Major S. S. Khanna vs Brig. F.J. Dillon

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 320 of 1963

Decision Date: 14 August 1963

Coram: J.C. Shah, A.K. Sarkar, M. Hidayatullah

The case was Major S. S. Khanna versus Brigadier F. J. Dillon decided on 14 August 1963. The matter was heard by the Supreme Court of India and the judgment was authored by Justice J. C. Shah. The bench comprised Justice J. C. Shah, Justice A. K. Sarkar and Justice M. Hidayatullah. The petitioner was Major S. S. Khanna and the respondent was Brigadier F. J. Dillon. The citation of the decision appears in the 1964 All India Reporter at page 497 and also in the 1964 Supreme Court Reporter at volume four page 409, with citator references in the 1970 Supreme Court Reports at page 406, the 1973 Supreme Court Reports at page 1096 and the 1988 Supreme Court Reports at page 812. The statutory issue concerned the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure, 1908 and the meaning of the word “case” in that provision, together with the question of separate trials of issues of law and issues of fact. The headnote sets out the factual background. The appellant and the respondent had earlier formed a partnership under the name Construction Engineers. In February 1956 the partners agreed to dissolve the partnership. The agreement provided that the respondent would assume all assets and liabilities of the partnership and that the appellant would be indemnified against any further liability. Subsequently the appellant instituted a suit for dissolution of the partnership and for a rendering of accounts. That suit was concluded by way of a compromise. The compromise stipulated that all realizations of the old partnership would be converted into cash, placed in a joint account in the names of the two partners, and thereafter used to discharge the partnership liabilities. After the compromise the respondent instituted two suits against the appellant seeking recovery of certain sums that the respondent alleged the appellant had taken as a loan. The appellant defended the suits on the ground that the disputed money remained in the joint account in the names of both partners and that therefore a suit between the partners was not maintainable. When the trial judge considered the preliminary issues raised in the suits, he held that the suits were not maintainable. However, instead of dismissing the suits outright, the trial judge adjourned them to a later date. The appellant challenged the trial judge’s order by filing revision petitions in the High Court under section 115 of the Code of Civil Procedure. The High Court set aside the trial judge’s orders and held that the suits could not be dismissed as non‑maintainable. The appellant then obtained special leave to appeal to the Supreme Court. In the appeal the appellant contended that the trial judge’s order did not constitute “a case which has been decided” within the meaning of section 115, that because decrees in the suits were subject to appeal to the High Court the statutory power of the High Court was expressly excluded, and that the trial judge’s order did not fall within any of the three sub‑clauses (a), (b) or (c) of section 115. The Supreme Court rejected those contentions.

The Court held that the High Court was correct in setting aside the order made by the trial Judge. The trial Judge had ruled that, without a proper investigation into the respective claims pleaded by the parties, the suits could be declared non‑maintainable. The Court explained that such a ruling affected the parties’ rights and obligations directly, because it decided an issue relating to the jurisdiction of the court to entertain the suit filed by the respondent. Consequently, the decision fell within clause (c) of section 115 of the Code of Civil Procedure. Referring to the observations of Justices Sarkar and Shah, the Court described the word “case” as having a comprehensive meaning. It includes civil proceedings other than suits and is not limited by section 115 to the whole proceeding in a civil court. Interpreting “case” to mean only an entire proceeding and not a part of it would unduly restrict the supervisory powers of the High Court. Such a restriction could, in some situations, deny relief to an aggrieved litigant when it is most needed and could lead to gross injustice.

The Court further stated that the High Court is not obligated to exercise its revisional jurisdiction merely because a subordinate court has decided a case and the conditions of clauses (a), (b) or (c) of section 115 are fulfilled. The power to intervene is discretionary, and the High Court is not bound to interfere simply because the statutory conditions are met. In exercising that discretion, the Court must consider the interlocutory nature of the order, the availability of another remedy to the aggrieved party—such as an appeal from the final decree or a suit—and the general equities served by the order. The Court observed that the High Court may exercise its revisional jurisdiction regardless of whether an appeal lies from the ultimate decree or order. The phrase “in which no appeal lies thereto” does not exclude revisional jurisdiction when an appeal to the High Court is possible from the final order. The word “in” is not intended to differentiate orders that are not subject to appeal from those that have no appeal at all. If an appeal lies directly to the High Court, or to another court whose decision can be appealed to the High Court, then the High Court cannot revisit that adjudication. However, where the decision itself is not appealable to the High Court, either directly or indirectly, the revisional jurisdiction remains available. Finally, the Court noted that under Order 14, rule 2, both questions of law and fact may arise in the same suit, and the Court may decide how to proceed accordingly.

The Court observed that when both factual and legal questions arise in the same suit, and the Court is of the opinion that the case or any part of it could be decided solely on the legal issues, the Court must first determine those legal issues. For that purpose the Court may, if it considers it appropriate, postpone the resolution of the factual issues until after the legal questions have been settled. The Court further explained that the power to try legal questions apart from factual ones may be exercised only when, in the Court’s opinion, the entire suit can be disposed of on the basis of law alone. The Code of Civil Procedure, however, does not grant the Court any authority to try a suit on a mix of legal and factual questions as preliminary matters. The Court cautioned that ordinarily all issues in a suit should be tried together; failure to do so, especially where the decision on legal issues depends on factual findings, would result in an unbalanced trial.

Per Justice Hidayatullah, a decision of a subordinate Court was subject to the revisional jurisdiction of the High Court unless that jurisdiction was expressly barred by a special law or an appeal lay from the decision. The phrase “in which no appeal lies” was held not to refer only to appeals under the Code but to apply generally to every decision of a court subordinate to the High Court where no appeal is available, whether the appeal is governed by the Code or by any other law. The trial Judge’s decision was found to be erroneous because he denied himself the jurisdiction to hold that the suits were not maintainable. The fact that he neither dismissed the suits nor issued decrees to that effect was itself an exercise of jurisdiction that involved material irregularity, if not outright illegality. Consequently, for the parties concerned, the suits were no longer live suits since the decision had effectively terminated them. The Court clarified that the word “case” in section 115 does not denote a concluded suit or proceeding but each decision that terminates a portion of the controversy involving a jurisdictional matter. Where no question of jurisdiction arises, a court’s decision cannot be challenged under section 115, because the court retains the authority to decide both correctly and incorrectly. The Court referred to the authorities in Balakrishna Udayar v. Vasudeva Aiyar, L.R. 44 I.A. 261; Ryots of Garabandho v. Zamindar of Parlakimedi, L.R. 70 I.A. 129; Budhulal v. Mewa Ram, I.L.R. 43 All. 564 (F.B.); Purohit Swarupnaraian v. Gopinath, I.L.R. (1933) Raj. 483 (F.B.); Pyarchand v. Dungar Singh, I.L.R. (1953) Raj. 608; and Rex v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128. The judgment then proceeded to the civil appellate jurisdiction, noting that Civil Appeal No. 320 of 1963 was filed by special leave against the judgment and order dated 26 October 1962 of the Punjab High Court at Delhi in Civil Revisions Nos. 525 and 526‑D of 1960, and listing the counsel appearing for the appellant.

On 14 August 1963, counsel Shiv Charan Singh and S N Anand appeared for the respondent in both appeals. The judgment of Justices A K Sarkar and J C Shah was delivered by Justice Shah, while Justice M Hidayatullah rendered a separate opinion. Justice Shah observed that Brigadier F J Dillon and Major S S Khanna, hereinafter referred to as “Dillon” and “Khanna,” had been carrying on a business partnership as construction engineers. The partners had agreed to dissolve the partnership effective 15 February 1956. By means of a deed of dissolution they stipulated that Dillon would become the absolute owner of all partnership assets and properties, would discharge all debts and liabilities of the partnership, and would indemnify Khanna against any demands or claims arising from the partnership business. The deed, however, did not put an end to the disputes between the former partners. Consequently, Khanna instituted suit before the Subordinate Judge, First Class, Delhi, seeking dissolution of the partnership and rendition of accounts. On 12 January 1957 the parties reached a compromise, which the court incorporated into a decree affirming the earlier dissolution and providing a winding‑up scheme. Under that scheme all amounts realized from the firm’s debtors and the proceeds of certain asset sales were to be deposited into a bank account opened jointly in the names of Dillon and Khanna. The funds in that account were to be applied first to the liabilities of the dissolved firm, and any surplus was to belong to Dillon. Dillon subsequently collected some outstanding amounts of the dissolved partnership and placed them in the joint account. Thereafter Dillon filed a suit in the same Subordinate Court seeking a decree for Rs 54,250 with future interest, alleging that between May 1957 and November 1957, at Khanna’s request, he had advanced three short‑term loans totalling Rs 46,000, which Khanna had promised to repay but failed to do so. Khanna denied having borrowed any money from Dillon and contended that even if the amounts had been advanced, they were drawn from joint funds belonging to both partners, and that a recovery action under those circumstances was not maintainable in law. The trial court framed several issues, the third of which concerned the maintainability of the suit, specifically whether the plaintiff was entitled to institute the suit as alleged in paragraphs 15 to 18 of the written statement filed at Khanna’s request. That issue was tried as a preliminary question, and the court held that a suit brought by one partner against another partner of a dissolved firm that was in the process of winding up, and concerning advances from partnership assets, was not maintainable. The Punjab High Court, exercising its revisional jurisdiction, set aside that finding.

The court had set aside the earlier order and directed that the suit should be heard and disposed of in accordance with law. With special leave, Khanna filed the present appeal challenging the High Court’s jurisdiction to set aside that order under section 115 of the Code of Civil Procedure.

Khanna questioned the High Court’s power on three separate grounds. First, he argued that the order in question did not constitute “a case which has been decided” for the purposes of section 115. Second, he maintained that because a decree in the suit could be appealed to the High Court, the statutory language of section 115 expressly excluded the High Court’s power in this circumstance. Third, he contended that the order did not fall within any of the three sub‑clauses (a), (b) or (c) listed in section 115.

The discussion turned on the proper interpretation of section 115 of the Code of Civil Procedure. The provision reads: “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 by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) 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 thinks fit.” The section is divided into two parts. The first part sets the condition for the High Court’s jurisdiction, namely that a subordinate court must have rendered a decision in a case where no appeal lies to the High Court. The second part describes the circumstances—sub‑clauses (a), (b) and (c)—under which the High Court may intervene.

Section 115 further provides that the High Court’s power is exercisable “in respect of any case which has been decided.” The term “case” is not defined within the Code itself nor in the General Clauses Act. It is therefore not limited solely to a full trial suit in a civil court. The decision in Balakrishna Udayar v. Vasudeva Aiyar clarified that the term also embraces a civil proceeding in which the court’s jurisdiction is invoked to determine a claim or a legally enforceable right.

A serious conflict of opinion has arisen among the High Courts regarding whether an interlocutory order—an order that does not finally dispose of the suit or proceeding—constitutes “a case which has been decided.” The Supreme Court has not directly ruled on this precise question. However, a majority view among the High Courts holds that the expression “case” includes interlocutory proceedings that affect the rights and obligations of the parties, and that the “record of any case” comprises the material relating to the order disposing of such interlocutory proceeding. Under this view, the High Court possesses the authority to correct an interlocutory order issued by a subordinate court.

The Court held that a High Court may exercise its revisional jurisdiction at any point in a suit or proceeding, even when the aggrieved party still possesses another remedy, such as the right to appeal the final decision. The party may preserve the right to appeal and may also rely on the illegality of the order as a ground for that appeal.

A contrary view was also considered. That view contended that the term “case” does not encompass an isolated issue or a portion of a suit or proceeding. Accordingly, an order dealing with a single issue or a part of a suit, as illustrated in the decision reported at L.R. 44 I.A. 261, is not a “case which has been decided.” Under that interpretation, the High Court would lack authority, within its revisional powers, to correct an error contained in an interlocutory order.

The Court observed that the multitude of decisions rendered by the various High Courts on this question is enormous and that attempting a comprehensive analysis would be of no practical value. Moreover, the opinion of the High Courts on this point has historically fluctuated. The appropriate meaning of “case” must therefore be derived from the nature of the jurisdiction granted by section 115 and the purpose for which the High Courts were endowed with that jurisdiction.

By their very constitution, the High Courts of Calcutta, Madras and Bombay were created within the Presidency towns as successors to the respective Supreme Courts, which possessed the authority to issue writs of certiorari, mandamus and prohibition. This succession arose because the jurisdiction of the English Courts of King’s Bench and Chancery to issue those writs had been transferred to the three Supreme Courts. However, the exercise of that jurisdiction, conferred by the British Crown’s Charters, was limited, except in matters concerning British subjects and servants of the East India Company, and it did not ordinarily extend beyond the Presidency towns, as noted in Ryots of Garabandho v. Zamindar of Parlakimedi (L.R. 70 I.A. 129).

The appellate bodies known as the Sudder Adalats, which handled appeals from the East India Company’s Courts in the provinces of the three Presidencies, were not English courts but were created by regulations and did not apply English law. These Sudder Courts lacked the power to issue the prerogative writs, apart from possibly the writ of habeas corpus. Nonetheless, they required the authority to supervise the jurisdiction of the provincial courts for proper functioning. Consequently, legislative enactments expressly authorized the Sudder Courts to rectify orders issued by their subordinate courts. Bombay Regulation 11 of 1827, Chapter 1, section 5(2), empowered the Sudder Court at Bombay to call for the proceedings of any subordinate civil court and to issue such orders as the “case” demanded. No similar regulation was enacted elsewhere to confer revisional jurisdiction on the Supreme Court or the Sudder Court concerning decisions of subordinate courts. The Code of 1859 contained no provision for such revisional powers, but section 35 of Act XXIII of 1861 vested the Sudder Courts with the authority to call for the record of proceedings.

The Court explained that the power of review extended to any matter that had been decided on appeal by a subordinate court and for which no further appeal was available, whenever it was shown that the subordinate court had acted beyond the jurisdiction granted to it by law. The establishment of the High Courts in the Presidency towns of Calcutta, Madras and Bombay introduced a supervisory authority conferred by section fifteen of the Charter Act of 1853 (24 & 25 Vict. Ch. 104). This provision gave the High Courts the right to oversee subordinate courts. Later, section six hundred twenty‑two of the Code of 1877 defined the revisional jurisdiction of the High Court and linked it to the conditions enumerated in clauses (a) and (b) of the present section one‑one‑five. Clause (c) was subsequently inserted by the Amending Act XII of 1879. The Court noted that the High Court could exercise this jurisdiction on its own initiative as well as on an application made to it, and that the grant was made in the broadest possible terms. The jurisdiction was described as both supervisory and visitorial, and it was intended to complement the powers created by clause fifteen of the Charter Act of 1861 and by the later Constitution Acts. The purpose of this expansive grant was to ensure effective control over courts that were subordinate to the High Courts. The Court observed that, historically, the High Courts had been unable to issue writs of certiorari and prohibition against the mofussil courts, and therefore it was necessary to endow the High Courts with the authority to correct errors committed by those subordinate courts in the exercise of their jurisdiction. This necessity, arising from the particular circumstances, demonstrated the breadth of the power that had been invested in the High Courts.

The Court further analysed the meaning of the word “case” used in the relevant provision. It held that “case” is a term of comprehensive import that embraces civil proceedings other than suits and is not limited to the whole of a proceeding in a civil court. To construe “case” as meaning only an entire proceeding and not a part of it would impose an unwarranted restriction on the exercise of supervisory powers, which are not bound by such a narrow interpretation. The Court warned that such a restriction could deny relief to an aggrieved litigant at a critical stage and could lead to gross injustice. The judgment also referred to the majority view expressed by the High Court of Allahabad in Buddhulal v. Mewa Ram, which was based on the assumption that, although “case” has a wide signification, the High Court’s jurisdiction could be invoked only when an order in a suit, and not a part of a suit, was decided. The Court clarified that while “case” does include a suit, equating it solely with a suit when determining the limits of the High Court’s jurisdiction would be inappropriate. The Court emphasized that the High Court is not obliged to exercise its jurisdiction merely because the statutory conditions are satisfied; the exercise of that jurisdiction remains discretionary.

In this case the Court observed that the jurisdiction of the High Court could be invoked only when an order in a suit is finally decided, not merely when a part of the suit is decided, and that this view rested on the mistaken premise that because the word “case” includes a suit, the term “suit” should replace “case” in the provision whenever the order sought to be revised originates from a suit. The Court clarified that although the expression “case” embraces a suit, it is not proper to limit the High Court’s jurisdiction solely to suits when defining the scope of its authority. This does not mean that the High Court must exercise its jurisdiction whenever a subordinate court decides a case and the conditions in clauses (a), (b) or (c) are fulfilled. The exercise of jurisdiction remains discretionary, and the High Court is under no obligation to interfere merely because the statutory conditions are satisfied. The Court further noted that the interlocutory nature of the order, the existence of an alternative remedy for the aggrieved party by way of an appeal from the ultimate decree or by a separate suit, and the overall equities of the case all must be taken into account when deciding whether the High Court should intervene, even where the statutory conditions appear to grant jurisdiction. In the present matter the Subordinate Judge, by an interlocutory order, held that the suit filed by Dillon to recover the amounts he alleged Khanna had advanced was not maintainable. This order directly affected Dillon’s right to obtain a decree for recovery of the loan that he claimed Khanna had promised to repay. If the term “case” is understood to include a part of a proceeding, then the Subordinate Judge’s interlocutory order must be regarded as a “case which has been decided.”

The next issue for determination was whether the High Court possessed the power to set aside an order that did not finally dispose of the suit, and at what point an appeal from the decree or the final order became competent. Relying on the expression “in which no appeal lies thereto” found in section 115 of the Code of Civil Procedure, it was contended that the High Court could entertain a revision petition only when no appeal existed against the final order passed in the proceeding. However, once the Court accepted that the word “case” includes a part of a case, it concluded that the revisional jurisdiction of the High Court could be exercised regardless of whether an appeal lay from the ultimate decree or order. To adopt any other interpretation would attribute to the Legislature an intention to restrict this beneficial jurisdiction to comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts is excluded for public policy reasons. The Court also rejected the view that the phrase “in which no appeal lies thereto” meant that the revisional jurisdiction is excluded when an appeal may be available from the final order. The use of the word “in” was not intended to draw a distinction between orders passed in proceedings that are not subject to appeal and those from which no appeal lies. Consequently, if an appeal lies directly to the High Court, or to another Court whose decision is appealable to the High Court, the High Court lacks power to exercise its revisional jurisdiction; but where the decision itself is not appealable to the High Court, either directly or indirectly, the exercise of revisional jurisdiction would not be deemed excluded.

The Court explained that the provision does not refer only to trivial suits and proceedings in which the High Court’s appellate jurisdiction is deliberately excluded for public‑policy reasons. It further held that the phrase “in which no appeal lies thereto” cannot be read to bar the High Court’s revisional jurisdiction simply because an appeal might be available from the final order. The word “in” was not intended to draw a distinction between orders that arise in proceedings that are not subject to appeal and those from which no appeal is permissible. Accordingly, where an appeal lies directly to the High Court against the adjudication, or where an appeal lies to another court whose decision can subsequently be appealed to the High Court, the High Court cannot exercise revisional power. However, if the decision itself is not appealable to the High Court either directly or indirectly, the High Court’s revisional jurisdiction is not excluded. The Court then turned to the judgment of the Rajasthan High Court in Purohit Swarupnain v. Gopinath and another (I.L.R. [1953] Raj. 483) which the appellant relied upon, and found that judgment to be an incorrect interpretation of section 115 of the Code. That earlier decision, relying on the Division Bench ruling in Pyarchand and others v. Dungar Singh (I.L.R. [1953] Raj. 608), had held that whenever a party could invoke an appeal under section 105 of the Code from a final decree or order, an appeal to the High Court was deemed to lie “in which no appeal lies thereto” within section 115, thereby excluding the High Court’s revisional jurisdiction. The Rajasthan High Court had observed that the use of “in” instead of “from” indicated a legislative intention to deny revisional authority when the order could reach the High Court by any form of appeal in the same suit or proceeding. The present Court, however, found that argument unsustainable even if one assumes that the word “case” includes a part of a case. Moreover, the Court noted that the distinction between “in” and “from” does not necessarily reflect a clear legislative purpose, because “in” functions as both a preposition and an adverb with multiple meanings. Substituting “from” – which normally denotes a source or point of commencement – would not clarify the relationship in the clause, since the link would then be between “case” and “appeal” rather than between “decided” and “appeal”. Consequently, the Court concluded that using the expression “in” to suggest that orders not appealable to the High Court are nevertheless subject to its revisional jurisdiction is not appropriate.

The Court observed that replacing the word “in” with “from” did not make the provision any clearer, and that the High Court’s revisional jurisdiction was not intended to be limited only to decisions that finally disposed of a suit or proceeding. The Court held that the possibility of delay in disposing of cases because the High Court might commence an investigation could not be taken as a basis for assuming that the jurisdiction was confined to final orders. It reasoned that revisional jurisdiction was granted to the High Court in order to enable it to exercise its supervisory and visitorial powers effectively, and that imposing a restriction that would limit this power only to cases where no appeal could reach the High Court from a final order would be unwarranted. Consequently, the Court rejected the view expressed by the Rajasthan High Court that such a restriction existed, and it affirmed that the revisional jurisdiction was not confined to matters where the final order was unappealable. Turning to the third issue, the Court noted that the order of the Court of First Instance on the third point had held that the suit filed by the respondent was not maintainable. The Court found that this decision directly affected the parties’ rights and obligations because it addressed the jurisdiction of the Court to entertain the suit. Accordingly, the decision attracted clause (c) of section 115 of the Code of Civil Procedure, since the Court, by declaring the suit non‑maintainable on the basis of paragraphs 15, 16, 17 and 18 of the written statement, had effectively decided a factual issue without a trial on evidence. The plaintiff had alleged that, at the request of the defendant, he had advanced several loans from funds deposited in a joint account and that the defendant had agreed to repay those loans. The cause of action therefore arose from the loan advanced in consideration of a promise to repay, and the alleged failure to repay. In the written statement, the defendant pleaded in paragraph 15 that the plaintiff had not advanced any money to him and had not claimed any amount for himself, and thus the plaintiff was not entitled to sue for recovery. In paragraph 16 the defendant contended that, because the plaintiff had admitted in the plaint that the amounts in dispute were to be repaid to the joint account, the plaintiff could not maintain the suit. In paragraph 17 the defendant asserted that a suit by one joint owner against the other for recovery of the joint fund or any portion thereof was not maintainable, and in paragraph 18 the defendant claimed that the plaintiff could not institute a suit because the amount was not repayable. The Court concluded that these pleadings raised substantial factual issues that required determination on evidence, and that the plaintiff could not be dismissed on the basis of untested allegations.

Khanna pleaded that a suit brought by one joint owner against the other joint owner for recovery of the joint fund or any part of it was not maintainable, and he further contended that Dillon could not institute a suit against him because the amount in dispute was not repayable. These contentions raised substantial issues of fact that required evidence for resolution, and it was not permissible to dismiss Dillon’s claim on the assumption that the pleadings were correct. At the commencement of the trial two principal questions had to be confronted. First, the court had to decide whether, in a suit to enforce an agreement to return an amount advanced on a promise to repay, the question of who owned the fund from which the amount was drawn was material. Second, if the first question was answered affirmatively, the court then needed to determine whether the fund in question truly belonged jointly to Dillon and Khanna. The trial judge, however, assumed without a trial that both questions were answered in the affirmative.

Order 14, Rule 2 of the Code of Civil Procedure provides that when a suit raises both issues of law and of fact, the court may first decide the legal questions if it thinks the case or any part of it can be disposed of on those grounds alone, and may postpone consideration of the factual issues until after the legal points are determined. The code authorises the court to try legal issues separately only when the whole suit can be decided on law alone; it does not empower the court to treat mixed questions of law and fact as preliminary matters. Consequently, a court should ordinarily try all the issues in a suit. Failing to do so, especially when the resolution of legal questions depends on factual findings, results in a one‑sided trial. The present judgment does not express any view on the truth of the allegations made by Dillon or Khanna; its purpose is to emphasize that the question of the suit’s maintainability, which was treated as a pure question of law, could be decided only after the disputed factual matters were settled. By deciding the third issue solely on the pleadings, assuming the defendant’s statements were true and the plaintiff’s false, and by treating the joint account as common ownership without proof, the trial judge acted beyond his jurisdiction and committed a material irregularity. Accordingly, the High Court was correct in setting aside the trial court’s order and in holding that the suit could not be dismissed without an investigation into the parties’ respective claims.

In this case, the Court observed that without investigating the respective claims asserted by the parties in their pleadings concerning the disputed matters, the suit could not be held to be non‑maintainable. Accordingly the appeal was dismissed with costs. The Court ordered that one hearing fee be payable for this appeal and also for C.A. 321 of 1963. Justice Hidayatullah, having had the advantage of considering the judgment of Justice Shah, agreed that the appeals should be dismissed with costs and indicated that he would give his reasons briefly in a separate judgment. The factual background had been set out in detail by Justice Shah, and it was unnecessary to repeat it in full. For the purpose of the present judgment, only the essential facts were restated. The appellant, Khanna, and the respondent, Dillon, had entered into a partnership for business purposes. In February 1956 the parties agreed to dissolve the partnership, executed a deed, and stipulated that Dillon would assume all assets and liabilities of the firm while Khanna would be indemnified against any liability. Subsequently a suit for dissolution of the partnership and rendering of accounts was filed, which ultimately resulted in a compromise that essentially reaffirmed the earlier deed. The compromise added a condition that any realizations of the former partnership would be converted into cash and deposited in a joint account in the names of both partners before being applied to the partnership’s liabilities. Two suits were later instituted by Dillon against Khanna seeking recovery of amounts totaling Rs. 46,000 and interest, alleging that Khanna had obtained sums as a loan from the joint account. Khanna defended the suits by contending that because the money remained in an account held jointly in the names of the partners, the actions between partners were not maintainable. This defence raised a preliminary issue in each suit, namely whether the suit was not maintainable and whether the plaintiff was entitled to proceed as alleged in paragraphs 15 to 18 of the written statement. The trial judge tried these preliminary issues and ruled in favour of Khanna in both suits, holding that the suits were not maintainable. Rather than dismissing the suits outright, the trial judge scheduled them for a later date. Dillon filed revision applications under section 115 of the Code of Civil Procedure in the High Court, and the High Court allowed those revisions. Khanna then obtained special leave to appeal the High Court orders. The short question presented was whether the High Court was correct in exercising its jurisdiction under section 115 of the Code of Civil Procedure. The parties relied heavily on two decisions of the Rajasthan High Court, namely Purohit Swarupnarain v. Gopinath and another, and Pyarchand and others v. Dungar Singh.

In this case the Court considered earlier rulings that the jurisdiction conferred by section 115 of the Code may be invoked only when no appeal, either direct or indirect, lies to the High Court after any other appeals. The parties argued that in the present matters an appeal would have been available directly from the decrees because both suits involved large sums and had been tried on the regular side, and therefore section 115 could not be invoked. This argument prompted an examination of the scope of the High Court’s jurisdiction under section 115. The trial judge had held that the suits were actions for contribution among partners of a dissolved firm that was in the process of winding up, and because they were not suits for general accounts, he held them to be not maintainable. By reaching that conclusion, and if the conclusion was erroneous, the trial judge had effectively denied himself the power to try the suits. Moreover, the trial judge had scheduled the suits for further proceedings on a later date, which meant that, in his view, the suits were already concluded despite the pending date.

The High Court, however, found that the suits were plainly intended to recover amounts that Khanna had borrowed from a joint account. The High Court was correct in that finding. Under the compromise agreement, Dillon was required to recover the proceeds, convert them into cash and place them in a joint account, both on his own behalf and under a power of attorney given by Khanna on Khanna’s behalf. The cash was to be at Dillon’s disposal only after he first applied it to liquidate the joint liability. Khanna’s interest was limited to ensuring that the liabilities were discharged first. Consequently, any withdrawal from the joint account must be treated as a loan advanced by Dillon to Khanna, and the suits therefore concerned recovery of loans rather than contribution. The High Court was also correct in holding that the trial judge had no authority to keep the suits pending for “further proceedings” after he had already held them not maintainable.

Since the trial judge’s decision was erroneous and the High Court’s decision was right, the remaining issue was whether the High Court properly exercised its power under section 115 to correct the error. Section 115 of the Code states that the High Court may call for the record of any case decided by a subordinate court in which no appeal lies, and if that subordinate court appears to have exercised jurisdiction not vested in it, failed to exercise jurisdiction vested in it, or acted illegally or with material irregularity, the High Court may make such order as it thinks fit. The power conferred by this provision is analogous to a proceeding on a writ of certiorari, although it differs in several respects.

Section 115 provides that if a subordinate court has acted illegally or with material irregularity in exercising its jurisdiction, the High Court may make any order it deems appropriate. The power conferred by this provision is essentially a proceeding on a writ of Certiorari, but it differs from the traditional Certiorari power in several respects. Certiorari itself can take many forms, which may be classified as follows: (1) Certiorari to remove a case for trial; (2) Certiorari for judgment or indictment; (3) Certiorari to quash; (4) Certiorari for purposes of execution or coercive process; (5) Certiorari to remove orders, etc., on case stated; (6) Certiorari to remove depositions for bail; and (7) Certiorari to remove a record for use as evidence. Under English common law, Certiorati to quash are employed in a completed case, and this principle is now embodied in Order 58 of the Rules of the Supreme Court. In the United States, Certiorati have been understood differently and function as a means of review. This understanding arises from the special appellate jurisdiction of the United States Supreme Court created by statute (see 28 U.S.C. § 1254) and from the necessity for the Supreme Court to exercise this power as part of its appellate jurisdiction. The supervisory power of the High Court under English law must not be confused with the visitorial power exercised by the writ of Mandamus. A writ of Mandamus is issued to courts only when justice is delayed and commands the court to hear and dispose of the case. There is also a writ of Prohibition, which is issued to a court to stop it from assuming jurisdiction and deciding a cause without legal authority. The writ of Mandamus developed later than the writ of Certiorati, and by Mandamus the courts are not directed to give any particular judgment but merely to render a judgment. An erroneous judgment may be set aside on appeal or quashed by Certiorati. Prohibition is intended to prevent a court from assuming jurisdiction before an order is made. Certiorati to quash apply in a completed case where the issue is jurisdiction or an error of law apparent on the face of the record. As Lord Sumner observed in Rex v. Nat Bell Liquors Ltd., “Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound 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 concerns two points: first, the area of the inferior court’s jurisdiction and the qualifications and conditions of its exercise; second, the observance of law in the course of that exercise. From the foregoing discussion it is apparent that interference with a case before an inferior court by prerogative

The Court explained that, according to English law, writs could be employed in three separate ways. First, a writ of Prohibition could be issued to halt proceedings before a final decision was rendered. Second, a writ of Mandamus could be directed to order the trial of a case and to compel the delivery of a judgment. Third, a writ of Certiorari could be used to quash an order after the case was completed when the order was issued without jurisdiction or contained an error of law evident on the face of the record.

The Court then noted that the authority conferred by section 115 of the Code of Civil Procedure was expressly confined to ensuring that subordinate courts remained within the limits of their own jurisdiction. That provision did not encompass the powers available under the writs of Prohibition or Mandamus, and it did not amount to the full power of Certiorari because it operated only in situations involving jurisdictional defects, not in cases of pure error of law.

The Court observed that both the Judicial Committee and this Court had ruled that section 115 dealt solely with jurisdiction. It concerned a refusal to exercise jurisdiction where jurisdiction existed, an improper assumption of jurisdiction where none existed, and actions taken with illegality or material irregularity. When a matter did not raise a jurisdictional question, the decision could not be corrected under this section, as it had also been held that a court possessed the authority to decide both correctly and incorrectly.

Consequently, the Court held that once a jurisdictional flaw was identified, the High Court was not required to follow the English practice of quashing and remitting the case under Certiorari. Instead, the High Court could issue any order it deemed appropriate to remedy the defect.

Applying this principle, the Court found that the trial judge’s decision was erroneous for the reasons articulated by the learned judge Shah. By holding that the suits were not maintainable, the trial judge was effectively denying jurisdiction. The Court then examined whether those suits could be described as “cases” “decided” by the subordinate judge and whether they fell within the description “in which no appeal lies.” It observed that the phrase did not refer specifically to an appeal under the Code; rather, it was a general description applicable to every decision of a court subordinate to the High Court where no appeal exists, whether the appeal provision arises under the Code or any other law.

Accordingly, the Court stated that a decision of a subordinate court is subject to the revisional jurisdiction of the High Court unless that jurisdiction is expressly excluded by a special statute or an appeal is permissible from that decision. In the present matter, the decision of the subordinate judge clearly terminated the suits. The fact that the judge continued to keep the suits pending for further proceedings, for reasons that were not clearly explained, did not change the character of the decision. Moreover, as the High Court had pointed out, the judge’s failure to dismiss the suits and to draw up decrees amounted to an exercise of jurisdiction that was materially irregular, if not outright illegal.

Therefore, as far as the parties were concerned, the suits were no longer live suits since

In this case the Court observed that, although the decision was limited, it nevertheless brought the suits to an end. The parties relied on two decisions of the Rajasthan High Court, contending that the expression “in which no appeal lies” should be understood to mean a situation where no appeal exists to the High Court from the final determination, whether directly or ultimately. They further argued that, in the suits under consideration, a decree of dismissal would eventually have been pronounced and such a decree would have been appealable, and therefore the power conferred by section 115 of the Code of Civil Procedure could not be properly invoked. The Court noted that the view expressed by the Rajasthan High Court has not been adopted by other High Courts. A large body of case law holds that the terms “case decided” and the phrase “in which no appeal lies” are not confined to the final judgment alone; rather, they are sufficiently wide to encompass certain interlocutory orders that involve jurisdiction and from which no appeal lies under the Code or otherwise. In this context, the expression “record of any case… decided” refers to the record of the proceedings leading up to a decision in which there is an assumption of unwarranted jurisdiction, a denial of an existing jurisdiction, or a material irregularity or illegality in the exercise of jurisdiction. The Court further explained that where an appeal is available from the final determination, either to the same court or to another, the High Court, exercising its discretion, may decline to intervene at the interlocutory stage unless early interference is necessary to prevent a reparable injury and is manifestly just and expedient. Since most decisions of Subordinate Courts are subject to one or more appeals, and one of those appeals is normally to the High Court, the statute provides special provisions that grant the High Court even broader powers of revision where no appeal exists, beyond those under section 115. Consequently, the interpretation advanced by the Rajasthan High Court would restrict the statutory power to a very small number of cases, contrary to the intended general scope of the power. The Court emphasized that the word “case” does not denote a concluded suit or proceeding but each decision that terminates a portion of the controversy involving a jurisdictional question. Where no jurisdictional issue is present, a Court’s decision cannot be challenged under section 115, as it has been repeatedly stated that a Court may decide a matter wrongly as well as rightly. In the Court’s opinion, the construction that is widely accepted by the High Courts aligns more closely with the letter and spirit of the section as a whole than the view expressed in the two cited Rajasthan decisions. As previously indicated, the provision confers a power analogous to the power to issue a writ of certiorari, but solely for the purpose of keeping Subordinate Courts within the limits of their jurisdiction. This power is exercisable with respect to all orders that involve jurisdiction and from which no appeal lies.

The Court observed that the orders issued by the Subordinate Judge fell within the category of matters that could be brought before the High Court for review. In the present circumstances, those orders were found to be erroneous because the Subordinate Judge denied the jurisdiction that he possessed, and there was no appeal pending before the High Court against those orders. Moreover, the trial judge was also in error by refusing to dismiss the suits at the earliest stage. His declaration that the suits were not maintainable, coupled with his decision to keep them pending, constituted an exercise of jurisdiction that was tainted by a material irregularity. The Court explained that, had the trial judge dismissed the suits and entered decrees, the parties would inevitably have filed appeals and consequently no revision would have been necessary. However, the order that the trial judge actually passed was neither a decree nor an order that could be appealed under section 104 of the Code. Because the order involved a clear question of jurisdiction, it was subject to revision, and the High Court was therefore within its authority to correct the error by exercising the power conferred on it by section 115 of the Code. On this basis, the Court held that the appeals filed against the High Court’s decision must fail. Accordingly, the Court concurred with the order proposed by the learned brother Shah, J., and ordered that the appeals be dismissed.