MEWA RAM Vs. BUDDHU LAL

JUDGEMENT

(1.) The reference to the Full Bench raises the question of the revisional powers of this Court under Section 115 of the Civil P. C.. It appears that the plaintiff resides and carries on business as a cloth merchant in Etawah while the defendants are commission agents who live and carry on business at Cawnpore. A dispute arose between them in connection with the orders given by the plaintiff for the purchase of cloth. The plaintiff thereupon instituted a suit in the Court of the Munsif of Etawah for the recovery of a certain amount by way of damages. One of the pleas taken in defence was that the Court at Etawah had no jurisdiction to entertain the suit, which should have been filed in the Civil Court at Cawnpore. The learned Munsif, instead of trying all the issues raised in the case, proceeded to receive evidence and hear arguments on the question of jurisdiction only. He disposed of the issue of jurisdiction, by his order, dated the 27 of August, 1919, against the defendants. A formal order was drawn up later on, embodying the decision of the issue. The defendants preferred an application in revision from the said order, seeking the interference of this Court under Section 115 of the Code of Civil Procedure. The application came up for hearing before a Bench of two learned Judges of this Court, before whom a preliminary objection was taken on behalf of the plaintiff that the order complained of being an interlocutory order, could not form a fit subject of revision by this Court. In view of conflict of opinion, not only among the different High Courts but in this Court also, the learned Judges have referred the question to a larger Bench. The referring order raises the general question of the competency of this Court to interfere with interlocutory orders, though the arguments have naturally been mostly directed to the particular matter in issue between the parties, namely, whether the defendants whose objection to the jurisdiction of the learned Munsif has been rejected can invoke the aid of this Court under Section 115 of the Civil P. C..

(2.) The other matter upon which the parties are at variance, namely, whether the decision of the Munsif on the plea of jurisdiction is justified by the materials on the record, has not been argued nor has it been referred to us. I, therefore, propose to confine myself to the consideration of the question whether the disposal of the plea of jurisdiction by a court subordinate to this Court, against the party that has taken the objection, can be revised by this Court under Section 115 of the Code of Civil Procedure, and I propose to deal with the question very shortly. It is contended on behalf of the opposite party, the plaintiff in the suit, that the present application is not maintainable because, first, no "case" has been decided within the meaning of Section 115 of the Civil P. C. and, secondly, another remedy is open to the applicant, namely in case of a decree against him he can at the time of appeal question the jurisdiction of the Munsif. It is argued that no case, but a part of the case, has been disposed of. The case is really still pending in the court of the Munsif. The defendants will have time enough to challenge the jurisdiction of the Munsif if a decree is passed against them and they choose to appeal from it. For the applicants the argument is that a case is not the same thing as a suit. The word "case" has a much larger significance. The words "cases which have been decided" are large enough to include any particular question in issue between the parties to suit, which question has been disposed of by a judicial order. As to another remedy being open to the applicants, that has nothing to do with the maintainability of the present application. In Section 115 one of the conditions Required is that no appeal lies from the order complained of. The section does not mean to say that no remedy at any time is open to the aggrieved party. Moreover, it would be small consolation to the applicants to succeed on the plea of jurisdiction on appeal from the decree, after undergoing a great deal of trouble and expense, and have the suit tried by the Cawnpore Courts over again. A large number of cases have been cited by each party in support of its view. I do not propose to mention or discuss them. The divergent views are based upon the meanings of the words "case" and "decided." The case law may be summarized by giving the principles upon which the two conflicting opinions are based. Some of the learned Judges have held that the word "case" is large enough to include an order that deals with an issue or question raised between the parties, and the word "decided" any adjudication or judicial pronouncement on such a question or issue, irrespective of the fact whether such pronouncement determines the trial of the suit in the Court making such pronouncement or not. A contrary view is taken by some other learned Judges. I take the former view and have already been a party to a case where it was given effect to; vide Bhargava & Co. V/s. Jagannath, Bhagwan Das (1919) I.L.R. 41 All. 602. No definition of a "case" or "decided" is given in the Civil P. C.. One of the legal imports of the word "case" according to Wharton is "Trial." I also find that a distinguished Judge of this Court has defined the word "case" in Chattarpal Singh V/s. Raja Ram (1885) I.L.R. 7 All. 661 (665). In that case the question arose whether the rejection of an application to sue in forma pauperis could be revised by this Court. During the course of the arguments the meaning of the word "case" was also agitated. Mr. Justice Mahmood defined the word thus: "The word case as used in Section 622 of the Civil P. C. is nowhere defined, but adopting the general rule of construing statutes I hold that the word should be understood in its broadest and most ordinary sense unless there were specific reasons for narrowing its meaning. I confess I am unware of any such reasons, and limiting the arguments to orders under Section 407 of the Civil P. C.. I should say as a general rule that that which might constitute the subject of an appeal would necessarily be a case." I adopt the definition of the word "case" given by Mr. Justice Mahmood. It is true that he guarded himself by confining it to cases under Section 407 of the old Code, i.e., to cases of suitors who applied for leave to sue in forma pauperis, but I think that it is the best working definition and should be applied to other cases also It cannot be, and is not, denied that the order of the learned Munsif complained of might constitute the subject of an appeal. The effect of the order, therefore, is a case decided. The objection that another remedy is open to the applicants if a decree passed against them is not sustainable upon the language of Section 115 of the Civil P. C., which requires that no appeal lies from the decision objected to. I would, therefore, hold that the present application is entertainable by this Court. Piggott, J.

(3.) The plaintiff in this case keeps a cloth shop at Etawah; the defendants arc dealers in cloth, carrying on business at Cawnpore. The plaintiff instituted a suit in the court of the Munsif of Etawah, claiming a sum of money as damages on account of an alleged breach of contract. The defendants filed a written statement in which they raised a number of pleas. One of these was to the effect that the court of the Munsif of Etawah had no jurisdiction to entertain the suit. The plaintiff on the other hand alleged that his cause of action had arisen, in part at any rate, within the local limits of that court, so that Clause (c) of Section 20 of the Code of Civil Procedure (Act No. V of 1908) gave him the option of resorting to this tribunal instead of to any court at Cawnpore, within the local limits of whose jurisdiction the defendants reside or carry on business. The issue thus raised was stated by the Munsif of Etawah in the following words: "Is the suit cognizable by this or the Civil Courts of Cawnpore"? This was a mixed issue of fact and of law, for the court required both oral and documentary evidence to enable it to pronounce judgment upon it. The position, therefore, was not precisely that contemplated by Order XIV, Rule 2, of the Civil P. C.; but representations must have been made to to the court that it would be convenient to the parties if this issue were tried out first, before the parties were called upon to produce evidence on any of the other issues raised. The learned Munsif fell in with this view and fixed a date for the trial of of this issue only. He took the evidence tendered by the parties and recorded his finding, "with the reasons therefor", as required by Order XX, Rule 5, of the Civil P. C.. The decision is to the effect that "the suit is cognizable by this court", and the order passed thereupon is "that the suit be fixed for hearing on some date convenient to the parties". The learned Munsif went further and drew up a "formal order", a sort of preliminary decree, beginning with the words, "This case coining up for hearing", and ending with: "It was ordered that the suit was cognizable by this court". It seems beyond question that the trial court intended, presumably with the consent of the parties, to detach this question of jurisdiction from the remaining questions raised by the pleadings and to dispose of it as separate matter preliminary to the trial of the "suit" proper. It seems worth noticing at once that, if the decision of the learned Munsif upon this issue had been in the opposite sense, the correct legal consequence would not have been a decree dismissing the suit, but an order that the plaint "be returned to be presented to the court in which the suit should, have been instituted"; vide Order VII, Rule 10, of the Code of Civil Procedure. From such an order an appeal lies under Order XLIII, Rule 1(a), read with Section 104 of the said Code; and in the present case the appeal would have lain to the Court of the District Judge. It is, therefore, clear that if the plaintiff in the suit had felt dissatisfied with the decision of the trial court upon the question of jurisdiction, he could have claimed as of right to have that decision reviewed by a higher tribunal, but that this tribunal would have been the court of the District Judge, any further right of appeal being expressly excluded by Section 104(2) of the Civil P. C..