relating to the jurisdiction

-of the court to entertain the

suit filed by the respondent. The decision attracted cl. (c) of s. ll5

of the Code of Civil Procedure. ·

Per Sarkar and Shah, J /.-The expression "case" is a word of

comprehensive import. It includes civ~l proceedings other than

suits and

is not restricted by anything contained in s. 115 to

the

entirety of the proceedings in a.· civil': .court. To interpret the ex­

pression "case" as an entire· proce'~ding only and not a part of

the proceeding would

be to impose

~n unwa.rranted restriction

on the exercise of fX>Wers of superintendence and may result ·rn

certain cases in denying relief to the aggrieved litigant \vhere it

is most needed and may result in· the perpetration of gross in-

justice. .

The High Court is not obligCd to exercise its jurisdiction

when a

case is decided by a subordinate court and the conditions

in els. (a), ( b) or ( c) of s. 115 are satisfied. Exercise of the

jurisdiction

is discretionary and the

J:Iigh Court is not bound to

interfere merely because the conditions are satisfied.

The

int~r­

locutory character of the order, existence of another remedy to

the aggrieved party

by way of appeal from the ultimate order

or decree

in the proceeding or by a suit, and the general equities

of the

case being served by the

order made are all matters to be

taken into account in considering whether the High Court~ even

in

cases where the conditions which attract the jurisdiction exist,

should exercise its jurisdiction.

Revisional jurisdiction of the

High Court may be exercised

irrespective of the question whether

_an appeal lies thereto from

the ultimate decree or ·order passed , i.n. the suit or not. The ex­

pression "in which no appeal lies ther.eto" does not mean that it

excludes the exercise of the revision~! jurisdiction when an appeal

may

be competent to the High

C<>W1 from the final order.

The use of the word "in" is not _intended to distinguish orders

passed in proceedings not subject tc;> .appJ:'.al ,from the final adju.

dication, frorn those from which no ~ppeal lies. If an appeal lies

against the adjudication -directly to :thit, High Court or to another

court from the decision of which an. ap~al lies to· the. High.Court,

-

-

1

-

\i.

4 S.C.R. SUPREME COURT REPORTS 411

it has no power to exercise its revisional jurisdiction against

the adjudication, but where the decision itself

is not appeal·

able to the High Court directly or indirectly, exercise of the re­

visional jurisdiction by the High

Court would not be deemed ex·

eluded.

Under Or. 14, r. 2, where issues both of law and fact arise

in the same suit and the court

is of the opinion that the case

or part thereof could be disposed of on the issues of law only,

it shall try those issues first, and for that purpose, may, if it thinks

fit, postpone

·settlement of the issues of fact until after the

issues of la\,. have been determined. The jurisdiction to try

issues of law apart from the issues of fact may be exercised only

where in the opinion of the Court the whole suit may be dispo­

sed of on the issues of law alone, but the Code of Civil Pro­

cedure confers no jurisdiction upon the court to try a suit on

mixed issues of law and fact as preliminary issues. Normally, all

issues in the suit should

be tried by the Court; not to do so

especially \vhen the decision on issues even of law depends upon

the decision

of issues of fact, would result in a lop-sided trial of

the suit.

Per Hidayatullah, f.-A decision of the subordinate Court is

amenable to the revisional jurisdiction of the High Court unless

that jurisdiction is clearly barred by a special law or an appeal

lies therefrom. The expression "in which no appeal lies" does not

speak of the appeal "under the Code". The expression is a gene­

ral one and applies to every decision of a court subordinate

to

the High Court in which no appeal lies, whether under the Code

or otherwise.

The decision of the trial Judge was erroneous because he de­

nied himself the jurisdiction of holding that the suits were not

maint.ainable.

The fact that he did not dismiss the suits and

did not dra\v

up decrees for that purpose, was itself an exercise

of jurisdiction with material irregularity, if not also illegality.

In

so far as the parties were concerned, the suits were no longer

live suits as the decision had put an end to them.

The \vord

"case" in s. 1I5 does not mean a concluded suit

or proceeding but each decision which terminates a part of the

controversy involving a matter of jurisdiction. Where no ques­

tion of jurisdiction is involved, the court's decision cannot be

impugned under s. I 15 because the court has jurisdiction to decide

wrongly as well as rightly.

Balakrishna Udayar v. Vasudeva Aiyar, L.R. 44 I.A. 261,

Ryats of Garabandho v. Zamindar of Parlakimedi, LR. 70 I.A.

129; Budhu/al , .. Mewa Ram, I.LR. 43, All. 564 (F.B.); Puro­

hit Swarupnaraian v: Gopinath, I.LR. (1933) Raj. 483(F.B.), Pyar­

chand ~· Dungm· Singh, I.LR. (1953) Raj. 608 and Rex v. Nat

Bell Liquors Ltd., [19!'2] 2 A.C. 128, referred to.

CML APPELLATE fuR1so1cTJON : Civil Appeal No. 320 of

1963.

1963

Major

S.S. Khanna

...

Brig.

F. f. Dillon

1963 .

Major

S. S. Khanna

v.

Brig.

F. /. Dillon

Shah,/.

412 SUPREME COURT REPORTS [1964]

Appeal by special leave from the judgment and order

dated October

26, 1962, of the Punjab High Court at

Delhi

in Civil Revision Nos. 525 and 526-D of 1960.

N.C. Chatteriee, MK. Ramamurthy, R.K. Garg, S.C.

Agarwal and D.P. Singh, for the appellant (in both the

appeals).

A.V. Viswanatha Sastri, Bakshi Shiv Charan Singh

and.S.N. Anand, for the respondent (in both the appeals).

August

14, 1963. The Judgment of A.K. Sarkar and

J.C. Shah, JJ., was delivered by Shah, J. M. Hidayatullah,

J. delivered a separate Opinion.

SHAH, J.-Brig. F.J. Dillon and Major S.S. Khanna­

hereinafter called 'Dillon' and 'Khanna' respectively­

carried on

business in partnership as Construction En­

gmeers. They agreed

to dissolve the partnership with

effect

from February 15, 1956. By the deed of dissolution it was

agree<l that Dillon was to take over all the assets and

properties

of the partnership as absolute owner and

to pay all the debts and to discharge all the liabili­

ties of the partnership and to keep Khanna indemnified

against all demands and

claims in relation to the partner­

ship

business.

But the deed did not terminate the disputes between

the partners, and Khanna commenced an action against

Dillon in the

Court of the Subordinate Judge, 1st Class,

Delhi "for dissolution of the partnership and rendition of

accounts". On January 12, 1957, the parties arrived at a

compromise (which

was incorporated into a decree of the

Court) confirming the earlier dissolution

of the partner­

ship, subject

to a scheme of winding up, under which all

outstandings realised from the debtors

of the firm and the

sale proceeds of certain assets were to go into a bank­

ing account

to be opened in the joint names of Dil­

lon and Khanna and

were to be applied in

the first

instance to meet the liabilities

of the dissolved firm, and

the balance in that joint account

was to belong to Dillon.

Some outstandings of the dissolved partnership were col­

lected by Dillon and were deposited in the joint account

of Dillon and Khanna.

Dillon

filed a suit in the

Court of the Subordinate

Judge at Delhi for a

decree for Rs.

54,250.00 with future

..

-

-

•·

-

4 S.C.R. SUPREME COURT REPORTS 413

interest alleging that between the months of May 1957

and November 1957 he had, at the request of Khanna, ad­

vanced in three sums an aggregate amount of Rs. 46,000.00

as short-term loans which Khanna had promised to but

had failed

to repay. Khanna pleaded that he did not bor­

row

any loans from Dillon, and that the amounts claim­

ed in the action being advanced, even on the plea of Dillon.

out

of joint funds belonging to the two partners, action for

recovery of those amounts was in law not maintainable.

Out of the

issues raised by the Trial Court in the

suit, the third

issue viz :

"Whether this suit is not maintainable and the plain­

tiff

is not entitled to institute this suit, as alleged in

paras

Nos. 15, 16, 17, 18 of the written statement",

was at the request of Khanna tried as a preliminray

issue, and it

was held that the suit being by a partner

against another partner

of a dissolved firm which was in

the

process of winding up, and in respect of advances from

the partnership

assets, was not maintainable.

The High Court

of Punjab in exercise of its revision­

al jurisdiction set aside the order, and directed that the

suit

be heard and disposed of according to law.

With

special leave this appeal is preferred by Khanna.

The jurisdiction

of the High Court to set aside the

order

in exercise of the power under s. 115 Code of Civil

Procedure

is challenged by Khanna on three grounds :­

(i) that the order did not amount to

"a case which

has been decided" within the meaning of s. 115

Code of Civil Procedure :

(ii) that the decree which may be passed in the suit

being subject

to appeal to the High Court. the

power of the High Court

was by the express terms

of

s. 115 excluded ; and

(iii) that the order did not fall within any of the

three

clauses (a), (b) and (c) of s. 115.

The validity of the argument turns upon the true

meaning of

s. 115 Code of Civil Procedure, which provi­

des:

"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 there­

to, and if such subordinate Court appears-

1963

Maior

S.S. Khanna

v.

Brig.

F. /. Dillon

Shah,/.

1963

Major

S. S. Kliflllna

v.

Brig.

F. ]. Dillon

Shah, ].

414 SUPREME COURT REPORTS [1%4]

(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.''

The section

consists of two parts : the first, prescribes

the conditions in which jurisdiction of the High Court

arises

i.e. there ·is a case decided by a subordinate Court

in which

no appeal lies to

the High Court ; the second,

sets out the circumstances in which the jurisdiction may

be exercised. But the power of the High Court is exercisa­

ble in respect of "any case which has been decided". The

expression "case" is not defined in the Code, nor in the

General

Clauses Act. It is undoubtedly not restricted to

a litigation in the nature of a suit in a Civil Court :

Bala­

krishna Udayar v. Vasudeva Aiyar(') ; it includes a

proceeding in a Civil Court in which the jurisdiction

of the Court is invoked for the determination of some

claim or right legally enforceable.

On the question whe­

ther an order of a Court which does not finally dispose of

the suit or proceeding amount to a "case which has

been decided'', there has arisen a serious conflict of opi­

nion in the High Courts in India, and the question has

not been directly considered by this Court. One view

which is accepted by a majority of the High Courts is

that the expression "case" includes an interlocutory pro­

ceeding relating to the rights and obligations of the par­

ties, and the expression "record of any case" includes so

much of the proceeding as relates to the order disposing

of the interlocutory proceeding. The High Court has

therefore power to rectify an order of a Subordinate Court

at

any stage of a suit or proceeding even if there be

an­

other remedy open to the party aggrieved i.e. by reserving

his right to file an appeal against the ultimate deci"

sion, :i.nd making the illegality in the order a ground

of that appeal. The other view is that the expression

"case" does not· include an issue or a part ,of a suit or

proceeding and therefore the order on an

issue or a part of

(

1

) L.R.

44 I.A. 261. . . -

..

-

-

,·,;

,., {

. \• .. , . , . ' ----1

41 S.c.R. -._-_ SUPREME COURT -REPORTS - 415

~ ~ .

" ,..,-·--

a suit or Jiroceeding is 'not ·a "case which has been decided",

and the High Court has no power in · exercise of its re­

.. vUional jurisdiction, to correct an error in an interlocutory

order. - . -

An analysis of. the cases decided by the Higli Courts­

-their number is legion-would serve no useful purpose. In

, every High - Court from time to time opinion has fluctuat­

ed. The meaning of the a:pr~ion "case" must be sought

in the nature . of the jurisdiction conferred by s. 115, ·

__ and the -purpose for which -the -High Courts were in.

-vested with it. -, -----: ' - --

By their -constitution the High -Courts of Calcutta,

-Madras, and ~y were within .Presidency towns, as

successors to the respective Supreme Courts competent to

issue writs of certiorari, mandamus and prohibition. -This.

was so because the jurisdiction of the Courts of King's -·

Bench and Chancery in England to issue those writs was

conferred upon the _three Supreme Courts. But c..i:ercise -

of this jurisdiction which was, established by Charters of

the British Crown, was (except a5 to British subjects and

servants of the Company) restricted. The jurisdiction did

not ordinarily extend -to the territories beyond -the Pre­

sidency towns: Ryots of Garabandho v. Zamindar of

Parlakiinedi(1). · The appellate Courts, called the Sudder

Adalats, which exercised appellate powers over the East -

India Company's Courts in the inofussil of ~he three Pre­

sidencies were not the Courts of the _ King of Erigland : -_

they were the creatures of. Regulations, and did not ad-_

minister the law· of England. These Courts _had no power_ -

to issue :l!lY of the prerogative, writs,---acept probably the

writ of habeas corpus. _But the power to superintend

the exercise of jurisdic•jon by the mofussil Courts was

found essential to the proper functioning of the Sudder-,

Courts, and the Sudder Courts were accordingly invested

by, express legislative· enactments with authority

to rectify

-

orders of the mofussil Courts subordinate thereto. Bombay

; Regulation II of 1827 of Ch. 1 s. 5 (2) authorised-the

Sudder Court at -Bombay to call , for the proceedings of

any subordinate civil court and to issue such orders

thereon_

as the case may require. ·No Regulation was

however enacted elsewhere conferring revisional jurisdic-

(i) L.R. 70

I.A • .129. ,

·--------------~---------

1963,

M.jor

S. S. KA,,,.n11

v.

-Brix.

F. J. Dillon -

SJu.A,J. _

"-·=-

19~

Maior

.>. S. Khanna

v.

Brig,

F, /.. Dillon

Shah, /,

416 SUPREME COURT REPORTS f1964]

tion upon the Supreme Court or the Sudder Court in res­

pect of adjudication by subordinate courts. The Code of

1859 contained no provision for the exercise of revisional

powers

by the Sudder Courts, but by s. 35 of Act XXIII

of 1861 the Sudder Courts were invested with the power to

call for the record of any case decided m appeal by

the subordinate courts and in which no further appeal

lay, when it appeared that a subordinate court had

ex­

ercised jurisdiction not vested in it by law. With the set­

ting up of the High Courts in the Presidency towns of

Calcutta, Madras and Bombay power of superintendence

was conferred by s. 15 by the Charter Act (24 & 25 Viet.

Ch. 104) upon the High Courts over subordinate Courts.

By s. 622 of the Code of 1877 revisional jurisdiction of

the High Court

was defined, and made exercisable in the

conditions

set out in els. (a) & (b) of the present s. 115.

Clause ( c) was added by the Amending Act XII of 1879.

This jurisdiction was exercisable suo motu as well as on

application to the High Court. It

was conferred in the

widest terms. The jurisdiction

was supervisory and

visito­

rial and was complementary to the powers conferred by

cl. 15 of the Charter Act, 1861, and the subsequent Cons­

titution Acts, and was conceived in the interest of main·

taining effective control over Courts subordinate to the

High Courts. It had to

be so conferred because m

the historical evolution of the powers of the

diverse High

Courts supervisory jurisdiction to

issue writs of certiorari,

and prohibition could not be effectively made in respect of

the mofussil

Courts.

The necessity arising out of the peculiar circumstances

to invest the High Courts with the powers to rectify er­

rors committed by subordinate Courts in the exercise of

their jurisdiction and the consequent investiture of power

are indicative of the extent of that power. The power

being one of superintendence and visitorial and vested be­

cause the supervisory jurisdiction to issue writs of cer­

tiorari and prohibition over subordinate Courts m the

mofussil could not be exercised, it would be reasonable t<>

hold that it was intended in the absence of any overriding

reasons disclosed

by the statute (and none such appears

on an examination of the statute) to

be

analogous· with

the jurisdiction

to issue the high prerogative writs and the

..

-

./

'

-

-

4 S.C.R. 'SUPREME COURT REPORTS 417

power of supervision under the Charter Act and its suc­

cessor provisions in the Constitution Acts.

The expression "case" is a word of comprehensive

import :

it includes civil proceedings other than suits, and

is not restricted by anything contained in the section to

the entirety of the proceeding in a civil court. To

inter­

pret the expression "case" as an entire proceeding only and

not a part of a proceeding would

be to impose a

restric­

tion upon the exercise of powers of superintendence which

the jurisdiction to

issue writs, and the supervisory

JU­

risdiction are not subject, and may result in certain

cases in denying relief to an aggrieved litigant where it

is most needed, and may result in perpetration of gross

injustice.

It

may be observed that the majority view of the

High Court

of Allahabad in Buddhulal v. Mewa Ram(')

founded upon the supposition that even though the word

"case" has a wide signification the jurisdiction of the High

Court

can only be invoked from an order m a suit,

where the suit and

not_ a part of it is decided, proceeded

upon the

fallacy that because the expression

"case" inclu­

des a suit, in defining the limits of the jurisdiction confer­

red upon the High Court the expression "suit" should be

substituted in the section when the order sought to be

revised is an order passed in a suit. The expression "case"

includes a suit, but in ascertaining the limits of the juris­

diction of the High Court, there would be no warrant for

equating it with a suit alone.

That

is not to say that the High Court is obliged

to

exercise its jurisdiction when a case is decided by a

subordinate Court and the

conditions in els. (a), (b) or

( c) are satisfied. Exercise

of the jurisdiction is

discre­

tionary : the High Court is not bound to interfere merely

because the conditions are satisfied. The interlocutory

character of the order, the

existence of another remedy to an

aggrieved party

by way of an appeal from the ultimate

order of decree in the proceeding or by a suit, and the

general equities of the

case being served by the order

made are

all matters to be taken into account in

consi­

dering whether the High Court, even in cases where the

conditions which attract the jurisdiction exist, should

excr-

(1) I.L.R. 43 All. 564 (F.B.)

1%3

Maior

S.S. Khanna

v.

Brig.

F. f. Dillon

Shah,/.

1963

Major

S.S. Khanna

v.

Brig.

F. /. Dil/010

--·

Shah, /.

418 SUPREME COURT REPORTS [1964]

cise its jurisdiction .

. The Subordinate Judge in the present case held by an

interlocutory order that the suit

filed by Dillon for re­

covery of the amounts advanced to Khanna was not main­

tainable. That

was manifestly a decision having a direct

bearing on the rights

of Dillon to a decree for recovery of

the loan alleged

to have been advanced by him, which

he

says Khanna agreed to repay, and if the

el:pression

"case" includes a part of the case, the order of the Sub­

ordinate Judge must be regarded as a "case which has

been decided".

The next question which falls to lle determined is

whether the High' Court has power

to

sefaslcle an order

which

does not finally dispose of

the suit, an(f"when from

the

decree or from the final order passed in the proceed­

ing

an appeal is competent. Relying upon the

use of the

expression "in which no appeal lies thereto" in s. 115 Code

of Civil Procedure it was urged that the High Court's

jurisdiction

to entertain a petition in revision could be

exercised only if no appeal lay from the final order passed

in the proceeding. But once it is granted that the

e.'l:­

pression "case" includes a part of a case, there is no escape

from the conclusion that revisional jurisdiction of the

High Court may be exercised irrespective of the ques­

tion whether appeal lies from the ultimate decree or order

passed in tl1e suit. Any other view would impute to the

Legislature an intention

to restrict the exercise of this

salutary jurisdiction

to those comparatively unimportant

suits and proceedings in which the appellate jurisdiction

of the High

Courts is excluded for reasons of public po­

licy. Nor is the expression "in which no appeal lies there­

to" susceptible of the interpretation that it excludes the

exercise of the revisional jurisdiction when an appeal may

be competent from the final order. The use of the word

"in" is not intended to distinguish orders passed in pro­

ceedings not subject to appeal from the final adjudication,

from those from which no appeal

lies. If an appeal lies

against the adjudication directly

to the High

Court, or to

another Court from the decision

of which an appeal lies to the High Court, it has no power to exercise its

revisional jurisdiction, but where the decision itself

is not

appealable

to the High Court directly

or·. Indirectly, exer-

••

..

'. ~-

4 S.C.R. SUPREME· COURT REPORTS 419

.

Cisc o£ the rcviS'ional jurisdiction by the High Cour(woiild

not be deemed excluded. ·The judgment of the Rajasthan

High Court iii· Purohit Swarupnarain v. Gopinath and

another(') on which strong reliance was placed by the

appellant does not; in our judgment, correctly interpret

s. 115 of the Code. In that case the Court relying upon

. an earlier judgment of a Division Bench Pyarchand and

others v. Dungar Singh(') held that "where it is open to

a party to raise a ground of appeal un~er. s. 105 of the Code .

£rnm the final decree _or order, with respect to any

order which

has been

passed during the , pendency of

a suit, it should be held that an appeal in that case lies

to

the High Court within the meaning of the term 'in

which no

appCal lies thereto' appearing in s. 115 Civil Pro­

cedure Code", and the exercise of revisional '.jurisdiction

of

the High Court is excluded. .It was observed in that ease that the use of the word "in" instead of the word

"from" in s. 115 Code of Civil Procedure indicated an in­

tention that if· the order. in question was one· which

could come for consideration before the

High Court in

any form in an appeal that may reach the High Court in

the suit

or proceeding in which the order was passed, the

·

High Court has no revisional jurisdiction. . But the argu­

ment is wholly inconclusive, if it be granted that the word

"case" includes a ,"part of. case. Again on the footing

that the use : of the expression "in" and not "from" indi­

cates SOfi!e . discerruole legislative intent, it IDUSt be · re­

membered that the word "in" has several meanings­

as a preposition and · as an ad verb. The use of the pre­

position "from"-:-in the sense of a source or point of com-..

mencement or distinction-would riot in the context of

the clause, yield to greater clarity,· because the relation

established thereby· would be . between "case" and ap­

peal, and not."decided" and appeal. If the use of ~e

expression "in" is iiiappropriate to express the mean­

ing that the orders not . appealable to the High . Court

were subject to the revisional jurisdiction; the substi-

;. tution of "from" for "in" does not conduce to greater .

luddity: · · ·

In considering whether the rcvisional jurisdiction of

(1) I.L.R. [1953] Raj. 483 F.B.

{') I.L.R. [ 1953] Raj. 608.

1963.

M•ior

S. S. Khann11

....

Brir.

F. f. DiJkm

. Shah, f.

1963

Major

S.S. Khanna

VY

Brig.

F. /. Di/lgn

Shah, f.

420 SUPREME COURT REPORTS [1964]

the High Court was intended to cover decisions, which

did not

dispose of the suit or proceeding, possibility of

delay arising in the disposal of some cases bacause of

in­

vestigation commenced by the High Court is not, in our

judgment, a sound ground

for presuming that the

juris­

diction was to be limited to thos~ matters which were

finally

disposed of.

For the effective exercise of its superintending and

visitorial powers, revisional jurisdiction

is conferred

uppn

the High Court and it would be putting an unwarranted

restriction upon the jurisdiction

of the High

Court to

restrict it

to those cases only where no appeal would reach

the High Court from the final order passed in the

pro­

ceeding. We are therefore unable to agree with the view

which prevailed with the Rajasthan High Court that

there

is a restriction placed upon the power of the High Court in the exercise of the revisional jurisdiction as would

limit the

exercise of that power only to cases where

no appeal is competent from the final order passed in the

suit or pr9ceeding.

The third question

may now be dealt with. By the

order

passed by the Court of First Instance on the third

issue it was held that the suit filed by Dillon was not

maintainable. That

decision, in our judgment, affected the

rights and obligations

of the parties directly. It was a

decision on

an issue relating to the jurisdiction of the

Court to entertain the suit filed by Dillon. In any event

the decision of the Court clearly attracted cl. ( c) of s. 115

Code of Civil Procedure, for the Court in deciding that

"the suit was not maintainable as alleged in paragraphs

15, 16, 17 and 18 of the written statement" purported to

decide what in substance was an issue of fact without a

trial

of the suit on evidence. Dillon alleged in his plaint

that at the request

of Khanna, he had advanced diverse

loans (from the funds lying in deposit in the joint

ac­

count) and that the latter had agreed to repay the loans.

The cause of action for the suit was therefore the loan

advanced in consideration

of a promise to repay the

amount

of the loan, and failure to repay the loan. By his

written statement Khanna had pleaded in paragraph

15

that Dillon had not advanced any money to him and that

Dillon had not claimed the amount for himself and there-

•

-

'

4 S.C.R. SUPREME COURT REPORTS 421

fore he was not entitled to file a suit for recovery of the

amounts.

By paragraph 16 he pleaded that Dillon having

admitted in the plaint that the amounts in suit were to

be paid back to the joint account he was not entitled to

file the suit. By paragraph 17 it was pleaded that a suit

J:iy one joint owner against the other joint owner for re­

covery of the Joint Fund or any item of the joint fund

was not maintainable and

by paragraph 18 he pleaded that

Dillon could not institute a suit against him

because the

amount was not repayable.

All these contentions rai­

sed substantial issues of fact which had to be deci­

ded on evidence, and Dillon could not be non-suited

on the assumption that the pleas raised were correct.

At the threshold

of the trial two problems had to be

faced:

( 1) Whether in a suit to enforce an agreement to

repay an amount advanced in consideration of a

promise

to repay the same, the question as to the

ownership

of the fund out of which the amount

was advanced is material ; and

(2) if the answer is in the affirmative, whether the

fund in fact belonged jointly to Dillon and Khan­

na.

The Judge

of the Court of First Instance unfortunate­

ly assumed without a trial an affirmative answer to both

these questions.

Under 0. 14 r. 2, Code of Civil Proce­

dure, where issues both of law and of fact arise in the

same suit, and the Court

is of opinion that the case or any

part thereof

m_ay be disposed of on the issues of law only,

it shall try

those issues first, and for that purpose may, if it

thinks

fit, postpone the settlement of the issues of fact

until after the

issues of law have been determined. The

jurisdiction to try

issues of law apart from the issues of

fact may be exercised only where in the opinion of the

Court the whole suit

may be disposed of on the issues of

law alone, but the Code confers no jurisdiction upon the

Court

to try a suit on mixed issues of law and fact as pre­

liminary

issues. Normally all the issues in a suit should

be tried by the Court ; not to do so, especially when the

decision on

issues even of law depend upon the decision

of

issues of fact, would result in a lop-sided trial of the

suit.

1963

Major

S.S. Khanna

v.

Brig.

F. /. Dillon

Shah /.

1963

Major

S.S. Khanna

v.

Brig.

F. /. Dillon

Shah, J.

•

Hidayatullah /.

422 SUPREME COURT REPORTS [1%4]

We are at this stage not expressing any opiillon on

the question whether the allegations made

by Dillon and

Khanna are true ; we are only concerned to point out

that what was regarded

as an issue of law as to

main­

tainability of the suit could only be determined after seve­

ral questions of fact in dispute between the parties

were determined. In proceeding to decide the third is­

sue merely on tbe pleadings and on the assumption that

the allegations made

by the defendant in his written

state­

ment were true and those made by the plaintiff were not

true, and on that footing treating the joint account

as of

the common ownership of the two partners, the trial

Judge acted illegally and with material irregularity

in the

exercise of his jurisdiction.

The High Court

was therefore right in setting aside

the order

passed by the Trial Court and in holding that

without investigation

as to the respective claims made by

the parties by their pleadings on the matters in dispute

the suit could not

be held not maintainable.

·

The appeal therefore fails and is dismissed with costs.

There will be one hearing fee for this appeal and also C.A.

321 of 1963.

HmAYATULLAH J.-I have had the advantage of persu­

ing the judgment of my learned brother Shah, J. I agree

with him that

these appeals should be dismissed with costs,

but I propose to give my reasons in brief in a separate

judgment. The

facts have been stated in detail by my

learned brother and I need not repeat them. For the

pur­

pose of my judgment I shall mention only the essential

facts.

Khanna (the appellant) and Dillon (the respondent)

entered into a partnership to

do business but in February

1956, they agreed to dissolve it. A deed was drawn up and

it

was agreed that Dillon was to take over all the assets

and liabilities of the partnership keeping Khanna

indemni­

fied from all liability. Later, a suit was filed for the dis­

solution of the partnership and rendition of accounts but

it ended in a compromise. The compromise nearly re­

affirmed the terms of the earlier deed, but included a con­

dition that all realizations of the old partnership would

be converted into cash and placed in a joint account in

the name of the two partners before being paid towards

··•

•

•

,

4 S.C.R. SUPREME COURT REPORTS 423

liabilities of the partnership.

These appeals arise out of two suits which were filed

by Dillon against Khanna for recovery of certain amounts

aggregating to

Rs. 46,000/-and interest which amounts

Khanna allegedly obtained

as loan from the joint account.

Khanna countered the suits

by contending that as the

money

was still in the joint names of the two partners, the

suits between partners were not maintainable. This plea

led to an

issue in each suit which substantially read as

follows:

"Whether the suit is not maintainable and the plain­

tiff

is not entitled to institute as alleged in paragraphs

Nos.

15, 16, 17 and 18 of the written

statement."

These issues were tried as preliminary and the decision of

the trial judge

was in favour of Khanna in both the suits.

The trial Judge held that the suits were not maintainable,

but, instead

of dismissing the suits there and then, he set

them down for a future date. Revision applications under

s. 115 of the Code of Civil Procedure were filed in the

High Court

by Dillon and were allowed, and the present

appeals have been filed

by Khanna by special leave against

the orders

of the High Court.

The short question that

arises in this case is whether

the High Court

was right in exercising its jurisdiction

under

s. 115 of the Code of Civil Procedure.

Strong

reliance was placed before us upon two decisions of the

Rajasthan High Court reported in Purohit Swarupnarain

v. Gopinath and another(') and Pyarchand and others v.

Dungar Singh(') in which it was held that the jurisdiction

under

s. 115 of the Code of Civil Procedure can only be

exercised in a case in which no appeal lies to the High

Court either directly or indirectly after other appeals. It

was contended that in the present cases appeals would have

lain

to the High Court directly from the decrees, because

both involved large amounts and were tried on the regular

side

and that s. 115 could not be invoked. This has led

to a discussion as to the jurisdiction of the High Court

created

by s. 115 of the Code of Civil Procedure.

The Trial Judge concluded that the suits were for con­

tribution between partners

of a dissolved firm which was

in the process of winding up and that not being suits for

---(') I.LR. [1953] Raj. 483 F.B. (

2

)

I.LR. [1953] Raj.

608.

1963

Maior

S.S. Khanna

...

Brig.

F. /. Dillon

Hidayatullah f.

1963

Major

S.S. Khann•

v.

Brig.

F. /. Dillor.

Hidaytullah, /.

424 SUPREME COURT REPORTS [1964]

general accounts, were not maintainable. There can be

no doubt that by this decision, if it was erroneous, the trial

Judge denied

to himself a jurisdiction to try the suits.

Further it

is plain that the suits, in so far as the trial judge

was concerned, were also over notwithstanding the fact

that

he had fixed them on a subsequent date

"for further

proceedings." The High Court was of the opinion that

the suits were plainly to recover the amounts borrowed

by Khanna from the joint account. The High Court was

right in this. Under the compromise, Dillon was required

to recover the

assests, convert them into cash and put them

into a joint account not only on behalf of himself but under

a power of attorney from Khanna

also on the latter's

behalf, but the cash

was at the disposal of Dillon

provid­

ed he applied it first in liquidation of the joint liability.

Khanna had no share in it except to

see that the liabilities

were first discharged. A borrowing from this joint account

must

be regarded as a loan given by Dhillon to Khanna

and the suits were, therefore, not for contribution but for

recovery

of loans advanced from the joint account.

Th1:

High Court was also right in holding that the trial judge

had no jurisdiction to keep the suits pending before him­

self for "further proceedings" when he had held them to

be not maintainable. The decision of the trial judge being

erroneous and that of the High Court right, the only ques­

tion is whether the High Court properl:11-exercised its juris­

diction under s. 115 of the Code of Oivil Procedure to

correct the error. ,

Section 115 of the Code of Civil Procedure reads as

follows:

"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 a jurisdiction not vested in it

by law, or

(b) to have failed to

exercise of its jurisdiction so

vcs-·

ted, or

( c) to have acted in the exercise of

its jurisdiction

il­

legally or with material irregularity,

the High Court may make such order in the

case as it

thinks

fit".

..

•

..

•

'

•

..

4 S.C.R. SUPREME COURT REPORTS 425

The power which this Section confers is clearly of the

nature of a proceeding on a writ of

Certiorari. But it

differs from that power in many ways.

Certiorari has

many different forms which may

be classified as follows :

(1) Certiorari to remove for trial ;

(2)

Certiorari for Judgment or indictment;

( 3)

Certiorari to quash;

(4)

Certiorari for purposes of execution or

coercive

process;

(5)

Certiorari to remove orders etc., on case stated;

( 6) Certiorari to remove Depositions for Bail; and

(7)

Certiorari to remove Record for use as evidence.

In English Common Law

Certiorari to quash

isrnes

in a completed case and the Common Law is now crystal­

lised

by

Order 58 of the Rules of the Supreme Court. In

America

Certiorari has been differently understood and is

a means of review. That arises from the Special Appellate

jurisdiction of the

United States Supreme Court created by

Statute (See U.S.C.A. Tit. 28, para 1254) and from the fact

that the Supreme Court must of necessity exercise this

puwer

as a part of its appellate jurisdiction.

This supervisory power of the High Court under the

English Law

is not to be confused with visitorial power

of the High Court exercisable

by the writ of Mandamus.

Mandamus

issues to Courts only when justice is delayed

and

is a command to them to hear and dispose of the

case.

There is also the writ of Prohibition which issues to a Court

to stop it from taking upon itself

to examine a cause and

to decide it without legal authority. The writ of

Mandam11s

was evolved much later than the writ of Certiorari and by

Mandamus the Couns were not directed to give any parti­

cular judgment but merely to

give Judgment. An erro­

neous Judgment could

be set aside on appeal or quashed

by Certiorari. Prohibition lay to prevent assumption of

jurisdiction but only before an order was passed.

Certiorari

to quash lay in a completed case on a question of jurisdic­

tion

ano an error of law apparent on the face of the re­

cord. As Lord Sumner observed in Rex v. Nat Bell Li­

quors Ltd.(') :

"Its jurisdiction is to see tl1at the inferior Court has not

exceeded its own, and for that

very reason it is bound -(1ff\922] 2 A.C. 128, 1 i0.

28-2 S. C. In1ia/6i

1963

Major

S.S. Khanna

v

Brig.

F. f. Dillon

Hidaytullah. f.

1963

Major

S. S. Khanna

v.

Brig.

F. ]. Dillon

Hidaytullah,

/.

426

SUPREME COURT REPORTS [1964]

not to interfere in what has been done within that

jurisdiction, for in

so doing it would itself, in turn,

transgress the limits which its own jurisdiction

of

supervision, not of review, is confined. That super­

vision

goes to two points; one is the area of the inferior

jurisdiction and the qualificatiol)s and conditions

of

its exercise; the other is the ohservance of the law in

th~ course of its exercise".

From the above discussion it is apparent that inter­

ference with a

case before an inferior Court by Prerogative

writs could take place under the English Law:

(

ac) by stopping proceedings before the case was decid­

ed by a writ of Prohibition;

(b) ordering the trial

of a case and the delivery of

Judgment by. Mandamus.

( c) quashing an order in a completed case for want

of jurisdiction

or for an error of law apparent on

the

face of the record.

The power

given by s. 115 of the Code is clearly limi­

ted to the keeping of the subordinate courts. within the

bounds of their jurisdiction.

It does not comprehend the

power exercisable under the writs

of Prohibition or Manda­

mus. It is also not a full power of

Certiorari in as much as

it arises only in a case of jurisdiction and not in a case

of error. It has been ruled by the judicial Committee and

also

by this Court that the section is concerned with juris­

diction and jurisdiction alone involving a refusal to

exer­

cise jurisdiction where one exists or an assumption of juris­

diction where. none

exists and lastly acting with

ille~ality

or material irregularity. Where there is no question of

jurisdiction in this manner the decision cannot be corrected

for it has

also been ruled that a Court has jurisdiction to

decide wrongly as we11 as rightly. But once a flaw of

jurisdiction

is found the High Court need not quash and

remit

as is the practice in English Law under the writ

of

Certiorari but pass such order as it thinks fit.

Judged from this angle, the decision of the trial Judge

being erroneous for the reasons pointed out

by my learn­

ed brother

Shah, J ., the trial judge was clearly denying a

jurisdiction

by holding that the suits were not maintain­

able. The only question

is whether these can be said to

be

"cases" "decided" by the Subordinate Judge and whether

•

,,

-

•

-

4 S.C.R. SUPREME COURT REPORTS 427

the suits answer the description "in which no appeal lies",

It may be noticed that the last phrase does not speak of

an appeal 'under the Code'. The description therefore

is a general one and applies to every decision of a court sub­

ordinate to the High Court in which no appeal lies, whe­

ther under the Code or otherwise. A decision of the Sub­

ordinate Court is therefore amenable to the revisional juris­

diction

of the High

Court unless that jurisdiction is clearly

barred

by a special law or an appeal lies therefrom.

The decision in this

case was clearly one which put

an end

to the suits and the fact that the Subordinate Judge

still kept the suits pending before himself for 'further pro­

ceedings' for reasons not very clear did not alter the nature

of the decision. Indeed

as the High Court also

poirited

out, the fact that the Subordinate Judge did. not dismiss

the suits and did not draw up decrees for that purpose,

is itself an exercise of jurisdiction with material irregularity

if not also illegality. In

so far as the parties were con­

cerned the suits were no longer live suits since the decision,

such

as it was, had put an end to them.

It

is however contended on the authority of the two

decisions of the Rajasthan High

Court that the words

'in which no appeal lies' indicate a

case in which no appeal

lies to the High

Court from the final determination either

directly or ultimately and it

is pointed out that in these

suits there would ultimately have

been decrees of dismissal

which would have

been appealable. It is thus urged that

the power under

s. 115 of the

Code of Civil Procedure

could not rightly

be invoked. The opinion of the

Rajas­

than High Court has not been accepted in the other High

Courts and it has been held in a very large number of

cases that the words '.case decided' and the pharse

"in which

no appeal lies" refer not only to the final decision but are

wide enough

to include certain interlocutory orders

involv­

ing jurisdiction and from which no appeal lies under the

Code or otherwise. The words "record of any case ..... .

decided" in this context refer to the record of the proceed­

ings leading upto a decision in which there is an assump­

tion of unwarranted jurisdiction or a denial of an existing

one or a material irregularity or illegality in the exercise of

jurisdiction. Where, however, an appeal

lies from the final

determination

to itself or to another court, the High

Coutt

1963

Major

S.S. Khanna

v

Brig.

F. f. Dillon

Hidaytullali, T.

1963

Major

S.S. Khanna

v

Brig.

F. /. Dillon

Hidayatullah /.

428 SUPREME COURT REPORTS [1964]

in the exercise of its discretion may decline to interfere

at the interlocutory stage unless interference at the earlier

stage tends, to prevent irreparable injury or is otherwise mani­

festly jtist and expedient. Since decisions in most cases tried

by the Subordinate Courts are subject to one or more ap­

peals and one such appeal is to the High Court, and where

there

is no appeal there are special provisions giving even

wider powers of interference

to the High Court by way

of

revision· than those under s. 115, the interpretation put

by the Rajasthan High Court on the section of the Code

would make the power available in a remarkably small

number of

cases. This general power as shown above

was intended to

be used otherwise and the word 'case' does

not .mean a concluded suit or proceeding but each decision

which terminates a part of the controversy involving a

. matter of jurisdiction. Where no question of jurisdiction

is involved the Court's decision cannot be impugned under

s. 115 for it has been said repeatedly a Court has

jurisdic­

tion to decide wrongly as well as rightly.

In my opinion, the construction generally accepted in

the

High Courts is more in keeping with the letter and

spirit of the section considered

as a whole than the view

accepted in the two cited

cases. As I pointed out earlier,

the section confers a power analogous to the power to

issue a writ of

Certiorari but only with a view to keeping

Subordinate Courts within the bounds of their jurisdiction.

This power

is exercisable in respect of all orders involving

jurisdiction in which no appeal

lies to the High Court.

_The

present cases answer the description as the Orders of

the Subordinate Judge were ·erroneous in denying a

jurisdiction and no appeal lay to the

High Court

against them. Even otherwise, the trial judge was in

erro.r

in not dismissing the suits. His decision that the suits.

were not maintainable and yet keeping them pending

was itself an exercise of jurisdiction with a material

irregularity.

If the trial judge had dismissed the suits and

passed decrees there would undoubtedly have been appeals

and no revision would have lain. But the order actually

passed

by him was

not a decree nor even· an order made

appealable

by s.

104 of the Code. Involving as it did a

clear question of jurisdiction it yvas revisable and the High

Court was within its rights in correcting it by the exercise

1.-·

-

•

'

j

y

r

4 S.C.R. SUPREME COURT REPORTS 429

of its powers under s. 115 of the Code.

The appeals must therefore fail and I agree with the

order proposed

by my learned brother

Shah, J.

Appeals dismissed.

•

ALUMINIUM CORPORATION

tl.

THEIR WORKMEN AND ORS.

(P. B. GAJENDRAGADKAR, K. N. w ANCHOO AND K. c. DAS

GUPTA, Jj.)

Industrial DiJ·pute-Award of bonus-Full Bench Formula­

Allou1ance under rehabilitation charges-Burden of proof-Rviden­

Uary valt.te of statements in balance sheets.

The appellant is a manufacturer of aluminium, having two

factories one near Asansol and another in Asansol. A dispute

haviti.g arisen between the appellant and the respondent on the

question of bonus for the year 1957-58 it was referred to the

Industrial Tribunal by the Government of West Bengal. A simi­

lar dispute arose between the appellant and its workmen in the

second factory and this also was referred to the same tribunal. In

the second dispute the parties submitted joint petitions before

the tribunal agreeing to abide

by the award on the bonus

ques­

tion in the first dispute and requesting that sin1ilar award be made

in the second dispute also. In the first dispute the Tribunal

awarded a bonus equivalent

to three months basic wages inclusive

of the amount that had already

been paid by the company volun­

tarily. An a\vard was made in the second dispute also in

similar terms. In determining the amount of available surplus the

Tribunal applied the rules embodied in the Full Bench Formula

which was approved

by this Court in Associated Cement

Co. Ltd.

v. Its workmen, [1959] S.C.R. 925, and allowed Rs. 43 lacs as

return on reserve used as working capital and allowed nothing

under the head rehabilitation charge. The appellant appealed

.against both the awards

by way of special leave granted by this

Court. '

.

On behalf of the appellant it was contended that there was

no justification in rejecting the claim under the head rehabilita­

tion charge. It was urged that the balance sheet of the company

would

by itself show

\Vhat part of reserve was used as work­

ing 01.~ital and a comet way of reaching at the figure of reserve

}963

Major

S. S. Khanna

v

Brig.

F.

/. Dillon

1963

August 14