"Jurisdiction is not given for the sake of the judge, but for that of the
In law, common law1 (also known as judicial precedent or judge-made law, or case
law) is the body of law created by judges and similar quasi-judicial tribunals
by virtue of being stated in written opinions. The defining characteristic of
"common law" is that it arises as precedent. In cases where the parties disagree
on what the law is, a common law court looks to past precedential decisions of
relevant courts, and synthesizes the principles of those past cases as
applicable to the current facts. If a similar dispute has been resolved in the
past, the court is usually bound to follow the reasoning used in the prior
decision (a principle known as stare decisis).
If, however, the court finds that
the current dispute is fundamentally distinct from all previous cases (called a
"matter of first impression"), and legislative statutes are either silent or
ambiguous on the question, judges have the authority and duty to resolve the
issue (one party or the other has to win, and on disagreements of law, judges
make that decision).
The court states an opinion that gives reasons for the
decision, and those reasons agglomerate with past decisions as precedent to bind
future judges and litigants. Common law, as the body of law made by judges,
stands in contrast to and on equal footing with statutes which are adopted
through the legislative process, and regulations which are promulgated by the
executive branch (the interactions among these different sources of law are
explained later in this article). Stare decisis, the principle that cases should
be decided according to consistent principled rules so that similar facts will
yield similar results, lies at the heart of all common law systems.
The common law: so named because it was "common" to all the king's courts across
England-originated in the practices of the courts of the English kings in the
centuries following the Norman Conquest in 1066. The British Empire later spread
the English legal system to its far-flung colonies, many of which retain the
common law system today. These "common law systems" are legal systems that give
great weight to judicial precedent, and to the style of reasoning inherited from
the English legal system.
Post-partition, India retained its common law system. Much of contemporary
Indian law shows substantial European and American influence. Legislation first
introduced by the British is still in effect in modified form today. During the
drafting of the Indian Constitution, laws from Ireland, the United States,
Britain, and France were all synthesized to produce a refined set of Indian
Indian laws also adhere to the United Nations guidelines on human rights
law and environmental law. Certain international trade laws, such as those on
intellectual property, are also enforced in India. The exception to this rule is
in the state of Goa, annexed in stages in the 1960s through 1980s. In Goa, a
Portuguese uniform civil code is in place, in which all religions have a common
law regarding marriages, divorces and adoption.
The Code of Civil Procedure2, 1908 is a procedural law related to the
administration of civil proceedings in India. The Code is divided into two
parts: the first part contains 158 sections and the second part contains the
First Schedule, which has 51 Orders and Rules. The sections provide provisions
related to general principles of jurisdiction whereas the Orders and Rules
prescribe procedures and method that govern civil proceedings in India.
uniformity to Civil Procedure, Legislative Council of India, enacted Code of
Civil Procedure, 1858, which received the assent of Governor-General on 23 March
1859. The Code however, was not applicable to the Supreme Court in the
Presidency Towns and to the Presidency Small Cause Courts. It did not meet the
challenges and was replaced by Code of Civil Procedure Code, 1877.
But still it
did not fulfill the requirements of time and large amendments were introduced.
In 1882, the Code of Civil Procedure, 1882 was introduced. With passing of time
it is felt that it needed flexibility for timeliness and effectiveness. To meet
these problems Code of Civil Procedure, 1908 was enacted. Though it has been
amended number of times it has withstood the test of time.
Indian Civil Procedure Code
The law can be broadly classified as:
- Substantive Law, and
- Procedural Law.
The Substantive Law, whether it is based on statute law or common law, defines
what facts are constituting a fact or liability. To say, in other words, the
Substantive law defines various principles regarding the rights and liabilities.
(Example: The Indian Penal Code, 1860 which describes various offenses
punishable under Criminal acts).
On the contrary, the Procedural law or adjective law, on the other hand,
prescribes the procedure and machinery for the enforcement of those rights and
liabilities. To say, in other words, the procedural law is concerned with
enforcement of those rights and liabilities determined in accordance with the
rules of the substantive law. (Example: The Code of Civil Procedure 1908, The
Code of Criminal Procedure, 1973 etc).
The Law regulating the procedure to be followed in civil court is governed by
the Civil Procedure Code and this Civil Procedure Code is one of the most
important branches of the procedural law. The Law relating to the practices and
procedure to be followed in the Civil Courts is regulated by the Code of Civil
Procedure, 1908. The word CODE means 'a systematic collection of statutes, body
of laws so arranged as to avoid inconsistency and overlapping '.
The main object of this civil procedure code is to consolidate and amend the
laws relating to the procedure and practices followed in the Civil Courts in
India. As such, it was enshrined in the preamble of the code that it was enacted
to consolidate and amend the laws relating to the procedure to be followed in
the civil courts having civil jurisdiction in India. The Civil Procedure Code
regulates every action in civil courts and the parties before it till the
execution of the degree and order. The Aim of the Procedural law is to implement
the principles of Substantive law. This Code ensures fair justice by enforcing
the rights and liabilities.
The Code is exhaustive on the matters directly dealt by it but it is
comprehensive in other issues. The framers of the code could not foresee the
possible circumstances which may arise in the future litigations and could not
provide the procedure for such situations. Hence the framers of the code
(legislature) provided inherent powers to the court to meet such circumstances
(where the code could not provide a procedure) according to the principles of
natural justice, equity and good conscience.
As this Code is a general
procedural law, it does not contradict with the local or special law in force.
In the event of any conflict between the civil procedure code and the special
law, the special law will prevail over the civil procedure code. In case the
local or general law is silent on any matter, then the provisions of the civil
procedure code will prevail.
In simple words3 jurisdiction can be defined as the limit of judicial authority
or the extent to which a court of law can exercise its authority over suits,
cases, appeals and other proceedings. The rationale behind introducing the
concept of jurisdiction in law is that a court should be able to try and
adjudicate only in those matters with which it has some connection or which
falls within the territorial or pecuniary limits of its authority.
Section 9 of
the Civil Procedure Code, 1908 confers jurisdiction over the civil courts to
adjudicate upon all suits of civil nature, except such suits the cognizance of
which is either expressly or implied barred. In other words whenever the object
of the proceedings is the enforcement of civil rights, a civil court would have
jurisdiction to entertain the suit unless the cognizance of the same is barred
through a legislative instrument.
Disputes relating to property, breach of
contracts, wrongs committed in money transactions, etc. are categorized as civil
wrongs and could be subject to a civil process. In such cases civil suits should
be instituted by the aggrieved persons. Civil wrongs are redressed before civil
courts by granting injunctions or by payment of damages or compensation to the
aggrieved party. As a matter of fact, every suit should be instituted before the
court of lowest jurisdiction.
In the civil side the Munsif's Court is the court
of lowest of the jurisdiction. Hence, it is clear that the jurisdiction of the
Civil Court does not extend to all matters but might be limited in certain
cases. Thus, the current position regarding the jurisdiction of Civil Courts is
that they have inherent jurisdiction to heat into all civil matters unless it is
expressly or implied excluded by a statute.
"Order" means the formal expression of any decision of a civil Court which is
not a decree.
So, the adjudication of the court which is not a decree is an order. As a
general rule, an order of a court is founded on the objective considerations and
as such judicial order must contain a discussion of the question at issue and
the reasons which prevailed the court which led to the passing of the order.
Orders are of 2 kinds: Appealable and Non appealable 5
CPC does not define the term 'appeal' nor is it defined in the General Clauses
Act, 1897. According to Black's law dictionary, appeal is a legal proceeding
wherein a case is taken to a higher judiciary to review and/or revise the decree
or judgment pronounced by a lower court. The right to the first appeal is not a
natural right. It means that a person does not have a right to appeal by virtue
of the fact that a decision has been made by a court against him. Right to the
first appeal is a statutory right which is granted in certain circumstances by
the statute and unless it is specifically granted, it cannot be exercised.
"Non-Appealable Order" means an order, judgment, or other decree5 (including any
modification or amendment thereof) that remains in effect and is final and has
not been reversed, withdrawn, vacated, or stayed, and as to which the time to
appeal or seek review, rehearing, or writ of certiorari has expired and as to
which no appeal, petition for certiorari, or other proceedings for re-argument or
rehearing shall then be pending or as to which, if such an appeal, writ of
certiorari, review, re-argument, or rehearing has been sought, (a) appeal,
c.ertiorari, review, reargument, or rehearing has been denied or dismissed and
the time to take any further appeal or petition for certiorari, review,
re-argument, or rehearing has expired; or (b) such order has been affirmed by the
highest court to or in which such order was appealed, reviewed, reargued, or
reheard, or that granted certiorari, and the time to take any further appeal or
petition for certiorari, review, reargument, or rehearing has expired.
Revision means to go through something carefully, thoroughly and diligently.
Cases can be revised by the High Court as it possesses revisional jurisdiction
as defined under Section 115 of the Code of Civil Procedure. The High Court has
the right to revise cases decided by subordinate courts to ensure delivery of
justice and maintenance of fairness.
Jurisdiction can be elucidated as the limitation of judicial authority or the
extent to which a court of law can exercise its authority over suits, cases,
appeals and other proceedings. The logic of introducing the concept of
jurisdiction in law is that a court should be able to try and adjudicate only in
those matters with which it has some connection or which falls within the
territorial or pecuniary limits of its authority. If a court of law doesn' t
stick to its jurisdictional authority, that is, it goes ultra-vires, it may lead
to a miscarriage of law. To err is human, and judges are after all humans too
and do have the potential to commit some legal mistakes. And when it does, we
the people of India have a right to appeal against such injustice.
This is where
Section 115 of the CPC comes in. Section 115 of CPC is firmly established as a
key instrument in correcting jurisdictional errors by judges of subordinate
courts. Investigating and understanding Section 115 of CPC is a continuing
concern within Indian legal academia. In recent years, there has been an
increasing interest in this particular section, owing to the fact that novice
judges do as they please.
However, the core problem of this section is that very
few people are aware or understand it, which is a bad situation as it leaves
open the possibilities of failure of justice. This research paper seeks to
remedy these problems by analyzing the section by taking a look at the law in
general and landmark case laws to clarify our understanding of Section 115 of
Types Of Jurisdictions
Before we move4 further on, It is necessary to look at the various types of
jurisdiction, as its necessary to understand this aspect given the fact that
Section 115 of the CPC deals with jurisdiction related issues only.
- Territorial or local jurisdiction
Under this territorial or local jurisdiction, the geographical limits of a
court's authority are clearly delineated and specified. It cannot exercise
authority beyond that geographical/ territorial limit. For example, if a certain
crime is committed in Madhya Pradesh, only the courts of law within the borders
of Madhya Pradesh can hear and decide the case. Furthermore, Section 16 of the
Code of Civil Procedure explains the territorial jurisdiction on the grounds of
the location of the immovable property.
In the case of Harshad Chiman Lal Modi
Vs D.L.F Universal Ltd , the court interpreted Section 16 that the suit
pertaining to immovable property should be brought to the court. The court does
not have the power to decide the rights of property which are not situated.
However, the court can still pass a relief if the opposite party agrees to try
the suit in such a case.
- Pecuniary jurisdiction
Pecuniary means 'related to capital.' It approaches the question of whether the
court is competent to try the case of the financial value. The code allows
analysing the case unless the suit's value exceeds the financial limit of the
court. Section 15 of the Code of Civil Procedure commands the organisation of
the suit in the court of the low grade. It refers to pecuniary jurisdiction of
Civil court. It is a course of the method and it does not affect the
jurisdiction of the court.
The main objective of establishing pecuniary
jurisdiction is to prevent the court of a higher level from getting burdened and
to provide assistance to the parties. However, the court shall interfere if it
finds the judgment to be wrong. For example, 'A 'wants to accuse 'B' due to a
violation of the contract to obtain Rs 5000 in Bombay.
The Bombay High Court has
original jurisdiction and small causes court with the jurisdiction up to Rs
50000. So, a suit to obtain Rs 5000 should ideally be dealt with small causes
court. In the case of Karan Singh Vs Chaman Paswan the plaintiff filed a suit in
the subordinate court involving an amount of Rs 2950, but the court rejected the
case. Later his next appeal was allowed by the High Court, but it ordered him to
pay the deficit amount.
The appellant contested that the decision of the
district court will be a nullity, but the High Court dismissed the claim. Later
the Supreme Court confirmed the decision of the High Court declaring that the
decision of district court won't be void.
- Jurisdiction as to the subject matter
The subject matter can be defined as the authority vested in a court to
understand and try cases concerning a special type of subject matter. In other
words, it means that some courts are banned from hearing cases of a certain
nature. No question of choices can be decided by the court which do not have
subject matter jurisdiction. Section 21 of the Code of Civil Procedure is
related to the stage challenging the jurisdiction.
For Example, "Ranveer", a
resident of Sonipat bought a food item of 'AA' brand that was plagued with
pests. He should prosecute 'ZZ' company in Sonipat District forum rather than
District Civil Court of Sonipat.
- Original and appellate jurisdiction
Appellate jurisdiction refers to the court's authority to review or rehearsal
the cases that have been already decided in the lower courts. In the Indian
circumstances, both the High Court and Supreme Court have the appellate
jurisdiction to take the subjects that are bought in the form of appeals.
Original Jurisdiction refers to the court's authority to take notice of cases
that could be decided in these courts in the first instance itself. Unlike
appellate jurisdiction wherein courts review the previously decided matter, here
the cases are heard afresh.
- Exclusive and concurrent jurisdiction
In Civil Procedure, exclusive jurisdiction means where a single court has the
authority to decide a case to the rejection of all the courts. This jurisdiction
is decided on the basis of the subject matter dealt with by a specific court.
For example, the U.S District courts have particular jurisdiction on insolvency
Concurrent jurisdiction exists where two or more courts from different systems
simultaneously have jurisdiction over a particular case. In this situation,
parties will try to have their civil or criminal case heard in the court that
they perceive will be most favourable to them.
- General and special jurisdiction
General jurisdiction means that general courts do not limit themselves to
hearing only one type of cases. This type of jurisdiction means that a court has
the power to hear all types of cases. So the court that has general jurisdiction
can hear criminal, civil, family court case and much more.
Specific jurisdiction is the ability of the court to hear a lawsuit in a state
other than the defendant's home state if that defendant has minimum contacts
within the state where the suit will be tried.
- Legal and equitable jurisdiction
Equitable jurisdiction belongs to the authorities of the courts to take specific
actions and pass some orders in order to deliver an equitable and reasonable
outcome. These judgments are usually outside the purview of law, in the sense
that support provided by the courts may not be necessarily confirmed by the
In the case of K.K.Velusamy Vs N.Palanisamy, the Supreme Court of India
held that Section 151 does not give any special jurisdiction to civil courts,
but only presents for the application of discretionary power to achieve the ends
of justice. This suggests that the court cannot give any such order which may be
denied under any law in such an order that may be prohibited under any law in
order to achieve the ends of justice. This would lead to the conclusion that
such equitable jurisdiction is secondary to the authority of the courts to
implement the law.
- Expounding and expanding jurisdiction
Expounding jurisdiction means to describe, clarify and explain jurisdiction.
Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is
the duty of the court to clarify its jurisdiction and it is not proper for the
court to extend its jurisdiction.
Relevant Laws And Doctrine
Section 115 of CPC. Revision
- 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:
- to have exercised a jurisdiction not vested in it by law, or
- to have failed to exercise a jurisdiction so vested, or
- to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court may make such order in the case as it
- 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
- The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
- 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
In this section, the expression "any case which has been decided"
includes any order made, or any order deciding an issue in the course of a suit
or other proceeding.]
Article 131 of the Schedule of Limitation Act provides a limitation period of 90
days for filing the revision under the Code of Civil Procedure from the date of
decree or order or sentence sought to be revised. Thus, the limitation period
prescribed for filing the revision against the impugned order is 90 days. The
application for revision must be filed with the High Court within the limitation
Article 226 in The Constitution Of India 1949226. Power of High Courts to issue certain writs
- Notwithstanding anything in Article 32 every High Court shall have
powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred
by Part III and for any other purpose.
- The power conferred by clause (1) to issue directions, orders or writs
to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which
the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories
- Where any party against whom an interim order, whether by way of
injunction or stay or in any other manner, is made on, or in any proceedings
relating to, a petition under clause (1), without:
- Furnishing to such party copies of such petition and all documents in
support of the plea for such interim order; and
- Giving such party an opportunity of being heard, makes an application to
the High Court for the vacation of such order and furnishes a copy of such
application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period
of two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next
day afterwards on which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period, or, as the
case may be, the expiry of the aid next day, stand vacated
- The power conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme court by clause ( 2 ) of
Article 227 in The Constitution Of India 1949227. Power of superintendence over all courts by the High Court
- Every High Court shall have superintendence over all courts and
tribunals throughout the territories interrelation to which it exercises
- Without prejudice to the generality of the foregoing provisions, the
High Court may:
- call for returns from such courts;
- make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and
- prescribe forms in which books, entries and accounts shall be kept by
the officers of any such courts
- The High Court may also settle tables of fees to be allowed to the
sheriff and all clerks and officers of such courts and to attorneys,
advocates and pleaders practising therein: Provided that any rules made, forms prescribed or
tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with
the provision of any law for the time being in force, and shall require the
previous approval of the Governor
- Nothing in this article shall be deemed to confer on a High Court power
of superintendence over any court or tribunal constituted by or under any
law relating to the Armed Forces
In law, certiorari7 is a court process to seek judicial review of a decision of
a lower court or government agency. Certiorari comes from the name of an English
prerogative writ, issued by a superior court to direct that the record of the
lower court be sent to the superior court for review. The term is Latin for "to
be made certain", and comes from the opening line of such writs, which
traditionally began with the Latin words "Certiorari volumus..." (We wish to be
A writ of certiorari or a writ in the nature of certiorari can only be issued by
the Supreme court under Art. 32 and a High court under Art. 226 to direct
inferior courts, tribunals or authorities to transmit to the court the record of
proceedings disposed of or pending therein for scrutiny and , if necessary, for
quashing the same. But a writ of certiorari can never be issued to call for the
record or papers and proceedings of an Act or Ordinance and for quashing such an
Act or Ordinance.
Certiorari under Art. 226 is issued for correcting gross error of jurisdiction
i.e. when a subordinate court is found to have acted (1) without jurisdiction or
by assuming jurisdiction where there exists none, or (2) in excess of its
jurisdiction by over stepping or crossing the limits of jurisdiction or (3)
acting in flagrant disregard of law or rules of procedure or acting in violation
of principles of natural justice where there is no procedure specified and
thereby occasioning failure of justice.
Landmark And Influential Cases (PU Atlest 3 Cases)
Such like matters frequently arise before the High Courts. We sum up our
conclusions in a nutshell, even at the risk of repetition and state the same as
- Major S. S. Khanna vs Brig. F.J. Dillon on 14 August, 1963
Facts: The appellant and the respondent entered into a partnership to do
business as Construction Engineers but in February 1956 they agreed to dissolve
it. It was agreed that the respondent was to take over all the assets and
liabilities of the partnership and keep the appellant indemnified from all
Later on, a suit was filed by the appellant for dissolution of
partnership and rendition of accounts. That suit ended in a compromise which
provided that all realizations of the old partnership would be converted into
cash and placed in joint account in the name of the two partners before being
paid towards the liabilities of the partnership.
The respondent filed two suits
against the appellant for recovery of certain amounts on the allegation that the
appellant had taken that amount as loan. The defense of the appellant was that
as the money was still in the joint name of the two partners and he had taken
the money from the joint account, suits between the two partners were not
In preliminary issues raised in 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 Petitions Filed:
Against the findings of the trial Judge, revision
petitions were filed in the High Court under s. 115 of the Code of Civil
Procedure. The High Court set aside the orders passed by the Trial judge and
held that the suits could not be held as not maintainable.
Appeal Against Hc Judgment:
The appellant appealed by special leave. The
appellant challenged the order of the High Court on the ground that the order of
the trial Judge did not amount to "a case which has been decided" within the
meaning of s. 115 of Code of Civil Procedure, that the decrees which may be
passed in the suits being subject to appeal to the High Court, the power of the
High Court was by the express terms of s. 115 excluded, and that the orders of
the trial Judge did not fall within any of the three clauses (a), (b) and (c) of
The High Court was right in setting aside the order passed by
the trial Judge and in holding that without investigation as to the respective
claims made by the parties by their pleadings on the matters in dispute, the
suits could not be held as not maintainable. The decision of the trial Judge
affected the rights and obligations of the parties directly. It was the decision
on an issue relating to the jurisdiction of the court to entertain the suit
filed by the respondent. The decision attracted cl. (c) of s. 115 of the Code of
Revisional Jurisdiction Of The HC:
High Court is not bound to interfere merely
because the conditions are satisfied. The interlocutory character of the order,
existence of another remedy to the aggrieved party by way of appeal from the
ultimate order or decree in the proceeding or by a suit, and the general
equities of the case being served by the order made are all matters to be taken
into account in considering whether the High Court even in cases where the
conditions which attract the jurisdiction exist, should exercise its
Revisional jurisdiction of the high Court may be exercised
irrespective of the question whether ;an appeal lies thereto from the ultimate
decree or order passed in the suit or not. The expression "in which no appeal
lies thereto" does not mean that it excludes the exercise of the revisional
jurisdiction when an appeal may be competent to the High Court from the final
If an appeal lies against the adjudication directly to the-High Court or
to another court from the decision of which an appeal lies to the High Court, it
has no power to exercise its revisional jurisdiction against the adjudication,
but where the decision itself is not appealable to the High Court directly or
indirectly, exercise of the revisional jurisdiction by the High Court would not
be deemed excluded.
A decision of the subordinate Court is amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly
barred by a special law or an appeal lies there from. The decision of the trial
Judge was erroneous because he denied himself the jurisdiction of holding that
the suits were not maintainable.
The fact that he did not dismiss the suits and
did not draw up decrees for that purpose, was 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 as the decision had put an
end to them. The word "case" in s. 115 does not mean a concluded suit or
proceeding but each decision which terminates a part of the controversy
involving a matter of jurisdiction.
- Amir Hasan vs Sheo Baksh Singh, (11 I.A. 237)
The facts of the case were as under: 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 filed by Sheo Baksh Singh, the Judicial Commissioner did not find 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.
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
By Section 92 of Act XII of 1879 that section was amended by the insertion after
the words "so vested' the 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
The Judicial Commissioner had no jurisdiction in the case. It was accordingly
held that the appeal is 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.
- Surya Dev Rai vs. Ram Chander Rai and Ors. Civil Appeal No. 6110 of 2003
[Arising out of S.L.P. (c) No. 12492 of 2002]
The appellant filed a suit, for issuance of permanent preventive injunction
based on his title and possession over the suit property which is a piece of
agricultural land, in the Court of Civil Judge. He also sought for relief by way
of ad interim injunction under Order XXXIX Rules 1 and 2 of the C.P.C. The
prayer was rejected by the trial court as also by the appellate court. Feeling
aggrieved thereby the appellant filed a petition (C.M.W.P.No. 20038 of 2002) In
the High Court labeling it as one under Article 226 of the Constitution.
High Court has summarily dismissed the petition forming an opinion that the
petition was not maintainable as the appellant was seeking interim injunction
against private respondents. Reference is made in the impugned order to a Full
Bench decision Allahabad High Court in Ganga Saran v. Civil Judge, Hapur,
Ghaziabad and Ors. MANU/UP/0025/1991 : AIR1991All114 . Earlier the remedy of
final civil revision under Section 115 of the C.P.C. could have been availed of
by the appellant herein but that remedy is not available to the appellant
because of the amendment made in Section 115 of the C.P.C. by Amendment Act 46
of 1999 w.e.f. 01.07.2002.
This appeal raises a question of frequent occurrence before the High Courts as
to what is the impact of the amendment in Section 115 of the C.P.C. brought in
by Act 46 of 1999 w.e.f. 01.07.2002.
On the power and jurisdiction of the High
Court to entertain petitions seeking a writ of certiorari under Article 226 of
the Constitution or invoking the power of superintendence under Article 227 of
the Constitution as against similar orders, acts or proceedings of the courts
subordinate to the High Courts, against which earlier the remedy of filing civil
revision under Section 115 of the C.P.C. was available to the person aggrieved.
Is an aggrieved person completely deprived of the remedy of judicial review, if
he has lost at the hands of the original court and the appellate court though a
case of gross failure of justice having been occasioned, can be made out?
Conclusion And Personal Opinion
- Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section
115 of Code of Civil Procedure cannot and does not affect in any manner the
jurisdiction of the High Court under Articles 226 and 227 of the
- Interlocutory orders, passed by the courts subordinate to the High
Court, against which remedy of revision has been excluded by the CPC
Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and
continue to be subject to, certiorari and supervisory jurisdiction of the
- Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction, i.e., when a subordinate court is
found to have acted:
- without jurisdiction - by assuming jurisdiction where there exists none,
- in excess of its jurisdiction - by overstepping or crossing the limits
of jurisdiction, or
- acting in flagrant disregard of law or the rules or procedure or acting
in violation of principles of natural justice where there is no procedure
specified, and thereby occasioning failure of justice.
- Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate courts within the bounds of their
jurisdiction. When the subordinate Court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction which it does have or
the jurisdiction though available is being exercised by the Court in a
manner not permitted by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to exercise its supervisory
- Be it a writ of certiorari or the exercise of supervisory jurisdiction,
none is available to correct mere errors of fact or of law unless the
following requirements are satisfied: (i) the error is manifest and apparent on the face
of the proceedings such as when it is based on clear ignorance or utter
disregard of the provisions of law, and (ii) a grave injustice or gross failure
of justice has occasioned thereby.
- A patent error is an error which is self-evident, i.e., which can be
perceived or demonstrated without involving into any lengthy or complicated
argument or a long-drawn process of reasoning. Where two inferences are
reasonably possible and the subordinate court has chosen to take one view
the error cannot be called gross or patent.
- The power to issue a writ of certiorari and the supervisory jurisdiction
are to be exercised sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to act lest a gross
failure of justice or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked
during the pendency of any suit or proceedings in a subordinate court and the
error though calling for correction is yet capable of being corrected at the
conclusion of the proceedings in an appeal or revision preferred there against
and entertaining a petition invoking certiorari or supervisory jurisdiction of
High Court would obstruct the smooth flow and/or early disposal of the suit or
The High Court may feel inclined to intervene where the error is
such, as, if not corrected at that very moment, may become incapable of
correction at a later stage and refusal to intervene would result in travesty of
justice or where such refusal itself would result in prolonging of the lis.
- The High Court in exercise of certiorari or supervisory jurisdiction
will not covert itself into a Court of Appeal and indulge in re-appreciation
or evaluation of evidence or correct errors in drawing inferences or correct
errors of mere formal or technical character.
- In practice, the parameters for exercising jurisdiction to issue a writ
of certiorari and those calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised by the High Courts in
India unlike English courts has almost obliterated the distinction between
the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari the High Court
may annual or set aside the at, order or proceedings of the subordinate
courts but cannot substitute its own decision in place thereof. In exercise
of supervisory jurisdiction the High Court may not only give suitable
directions so as to guide the subordinate court as to the manner in which it
would act or proceed thereafter or afresh, the High Court may in appropriate
cases itself make an order in supersession or substitution of the order of the
subordinate court as the court should have made in the facts and circumstances
of the case.
Current research paper was to understand, analyze and
investigate Section 115 of the CPC, Revision means to go through something
carefully, thoroughly and diligently. Cases can be revised by the High Court as
it possesses revisional jurisdiction as defined under Section 115 of the Code of
Civil Procedure. The High Court has the right to revise cases decided by
subordinate courts to ensure delivery of justice and maintenance of fairness.
After a comprehensive perusal of all the research material, I can conclude that
in my opinion the primary objective of a revisional authority of the High Court
empowered by Section 115 is to ensure that no subordinate court acts
arbitrarily, illegally, capriciously, irregularly or exceeds its jurisdiction;
and allows the High Court to guarantee the delivery of justice while ensuring
that the proceedings are conducted in accordance with the rule of law and
furtherance of fairness.
It must be noted that the judges of subordinate courts
have the absolute authority to decide on cases. They do not commit any
"jurisdictional error" even when they wrongfully or extra-judicially decide a
case. The High Court has the power to revise these jurisdictional errors
committed by subordinate courts. This provides an opportunity to any aggrieved
party to rectify a non-appealable order by a subordinate court.
The High Court can revise any case by a subordinate court in which no appeal
The High Court's revisional power cannot be invoked unless the following
- The subordinate court has exercised jurisdiction not vested in it by
- The subordinate court has failed to exercise jurisdiction vested in it
- The subordinate court exercises its jurisdiction illegally or with
material irregularity or in breach of some provision of the law or by
committing some errors of procedure in the course of the trial which may
have affected the ultimate decision.
- There Must Be A Case Decided;
- The Court Deciding The Case Must Be Subordinate To The High Court;
- No Appeal Should Lie To The High Court Against The Decision;
- In Deciding The Case The Subordinate Court Must Appear To Have:
- Exercised A Jurisdiction Not Vested In It By Law; Or
- Failed To Exercise A Jurisdiction Vested In It By Law; Or
- Acted In The Exercise Of Its Jurisdiction Illegally Or With Material
The power of revision of the High Court is exceptional and should be exercised
when necessary in cases where there is a defect in the proceedings due to
jurisdictional error in the subordinate courts which may result in a miscarriage
of justice and beats the purpose of the rule of law. 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. 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 be revised be erroneous or not in
accordance with the law.
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
The unique features of revision that I've noticed and noted down are: An
application for revision can only be made to the High Court challenging any
decision of the subordinate court when no appeal lies against the decision in
the specified case. The revisional power is under the discretion of the High
Court and cannot be claimed as a right by any aggrieved party. Any case can be
revised on the grounds of jurisdictional error by the subordinate court.The High
Court can exercise the powers of revision by suo moto and filing an application
is not necessary.
A revision can be invoked only when no appeal (either first or second) lies in
the High Court or any subordinate court., The High Court cannot interfere with
an order passed by the subordinate court even if it is unlawful and wrong as
long as it lies under the court's jurisdiction., A question of fact cannot be
decided during the exercise of revisional jurisdiction., The High Court may
decide to decline an application for revision if it is felt that substantial
justice has been done.
Revisional proceedings can begin either by an application filed by an aggrieved
party or suo moto by the High Court. Revision is done on the grounds of
jurisdictional errors committed by a subordinate court which is to be rectified
by the High Court. The order passed to exercise revisional jurisdiction is non-appealable
and cannot be challenged.
The authority of revision can only be exercised by the High Court under which
revisional jurisdiction lies. Power of revision is only judicial and not
administrative. Power of revision is statutory and can be abolished by the new
legislation. Revisional powers have less application and cannot be exercised in
all conditions as Section 115 is restricted.
To conclude, one of the more significant findings to emerge from this study is
that The power of revision of the High Court is exceptional and should be
exercised when necessary, in cases where there is a defect in the proceedings
due to jurisdictional error in the subordinate courts which may result in a
miscarriage of justice and beats the purpose of the rule of law.
The revisional powers are granted to the High Courts to ensure that there is a
remedy to the aggrieved party in case the system of justice falters due to
jurisdictional errors. The High Court has been granted the power to revise a
case if it is observed that a subordinate court has not acted according to the
power vested in it by law under its jurisdiction.
This research extends our knowledge of section 115 of the CPC specifically and
Jurisdictional powers of our courts in general. The findings of this study
should have a number of important implications for future practicing lawyers and
judges if they have any confusions regarding the jurisdictional scope of courts
in the Indian legal system and how to solve such problems should they arise.
Written By: Mohammed Arafat Mujib Khan