RAMPRASAD RAMNARAYAN Vs. HARISCHANDRA DWARKADAS

JUDGEMENT

(1.) THIS is a reference under Section 29 of the High Court of Judicature Act. The learned Judge who made this reference has not specifically mentioned the points in his order of reference. But a perusal of the order shows that the following points have been referred to us: (1) Whether this Court has jurisdiction to entertain revisions against interlocutory orders? (2) If the High Court has jurisdiction can a revision be entertained touching the question of onus of proof? Although until recently there had been a sharp difference of opinion with regard to the interpretation of the words case decided', the preponderance of opinion is now in favour of the liberal interpretation of the words 'case decided' used in Section 115 of the Code of Civil Procedure. One group of High Courts like Allahabad, Lucknow, Sind and until recently Lahore favoured a more restricted interpretation of the word 'case'. While the High Courts of Calcutta, Madras, Nagpur, Orissa and Patna have all along favoured a more liberal interpretation of the word 'Case' used in Section 115, Code of Civil Procedure Allahabad High Court has, except in very few cases, held the view that the word 'Case' used in Section 115 is identical with the word 'suit'. This view is based on the group (sic) that although the word 'case' is more comprehensive than the word 'suit' no instance can be quoted of its use in the Code where it would not at least include a suit and that where the case in which the revisional jurisdiction of the High Court is invoked happens to be also a suit then the suit which requires to be decided before the record is called for. The same view has been taken by Oudh High Court and in some of the earlier cases of Bombay High Court. Lahore High Court also took the same view until the decision of the Full Bench case of - 'Bibi Gurudevi v. Mohammad Bakhsh' reported in, AIR 1943 Lah. 65 (FB). The Full Bench dissented from the view taken by an earlier Full Bench in - 'Lal Chand Mangal Sain v. Beharilal Mehar Chand, 5 Lah 288. Bhide J. who wrote the principal judgment observed as follows:

(2.) THE High Court of Bombay also accepted the narrow interpretation of the word 'case' in some of its earlier cases on the ground that 'case' does not include a branch of a case. Vide 'Senaji Kapurchand v. Pannaji Devichand' : AIR 1932 Bom 81 and - 'Isa Adam v. Bai Mariam' AIR 1927 Bom. 664. But in a recent case it has favoured liberal interpretation of the word 'case' Vide - 'Municipal Borough of Ahmedabad v. Aryodaya Ginning and Manufacturing Co. Ltd., AIR 1941 Bom. 361 and - 'Jamnadas Vrijlal v. Chandulal Jamnadas' : AIR 1937 Bom. 167. As already stated the High Courts of Calcutta, Madras, Orissa and Patna have all along held the view that the High Court has jurisdiction to entertain revisions against interlocutory orders. Vide - 'Surpat Singh v. Ratan Chand' : AIR 1940 Cal 92; - 'Lakshmidevamma v. Nagayya, AIR 1949 Mad 369 - 'Chandra Kishore v. Babulal Agarwala : AIR 1949 Ori 77 and -'Shiba Prasad v. Nilabji Bali' : AIR 1947 Pat 45.

(3.) TURNING now to the question as to whether revision, touching the question of the onus of proof, can be entertained or not, we have to examine whether the language of Section 115 allows scope for such interference or not. In this case there is not so much a question of exercising jurisdiction riot vested or failure to exercise jurisdiction vested. The question mainly is whether the lower court has acted in the exercise of its jurisdiction illegally or with material irregularity. It has been held that where the law has prescribed the manner in which a court shall, exercise its jurisdiction and the court acts in disregard of those provisions, it acts illegally or irregularly in the exercise of jurisdiction. But where the court exercises its jurisdiction in the mariner prescribed but arrives at a conclusion or decision which is erroneous in law or fact it does not act illegally or with material irregularity. Vide - 'Lakshmi Shanker v. Rama Kant' : AIR 1950 All 144; - 'Abdul Majid v. A. Dalip Singh' : AIR 1949 All 744; - 'Dominion of India v. Hazari Lal' : AIR 1949 Pat 410 (FB). In - 'Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras' : AIR 1949 P.C. 156, their Lordships of the Privy Council observed as follows: