BUDDHOO LAL Vs. MEWA RAM

JUDGEMENT

(1.) The Reference to the Fall Bench raises the question of the revisional powers of this Court under Section 115 of the Civil Procedure Code. It appears that the plaintiff resides and carries on business as a sloth 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 tin Civil Court at Cawnporer. 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 be his order dated die 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 raid order, seeking the interference of this Court under Section 115 of the Code of Civil Procedure. The application same 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 net 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 Mursif has been rejested, can invoke the aid of this Court under Section 115 of the Civil Procedure Court, The other matter upon which the parties are at variance, Lamely, whet Let the decision of the Munsif on the plea of jurisdiction is justified by the materials on the record, has not been argusd, nor, has it been referred to us 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 an be revised by this Court under Section 115 of the Civil P. C., and I propose to deal with the question vary shortly. It in 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 & decree against him he can at the time of appeal question the jurisdiction of the Munsif. It in 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 Musnif. The defendants will have time enough to challenge the jurisdiction of the Munsif if a decree id pasted against there and they choose to appeal from it. For the applicants the argument in that a decree is not the same thing as a suit. The word "case" has a much larger significance. The words "case which has been decided" are large enough to include any particular question in issue between the parties to a suit, with 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 eruditions required is that no appeal lies from the order complained of. The section does not mean to say that no remedy pt any time is open to the aggrieved party. Moreover, it would be small correlation 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 case have been sited by fash 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 (sic) "case" and "decided," The case is may be summarised by giving the principles upon which the two consisting opinion are lased. Some of the learned Judges have help what 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 fast. 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 bare already been a party to a case where it was given effect to vide Bharga a & Co. V/s. Jagem bath Bhagwan Dass 5 Ind. Cas. 331 : 41 A. 602 : 17 A.L.J. 718 : 1 U.P.L.R. (A.) 120. No definition of a case "or" decided is given in the Civil Procedure Code. 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 A.W.N. (1885) 156 : 4 Ind. Dec. (N.S.) 864 : 7 A. 661 at p. 664, In the sale the question arose whether the rejection of an application to sue in forma pauper is could be revised by this Court. Daring the conuse 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 1 hold that the word should be understood in its most broadest and most ordinary sense, unites there were specific reasons for narrowing its meaning. I confess I am unaware of any such reason, and limiting the arguments to orders under Section 407 of the Civil Procedure Code, I should say as a general proposition 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 form a 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, there fore, is a case decided. The objection that another remedy is open to the applicants if a decree is passed against them, is not sustain able upon the language of Section 115 of the Civil Procedure Code, 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.

(2.) The plaintiff in this case keeps a cloth shop at Etawah; the defendants are dealers in sloth carrying on business at Cawnpore. The plaintiff instituted a suit in the Court of the Munsif of Etawab, claiming a sum of money as damages on account of an alleged bench 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 band, alleged that his cause of action had arisen, in part at any rate, within the local omits of that Court so that Clause (c) of Section 20 of the Civil P. C. (Act V of 1906) 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 this suit cognizable by this or the Civil Courts of Cawnpore?" This was a mixed issue of fast 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 the Court that it would be convenient to the parties if this issue were tried out first, before the parties were sailed 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 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 Procedure Code, 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 Mansif went further ant drew up a "formal order," a sort of preliminary decree, beginning with the words: "This case coming up for hearing," land 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 a separate matter preliminary to the trial of the "suit" proper. It seems with 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, bat 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 Civil Procedure Code. From such an order an appeal lies under Order XLIII, Rule (I)(a), read with Section 184 of the said Code; and in the pre wit case the appeal would have lain to the Court of the District Jugs. It is, therefore, clear that if tab plaintiff in this suit had felt dissatisfied with the derision of the trial Court upon the question of jurisdiction he could have claimed as of right to have that decision reviewed by a higher Tribuna, bat that this Triounal would have been the Court of the District Judge, any further right of appeal being expressly excluded by Section 104(2) of the Civil Procedure Code.

(3.) It so happens that it is the defendants who are dissatisfied with he decision of the Munsif of Etawah upon the question of jurisdiction; they have invoked the revisional jurisdiction of this Court as defined and limited by Section 115 of the Civil Procedure Code. They ask this Court to re-consider the materials upon which the learned Munsif arrived at the conclusion that the plaintiff had established a cause of action arising, in part at any rate, within the local limits of the jurisdiction of his Court. On behalf of the plaintiff the point has been taken, by way of a preliminary objection, that it is not open to this Court to examine the record, because it is not the record of any case which has been decided," within the meaning of that expression as used in Section 15 of the Civil P. C., Subsidiary to this main contention the argument has also been advanced that this Court ought not to interfere in revision because the defendants, in the event of the suit resulting in a decree in their favour, will not have been injured by the decision on the question of jurisdiction, while, in the event of a decree bring passed against them, the law gives them a right of appeal against the decree and in such appeal it would be open to them to take the paint that the Court of the Munsif of Etawah had no jurisdiction to pass any such decree.