DEVI RAM Vs. MURLI

JUDGEMENT

(1.) THIS is a defendants' application in revision, and it arises in the following circumstances.

(2.) THE plaintiff respondent filed a suit against the defendants petitioners for recovery of possession of an agricultural holding two bighas in area and Rs. 424/ as mesne profits, being value of produce of the land from Sayar 1950 to Nyah 1952, on the allegations that the land belonged to the plaintiff but was in wrongful possession of the defendants, that the plaintiff accordingly dispossessed them and himself obtained possession of the land, but that the defendants had again usurped possession thereon since Sayar of 1950. The defendants traversed the plaint allegations and set their own title, and they also pleaded that as the relief of recovery of mesne profits could only be granted by a revenue Court the entire suit was liable to be returned for presentation to that Court.

(3.) THE learned counsel for the plaintiff respondent took the preliminary objection that as the mere recording of a finding on a question of jurisdiction did not amount to a case decided, the revision was not competent. In support of his argument he cited 'Prakash Chand. v. Mahendra Kumar', AIR 1948 All 288 (A), where it was held that no revision lay from an order under Order 14, Rule 5(2), Civil P. C., striking out issues as being not material to the decision of the case since such an order was an interlocutory order not amounting to a case decided. He also relied upon 'Ghani v. Mustafa Khan', AIR 1948 Oudh 305 (B). The latter ruling is totally irrelevant, for it related to whether a remand order by an appellate Court was open to appeal or revision. I am quite aware of the conflict of judicial opinion among the various High Courts as to whether an interlocutory order amounted to a case decided within the purview of Section 115, Civil P. C. I however prefer the Full Bench decision of the Lahore High Court in 'Bibi Gurdevi v. Md. Bakhsh', AIR 1943 Lah 65 (FB) (C), in which it was held that the word 'case' in Section 115 was of a very wide import and meant any state of facts juridically considered, and that therefore an interlocutory order deciding any substantial question in controversy between the parties so as to affect their rights, as distinguished from a purely formal or incidental order, amounts to a case decided within the meaning of Section 115, even though such an order is passed in the course of the trial of a suit. I do so because if a Court which has no jurisdiction at all to try a case proceeds to try it on an erroneous decision on an issue as to jurisdiction, a great deal of time and money will be wasted if the error is patent and yet cannot be rectified till the final decision of the suit. I overrule the preliminary objection and hold that the revision is competent.