MAJOR S. S. KHANNA versus BRIG. F.J. DILLON

HmAYATULLAH J.-I have had the advantage of persuing 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 purpose of my judgment I shall mention only the essential facts.

p. 422

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 indemnified from all liability. Later, a suit was filed for the dissolution of the partnership and rendition of accounts but it ended in a compromise. The compromise nearly reaffirmed the terms of the earlier deed, but included a condition 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 liabilities of the partnership.

pp. 422–423

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:

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"Whether the suit is not maintainable and the plaintiff is not entitled to institute as alleged in paragraphs

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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.

p. 423

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.

p. 423

The Trial Judge concluded that the suits were for contribution 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. ( I.LR. [1953] Raj. 608.

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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 provided 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 himself 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 question is whether the High Court properl:11-exercised its jurisdiction under s. 115 of the Code of Oivil Procedure to correct the error. ,

p. 424

Section 115 of the Code of Civil Procedure reads as follows:

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"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

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by law, or (b) to have failed to exercise of its jurisdiction so vcs- ·

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ted, or ( c) to have acted in the exercise of its jurisdiction il-

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legally or with material irregularity,

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the High Court may make such order in the case as it thinks fit".

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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 :

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(1) Certiorari to remove for trial ; (2) Certiorari for Judgment or indictment; ( 3) Certiorari to quash; (4) Certiorari for purposes of execution or coercive

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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.

p. 425

In English Common Law Certiorari to quash isrnes in a completed case and the Common Law is now crystallised 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.

p. 425

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 particular judgment but merely to give Judgment. An erroneous 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 jurisdiction ano an error of law apparent on the face of the record. As Lord Sumner observed in Rex v. Nat Bell Liquors Ltd.(') :

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

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exceeded its own, and for that very reason it is bound -(1ff\922] 2 A.C. 128, 1 i0. 28-2 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 supervision 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".

pp. 425–426

From the above discussion it is apparent that interference with a case before an inferior Court by Prerogative writs could take place under the English Law:

p. 426

( ac) by stopping proceedings before the case was decid-

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ed by a writ of Prohibition; (b) ordering the trial of a case and the delivery of

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Judgment by. Mandamus. ( c) quashing an order in a completed case for want of jurisdiction or for an error of law apparent on

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the face of the record.

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The power given by s. 115 of the Code is clearly limited 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 Mandamus. 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 jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction 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.

p. 426

Judged from this angle, the decision of the trial Judge being erroneous for the reasons pointed out by my learned brother Shah, J ., the trial judge was clearly denying a jurisdiction by holding that the suits were not maintainable. The only question is whether these can be said to be "cases" "decided" by the Subordinate Judge and whether 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 subordinate to the High Court in which no appeal lies, whether under the Code or otherwise. A decision of the Subordinate Court is therefore amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies therefrom.

pp. 426–427

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 proceedings' 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 concerned the suits were no longer live suits since the decision, such as it was, had put an end to them.

p. 427

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 Rajasthan 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 involving 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 proceedings leading upto a decision in which there is an assumption 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 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 manifestly jtist and expedient. Since decisions in most cases tried by the Subordinate Courts are subject to one or more appeals 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 jurisdiction to decide wrongly as well as rightly.

pp. 427–428

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 of its powers under s. 115 of the Code.

pp. 428–429

The appeals must therefore fail and I agree with the order proposed by my learned brother Shah, J.

p. 429

Appeals dismissed. ALUMINIUM CORPORATION

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THEIR WORKMEN AND ORS. (P. B. K. N. w K. c.

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Jj.)

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Industrial DiJ·pute-Award of bonus-Full Bench Formula- Allou1ance under rehabilitation charges-Burden of proof-Rviden- The

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it Industrial Tribunal by the Government West Bengal. A simi-

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In

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by in

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Associated Cement Co. Ltd. Its workmen,

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The

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On no

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It ing 01.~ital and a comet

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