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Revisional Jurisdiction Of High Court: Section 115 Code Of Civil Procedure

Revision: Section 115 of the Code deals with the revisional jurisdiction of the High Court. It provides that 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
  1. to have exercised jurisdiction not vested in it by law, or
  2. to have failed to exercise a jurisdiction so vested. or
  3. to have acted in the exercise of its jurisdiction illegally or with material irregularity.

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

Provided that the High Court shall not under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding.

The High Court shall not under Section 115, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court under Section 115 (3).

Explanation: In Section 115, the expression any case which has been decided includes any order made or any order deciding an issue, in the course of suit or other proceeding.

The High Court's revisional power cannot be invoked unless the following conditions exist:

  1. there must be a case decided;
  2. the court deciding the case must be subordinate to the High Court;
  3. no appeal should lie to the High Court against the decision;
  4. in deciding the case the subordinate court must appear to have;
    (a) exercised a jurisdiction not vested in it by law; or
    (b) failed to exercise a jurisdiction vested in it by law; or
    (c) acted in the exercise of its jurisdiction illegally or with material irregularity.
In the exercise of revisional powers it is not the duty of the High Court to enter into the merits of the evidence. It has only to see whether the requirements of the law have been duly and properly obeyed by the court whose order is the subject of revision and whether the irregularity as to failure of exercise of jurisdiction is such as to justify interference with the order as mentioned in Dinshaw Iron Works v. Mitakhan Adamji. [1] (The power to interfere under Section 115 is much circumscribed.

Unless the lower appellate court had exercised jurisdiction where it had none or exercised it illegally or with material irregularity, the High Court cannot interfere with the order of the lower appellate court even when the order sought to be revised be erroneous or not in accordance with the law as occurred in Rajaram Nathuji Pathode v. Maniran Samtha Kose, [2]

Whether a particular order is expedient or not is not a ground on which the High Court can interfere under Section 115 C.P.C.

Section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. But the mere fact that the decision of the lower court is erroneous whether it be upon question of fact or of law does not amount to an illegality or material irregularity.

Therefore, the High Court will not interfere in the exercise of its revisional jurisdiction merely because the lower court wrongly decides that a particular suit is barred by res judicata or that it is barred by limitation or because it proceeds upon an erroneous construction of the various provisions of an Act.

In Amir Hasan v. Sheo Baksh Singh, [3] it was emphasized by their Lordships of the Judicial Committee that where the subordinate court has jurisdiction to determine a question, it has jurisdiction to decide wrong as well as right and that a wrong decision is not an irregular exercise of jurisdiction. The judicial Commissioner of the High Court has no jurisdiction in such a case.

Again the exercise of revisional jurisdiction under this section is purely discretionary. Muhammad Naimullah v. Ibanullah [4], if the lower court has acted without jurisdiction or acted illegally in the exercise of jurisdiction, the High Court will not interfere if the result of an irregularity has been to promote justice. The powers will only be exercised for the prevention of injustice. Again the revisional power will not ordinarily be exercised so long as there is any other remedy available either by suit or appeal.

In N.S. Venkatagiri Ayyanger v. The Hindu Religious Endownments Board Madras. [5] P.C.A. No. 94 of 1947, decided on January 24, 1949 it was observed by their Lordships of the Judicial Committee that there is no justification for the view that Section 115 of the Code of Civil Procedure was intended to authorize the High Court to interfere and correct gross and palpable error of subordinate courts so as to prevent gross injustice in non-appealable cases. It only applies to cases in which no appeal lies and where the Legislature has provided no right of appeal the manifest intention is that the order of the trial court, right or wrong, shall be final.

The section empowers the High Court to satisfy itself upon three matters:

  1. that the order of the subordinate court is within its jurisdiction,
  2. that the case is one in which the court ought to exercise jurisdiction,
  3. that in exercising jurisdiction the court has not acted illegally, that is in breach of some provision of law or with material irregularity.

If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly from the conclusions of the subordinate court upon questions of fact or law.

Section 115 applies to any case divided. The majority of the High Courts appear to share the view that the case is wide enough to include an interlocutory order. The interlocutory order which can be revised should be orders from which no appeal lies to the High Court. The Allahabad High Court, however, held that an interlocutory order was not case decided, within the meaning of Section 115 C.P.C. and consequently no revision lay from it.

The Supreme Court has now set the controversy at rest by holding that the expression ‘case’ is a word of comprehensive importance; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court.

To interpret the expression ‘case’ as an entire proceeding only and not a part of a proceeding would be to impose restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs and the supervisory jurisdiction are not subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice.

It has accordingly been held that an interlocutory order holding that the plaintiffs suit for the recovery of money advanced to the defendant was not maintainable must be regarded as a ‘case' which has been decided. It has further been held that there is no such restriction placed upon the power of the High Court in the exercise of revisional jurisdiction as would limit the exercise of that power only to cases where no appeal is competent from the final order passed in the suit or proceeding Major S.S. Khanna v. Brig. FJ. Dhillon, [6].

A case may be said to be decided, it the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115, C.P.C. Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd. & Ors., [7] 

Are the powers of the High Court in revision available for correction of the gross errors of law, if the result of those errors vitally affects the case?
The powers of the High Court in revision are not available for correction of errors of law, however gross those errors may be, and whatever may be the result of those errors on the merits of the case.

This power of the High Court is only available where the High Court could legitimately hold that the court below has exceeded its jurisdiction, or has refrained from exercising a jurisdiction vested in it, or it acted illegally or with material irregularity in the exercise of that jurisdiction, namely committed such an error of procedure a mandatory procedure and the error had resulted in failure of justice or some such thing.

The High Court at Allahabad while enunciating the above principles went to the length of holding in Sheo Kumar Dwiwedi v. Shri Thakur Ji Maharaj [8] that where possibly the court below committed an  error in regard to its view of what was formal defect within the meaning of Rule 1 of Order. 23 (relating to withdrawal of suit or abandonment of part of claim), or an error in regard to what could be deemed sufficient grounds within the meaning of rule 1 (3) (b) of Order 23 of the Code of Civil Procedure. The error was at best an error of law and not an error that in any manner affected the jurisdiction of that court to make or refuses to make an order which that Court could under the provisions of Order 23, and therefore the revisional jurisdiction could not be exercised.

Analysis of Amir Hasan v. Sheo Baksh Singh [11 LA. 237] Case:

Facts: The facts of the case were Raja Amir Hasan Khan brought a suit for possession on redemption of a three-fourths share in Kaka Khanpur. The trial court viz., the Assistant Commissioner decreed the suit and the decree were affirmed by the District Judge of Sitapur.

The decree became final under Section 622 of Act X of 1877. On an application in revision tiled by Sheo Baksh Singh, the Judicial Commissioner did not had that the first court had no jurisdiction, but found that the courts below had exercised their jurisdiction illegally and to the material prejudice of the applicant; and thereon founded the decree appealed from. Thereupon the plaintiff Amir Hasan preferred an appeal to the Privy Council.

Question for determination: The question that fell for decision of their Lordships of the Judicial Committee was as to whether the Judicial Commissioner had under Section 622 of Act X of 1877 as amended by Section 92 of Act XII of 1879, jurisdiction in the case.

Judgment: Sir Barnes Peacock in delivering the Judgment of the Board observed:

According to Section 21 of Act XII of 1879 there was no appeal in this case from the lower Court of Appeal to the Judicial Commissioner. But Section 622 of Act X of 1877 enacted that the High Court and in this respect the Judicial Commissioner exercised the same powers as the High Court-may call for the record of any case in which no appeal lies to the High Court if the court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested and may pass such order in the case as the High Court thinks fit. By Section 92 of Act XII of 1879 that section was amended by the insertion after the words so vestedthe following words or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The question then is, did the judges of the lower courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity.

It appears that they had perfect jurisdiction to decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly they did not exercise their jurisdiction illegally or with material irregularity. The Judicial Commissioner had no jurisdiction in the case. It was accordingly held that the appeal he allowed, judgment of the Judicial Commissioner be reversed and respondents pay the costs incurred before the Judicial Commissioner and also of the Privy Council appeal.

References:
  1. Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the Code of Civl Procedure, 1908, 11th  Edn., 2015).
  2. C. K. Takwani, Civil Procedure, (8th ed. 2018)
  3. M P Jain, Indian Constitutional law, Lexis Nexis Butterworths Wadhwa.
  4. J. N. Pandey, The Constitutional law of India, Central Law Agency.
End Notes:
  1. (1943) Bom. 33
  2. AIR 1975 Bom. 11.
  3. (11 LA. 237).
  4. (1822) 14 All. 226.
  5. P.C.A. No. 94 of 1947, decided on January 24, 1949.
  6. AIR 1964 SC 497.
  7. AIR 1970 SC 406.
  8. (1957) A.L.J. 536.

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