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Cite as : (1900) * SCC (Jour) 1

Revisional Powers Of The High Courts



Section 115 of the CPC, contemplates, three cases in which the High Courts can interfere within their revisional powers, viz. : (a) where the lower Court has exercised jurisdiction not vested in it by law, or (b) when the lower Court has failed to exercise jurisdiction so vested, or (c) where the lower Court has acted in exercise of its jurisdiction illegally or with material irregularity.

The word "Jurisdiction" has been understood in legal terminology as relating to subject-matter jurisdiction, territorial jurisdiction and pecuniary jurisdiction, and there has been no conflict about this meaning. The constant trouble has been about the words "illegally" and "material irregularity" as used in Section 115 of the CPC.

Dictionary defines the word "illegally" as being contrary to law and the word "irregularity" as being contrary to anything regular. In fact, we have forever adhered to these meanings in our own common usage. These words "illegally" and "irregularity" are adverbs qualifying the word "acted as found in clause (c) of Section 115 of the CPC No doubt, the verb 'acted' has been qualified with the adverb phrase—"in the exercise of its jurisdiction"—which obviously means that the illegality and/or irregularity must be that while lower Court is acting within its jurisdiction (because if the lower Court acted without jurisdiction its decision would have no force as it would have been void) irrespective as to whether it had conducted the proceedings with legality and/or regularity. The adverbs 'illegality' and 'irregularity' therefore stand to qualify the verb "acted" and not the adverb phrase "in the exercise of its jurisdiction".

It is true that an adverb must find its place as near as possible to the word it modifies. But it does not follow from it that in clause (c) of Section 115, the adverbs "illegally" and "irregularity" go to qualify the adverb-phrase "in the exercise of its jurisdiction". In fact, these adverbs go to qualify the verb "acted" as can be seen from the effect of a mere transposition which would not change the sense in case clause (c) of Section 115 is read as follows:

"to have acted illegally or with material irregularity in the exercise of its jurisdiction."

The Myth

Notwithstanding the effect of the words "illegally" and "irregularity" as seen above, strangely enough decisions have been conflicting on the meaning of illegality and material irregularity, as used in Section 115(c) of the CPC The learned Editor of Mulla's Commentaries on the CPC (13th Edition—Vol. I at pp. 505 to 513) under the heading 'What is not illegality or material irregularity', writes at p. 506:

"It is settled that where a Court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law".

Strange as it may sound, this view has been recently reiterated by their Lordships of the Supreme Court in their decision in M/s. DLF Housing and Construction Co. (P) Ltd. v. Sarup Singh reported in (1969) 3 SCC 807: (1971) 1 SCJ 138: AIR 1971 SC 2324 and again in Civil Appeals Nos. 840 and 841 of 1971, decided on November 5, 1971. The Managing Director (MIG) Hindustan Aeronautics Ltd., Balangar v. Ajit Prasad Tarway, reported among the advance notes on recent cases in 1972—Supreme Court Cases—Vol. I, Part II, dated January 15, 1972 at page VIII.

In the former decision cited above, their Lordship of the Supreme Court held that it is not competent for the High Court to correct errors of fact or law, however gross they be, unless these errors relate to jurisdiction of the Court to try the dispute itself. And in the latter decision reported in SCC, referred above, their Lordships have been even more categorical in their view by holding that the impugned Order may be right or wrong; may be in accordance with the law or not; but that it is perfectly valid, as long as the Court passing it had jurisdiction to do so.

Probably in light of these decisions of the Supreme Court, our High Courts will shut the doors to all the revisional petitioners on the plain under-standing that it is perfectly legitimate for the lower Court to pass any order, however erroneous/perverse, so long as it is within their territorial, pecuniary or subject-matter jurisdiction.

An Appraisal

There is no escape from the inevitable conclusion from the decisions of the Supreme Court that the lower Court has full powers to pass any illegal and/or irregular orders, and that the same cannot be impugned in the revisional forum of the High Courts. What then is the benefit of clause (c) in Section 115 of the CPC Surely none:

The decisions of the Supreme Court in question, seem to let the adverbs "illegally" and "irregularity" be qualified by the adverb phrase ("in exercise of its jurisdiction") without allowing the said adverb phrase and the adverbs ("illegally" and "irregularity") qualify the verb "acted", which would be in consonance with the rules of grammar and a common understanding of Section 115. According to the above cited rulings of the Supreme Court therefore, clause (c) of Section 115 is a mere surplusage.

And that being the reasoning, how can a revisional petitioner impugn an erroneous Order in respect of jurisdictional question itself? If the Trial Court can decide a question against facts and/or law, it surely can decide so in respect of a question touching jurisdiction also, whether rightly or wrongly and the High Court should have no powers to interfere. The lower Court would be deciding on jurisdiction while acting within its jurisdiction.

In the decision in State of MP v. Azad Bharat Finance Co. (reported in AIR 1967 SC 276) the Supreme Court held that when the lower Court erroneously interpreted the provision in question as obligatory instead of discretionary, the High Court has powers to interfere. So also in the decision in Pandurang Dhonde Chougule v. Maruti Hari Jadav reported in AIR 1966 SC 153: AIR 1966 SC 153: (1966) 1 SCJ 1 and also he decision in Mahindra Land and Building Corporation v. Bhutnath Banerjee reported in AIR 1964 SC 1336: (1965) 1 SCJ 109, the Supreme Court held that erroneous decisions on questions of limitation and/or res judiciata, were revisable.

Why is this difference in approach? The decision was passed though erroneously, by a Court within its pecuniary, territorial and subject-matter jurisdiction. According to the reasoning in the recent decision of the Supreme Court, the Trial Court could pass such Order, because it was within its territorial, subject-matter and pecuniary jurisdiction. How could then the High Court interfere? After all, the trial Court only violated some provisions of the Law of Limitations in one case and of the CPC, in the other. It was a violation of law to which it had the jurisdiction/competence to do so, and consequently the High Court could not interfere. Yet, the Supreme Court holds that these matters are revisable.

In a catena of decisions, the Supreme Court has made its pronouncement in connection with Order VI, Rule 17 of the CPC, regarding amendment of pleadings. In its recent decision in Jai Jai Ram Monoharlal v. National Building Material Supply Company reported in (1969) 1 SCC 869: AIR 1969 SC 1267: (1970) 1 SCJ 129 the Supreme Court has made clear, when leave to amend the plaint can be given. Whey did not the Supreme Court hold that the Trial Court was in its absolute privilege to allow or reject an application under Order VI, Rule 17, CPC and by its own reasoning, that Trial Court is entitled to commit errors of fact and/or law within its jurisdiction and that such orders are not revisable?

Such instances can be cited in enormous numbers and any digest of the Supreme Court rulings indicates where the Supreme Court has given a pronouncement on a point of law on the various provisions of the CPC, which were entertained by the various High Courts in their revisional jurisdiction. But, if one were to follow strictly the recent rulings of the Supreme Court regarding the jurisdictional powers of the High Court, surely none of these questions could have been entertained by the High Courts.


From the above, it appears that the engima of the revisional powers of the High Courts has till not been solved notwithstanding the recent rulings of the Supreme Court in this connection. In fact, it has only opened a fresh problem as to what is jurisdiction, and it is probably due to this that law reports are reporting several decisions of various High Courts passed in their revisional capacity.

Professor G.W. Paton, in his Text-book of Jurisprudence (3rd Edition ELBS Edition at page 177) while trying to establish the difference between a question of fact and a question of law, writes:

"It has been wittily said that an appellate Court is guided by its wish to uphold or reverse the particular decision: if it is desired to reverse the decision the Court assumes jurisdiction because a point of law is involved; if it wished to uphold the verdict it is treated as a particular finding of fact."

And this type of reasoning can well be applied by our High Courts; if they wish to reverse a particular finding of the Trial Court, the High Court may declare that it was a question touching jurisdiction, whereas in other cases it could hold that the question coming up for revision did not involve an error of jurisdiction and thus dismiss the revision petition at the admission stage.

It need hardly be said that there are various orders passed by the Trial Court in the course of trial, in which no appeal lies, and consequently the only remedy is by way of a revision petition under Section 115, CPC Thus a question about misjoinder of parties or causes of action, are of such nature which could be disposed off to finality at the very outset of the proceedings. If the High Courts were to reject the revision Petition on grounds that the matter is not revisable, because the trial Court is empowered to pass orders in contravention of law and fact, what is the fate of the litigant? In fact, Section 99 of the CPC, categorically states that "no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal, on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case, or the jurisdiction of the Court."

There is every likelihood that due to misjoinder of parties the best evidence will be missing, or practically there will even be no evidence on some of the vital points, considering that these were not in issue and obviously neither of the litigants were allowed to let in evidence by the trial Court as being irrelevant. What type of justice will then follow from this trial? After all, the Trial Court had the privilege of rejecting the initial objection about the misjoinder and so also of refusing to allow certain type of evidence which was not at issue. But will that bring out the clear picture of the case? No. Justice in that case will have to depend not on law nor on equity, but on some partial evidence available from the suit-records.

So also Section 99 clearly states that defect or irregularity in any proceedings in a suit will not be grounds for any appellate Court to reverse or vary or remand the case. What then is the worth of the appellant mentioning these grounds that the lower Court has committed irregularities? It serves no purpose before the appellate Court nor before the Revisional Court. Will the party then get justice according to law or equity?

Take another example. An application for amendment of issues has been contemplated under Order XIV, Rule 5, CPC Let us assume that the Trial Court rejects the application and does not allow a party to lead evidence on that particular issue on grounds that there is no issue formulated in that respect. This party shall not be allowed to go in revision because the Trial Court would be entitled to commit errors of law and/or fact. In case he raises the point in appeal that a particular issue has not been formulated, the appellate Court has always the power under Order XLI, Rule 24, to re-settle the issues and determine the case without sending the case back to the Trial Court as provided under Rule 25 of Order XLI, CPC, as a result of which the judgment will be passed on incomplete evidence. Neither will the appellant be able to capitalise on this point that evidence was improperly rejected because Section 167 of the Evidence Act states that improper admission or rejection of evidence shall not be ground for a new trial.

Instances, as in the above are innumerable and can be applied to the various Orders and Rules in the CPC In case the High Courts do not interfere in their revisional powers, justice will invariably suffer to a very great extent. Justice will neither be done according to law nor equity but on some disconnected pieces of evidence available from the suit records.

With due respect to the pronouncement of the Supreme Court, it is submitted that if the rights available to the litigants by the procedural laws, are left to the whims or caprices of the Trial Courts alone, the litigants may soon feel that they would get better justice in the office of a conscientious advocate, where they will neither incur the expenditure, nor waste time, nor be bound down by some strict rules of procedural laws to which they are not familiar, as it happens in the law Courts.

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