# M. L. SETID v. R.P.KAPUR

- **Citation:** [1973] 1 S.C.R. 697
- **Court:** Supreme Court of India
- **Decided:** 1972-07-19
- **Bench:** P. Jaganmohan Reddy, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-l-setid-v-r-p-kapur-5704
- **Pages:** 11

## Headnote

697
Code of Civil Procedure (Act 5 of 1908), s. 115 and 0.33, rr. 6 and
1-Jurisaictional error, lvhat is-Por11er of Cour. to order discovery
of
docu111ents relating to pauperis1n.
The respondent filed an application for permission to sue in forma
pauperis against the appellant, and notice of the petition was given to the
State Government and the appellant under 0.33, r. 6, CPC. The Government and the appellant filed objections, that the respondent was not
a pauper. The appellant also filed an application for discovery of documents from the respondent for proving that the respondent. was not a
pauper. The Court passed an order directiag the respondent to discover
on affidavit the documents relating to bank accounts of the respondent
for a specified period.
The respondent did nor file the affidavit on the
prescribed date but filed applications fm· time which were dismissed by
the Court and the Court thereafter dismissed the application for permission to sue in forma pauperis as there was no evidence to show that
the respondent was a pauper and directed the respondent tO
pay
the
court-fees.
The respondent challenged the orders directing discovery of
documents and dismissin2 the application for permission to sue in forma
paupcris in revision before the High Court..
The High Court set a.side
the two orders holding that; (l) Since the proceedings under 0.33, rr. 6
and 7 are summary, discovery should not have been ordered : (2) the documents of which discovery was sought were not specified in the application
of the aopellant, (3) the inquiry under 0.33, rr. 6 and 7 was a matter
between -the respondent and the State Government and discovery
and
inspection at the instance of a private party like the appellant should not
have been ordered;(4) the trial court acted with material irregularity as
it did not consider the question of the necessity for discovery of the documents or the relevance of the documents of which discovery was sought;
(5) the trial court ovorlooked the right of the respondents to claim privilege; and (6) the trial court, rejected the application to sue in forma
pauperis for statistical purposes.
Allowing the appeal to this Court,
HELD : (!) The suit commences from the moment an application for
permission to .. s_ue in forma paupers as required by 0.33 C.P.C.·is presented
and the prov!s1.ops of Order 1, r. 10, of 0.9 and 0.39 would apply to i~
If th.at be so, there is no reason why the provisions of 0.11 r. 12 relating
to discovery should not also apply to proceedings under 0.33. [701B-Cl
Vijay Pratap Singh v, Dukh Haran Nath Singh and Anr., [1962] S.C.R.
Supp. 2, 675, followed.
.
(2) When the Court m~kes order for discovery the opposite party
is. bound to ma]\e an aflidaVIt of documents and if he fails to do so he
will be subi.ect to the penalties specified in 0.11, r. 21. An affidavit of
ff
docum~nts shall set forth. all the documents which are or have been in his
possession or power ~elating. to the matter in question in the proceedings.
As to documents which are not but have been in his possession or power
he must state what has become of them in order that the other party may
10-Ll52SupCl/73
698
SUPREME COURT REPORTS
[1973] 1 ~('.kt.
be able to get their production.
Therefore, unless the party
seeking
discovery know• what are the documents in th~ possession of c\istody of
the other ·party which would throw light upon the matter in controversy
it is not possi_ble for him to ask for discovery and inspection of specific
documents., In the circumstances therefore the order was as specific as it
cou1d be.. [702C-F]
( 3) Order 3 3, r. 6 provides that if the Court does not reject the
application under r. 5 notice shall be given to the opposite party and the
Government pJeader for receh.ing such evidence as the .. applicant may
adduce in proof of pauperism ·and for hearing any evidence in disproof
thereof. Also under 0.33, r. 9 it is open to the Court on the application
of the defendant to disappear the plaintiff on the

## Text

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M. L. SETID
v.
R.P.KAPUR
July 19, 1972
[P. JAGANMOHAN REDDY AND K. K. MATHEW, JJ.J
697
Code of Civil Procedure (Act 5 of 1908), s. 115 and 0.33, rr. 6 and
1-Jurisaictional error, lvhat is-Por11er of Cour. to order discovery
of
docu111ents relating to pauperis1n.
The respondent filed an application for permission to sue in forma
pauperis against the appellant, and notice of the petition was given to the
State Government and the appellant under 0.33, r. 6, CPC. The Government and the appellant filed objections, that the respondent was not
a pauper. The appellant also filed an application for discovery of documents from the respondent for proving that the respondent. was not a
pauper. The Court passed an order directiag the respondent to discover
on affidavit the documents relating to bank accounts of the respondent
for a specified period.
The respondent did nor file the affidavit on the
prescribed date but filed applications fm· time which were dismissed by
the Court and the Court thereafter dismissed the application for permission to sue in forma pauperis as there was no evidence to show that
the respondent was a pauper and directed the respondent tO
pay
the
court-fees.
The respondent challenged the orders directing discovery of
documents and dismissin2 the application for permission to sue in forma
paupcris in revision before the High Court..
The High Court set a.side
the two orders holding that; (l) Since the proceedings under 0.33, rr. 6
and 7 are summary, discovery should not have been ordered : (2) the documents of which discovery was sought were not specified in the application
of the aopellant, (3) the inquiry under 0.33, rr. 6 and 7 was a matter
between -the respondent and the State Government and discovery
and
inspection at the instance of a private party like the appellant should not
have been ordered;(4) the trial court acted with material irregularity as
it did not consider the question of the necessity for discovery of the documents or the relevance of the documents of which discovery was sought;
(5) the trial court ovorlooked the right of the respondents to claim privilege; and (6) the trial court, rejected the application to sue in forma
pauperis for statistical purposes.
Allowing the appeal to this Court,
HELD : (!) The suit commences from the moment an application for
permission to .. s_ue in forma paupers as required by 0.33 C.P.C.·is presented
and the prov!s1.ops of Order 1, r. 10, of 0.9 and 0.39 would apply to i~
If th.at be so, there is no reason why the provisions of 0.11 r. 12 relating
to discovery should not also apply to proceedings under 0.33. [701B-Cl
Vijay Pratap Singh v, Dukh Haran Nath Singh and Anr., [1962] S.C.R.
Supp. 2, 675, followed.
.
(2) When the Court m~kes order for discovery the opposite party
is. bound to ma]\e an aflidaVIt of documents and if he fails to do so he
will be subi.ect to the penalties specified in 0.11, r. 21. An affidavit of
ff
docum~nts shall set forth. all the documents which are or have been in his
possession or power ~elating. to the matter in question in the proceedings.
As to documents which are not but have been in his possession or power
he must state what has become of them in order that the other party may
10-Ll52SupCl/73
698
SUPREME COURT REPORTS
[1973] 1 ~('.kt.
be able to get their production.
Therefore, unless the party
seeking
discovery know• what are the documents in th~ possession of c\istody of
the other ·party which would throw light upon the matter in controversy
it is not possi_ble for him to ask for discovery and inspection of specific
documents., In the circumstances therefore the order was as specific as it
cou1d be.. [702C-F]
( 3) Order 3 3, r. 6 provides that if the Court does not reject the
application under r. 5 notice shall be given to the opposite party and the
Government pJeader for receh.ing such evidence as the .. applicant may
adduce in proof of pauperism ·and for hearing any evidence in disproof
thereof. Also under 0.33, r. 9 it is open to the Court on the application
of the defendant to disappear the plaintiff on the grounds specified therein., one of which is, that his means are such that he should Tiot fie allowed
to continue to sue as a pauper. Since an immunity from litigation unless
the requisite court fee is paid by the plaintijJ is a valuable right for the
defendant, the inquiry into pauperism is not a matter exclusively between
the Government and the plaintiff.
[703C-GJ
• ( 4) The High Court was n"t right in holding that the documents were
not relevant for the inquiry.
The documents sought to be discovered
need not be admissible in evidence in the inquiry or proceedings. It is
sufficient if they would be relevant for the purpose of throwing light on
tl)e matter in controversy. A document might be inadmissible in e'~dence.
and vet mav contain information which may either directly or indirectly
enable the party seeking discovery either to advance his case or damage
the adversary's case or which may lead to a trail of inquiry which may
have either ·of these two consequences.
Since documents of which discovery was sought would throw light on the means of the respondent to
pay the court fee they are relevant.
[702H; 703A-C]
(5) The High Court was wrong in holding that the plaintifh right
to claim privilege was affected by the order, because, the stage for claiming privilege had not yet been roached.
That would be reached only
when the affidavit of discovery is made, and the plaintiff objects uncler
0.11, r. 13, to produce for inspection by the opposite
party specific
documents. T702E-GJ
(6) (a) A distinction must be drawn between errors committed ·by
suOordinate courts in deciding questions of law which have relation to,
or are concerned with, questions of jurisdiction of the Court and errors
· of Jaw which have no such relation or connection, for the purposes of s.
115, C.P.C. If there was an entitlement to enter upon an inquiry 'into a
question then any subsequent error committed by the Court could not be
regarded as an error of jurisdiction, because the question of jurisdiction
is determinable at the commencement and not at the conclusion of the
inquiry. [705A-B, G-H; 706AJ
Manldm Land and Building Corporation Ltd. v. Bhutllllth Banerjee &
Ors, A.I.R. 1964 S.C. 1336 Vora Abbashhai Alimahommed v. Haji Gulamnabi Hajj Sa(ibhai, /..LR. 1964, ~C. 1341 and Pandurangh Dhoni Chougule
v. Maruti Hari Jadhav, [1966] 1 S.CR 102, followed.
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Rajah Amir Hassan Khan v. Sheo Baksh Singh, [1~841 L.R. 11 I.A. 237,
Balakrishar.a Udayar v. Vasudeva Aiyar, [19171 L.R .. 44 I.R. 261, VenkataH
giri Ayyangar v. Hindu Religious Endowments Board, Madras, (1948-49)
L.R. 7.6 I.A. 67, Ank-minic Ltd., v. Foriegn Composition. Commission
!1969] 2 A.C. 147 and R. v. Botton, fl84ll. 1 Q.B. 66 referred to.
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M. L. SETIU v. R. P. KA)"UR (Mathew, J.)
699
(b) But the effect of the oboervations in the Anisminic case is
to
reduce the difference between a jurisdictional error and an error of law
within jurisdiction, almost to a vanishing point.
The pra:ctk'.al effect of
the decision is that any error of law can be reckoned as 1unsd1ct1onal.
[706Hl
In the present case even if lack of jurisdiction is a~~ed to.
~esclt
from every material error« law-even an error of law wilhm the 1unsd1ction as generj!]ly understood-the order of. the tnal
court ( wa.s
not
vitiated by any such error of law and the High Co~rt. was .not Justified m
interfering with it in revisiotl. !he trial court had .1unsd1ct"?n to pass the
order for discovery. The reje~l!on of the ap~hcal!on for ~Ifie and
the
consequent di'i1nissal of the petition for perm1ss1on to sue in i prn1a pauperJs
cannot be said to sound in jurisdictional error even in its extended sense.
The cefusal to adjourn ·had not occasioned any failure of natural justice,
nor is. there any thing to show that in rejecting the application for time,
the trial court acted illegaliy or with material irrigularity in the exercise
of its jurisdiction. [707D-Gl
CIVIL APPELLATE JHR!SD!CTION : Civil Appeal No. 665 (N)
of 1972.
Appeal by special leave from the judgment and order dated
August 27, 1971 cf the High Court of Judicature at Allahabad
in Civil Revision No. 680 of 1970.
V. M. Tarkunde and Hardev Singh, for the appellant.
Respondent appeared in person.
The Judgment of the Court was delivered by
Mathew, J. This appeal, by special leave, is from the order
of the High Court of Allahabad allowing on application for .revision of orders passed by the Civil Judge, Saharanpur, directing
discovery of documents by the respondent and dismissing an
application by him for permission to sue forma pauperis.
The respondent filec\ a suit in forma pauperis on April 29;
1962, against the appellant and his wife for recovery of damages
to the tune of Rs. 7,48,000/- for· malicious prosecution. Notice
of the petition to sue in forma pauperis was given to the State
G?".emment and the .appellant under Order 33, Rule 6 of the
ClVll P~oce.dure Co.de.
Both the Government and the appellant
filed ob1ect10ns stating that the respondent is no.I a pauper. The
appellant thereafter filed an application for discovery '.lf documents from the respondent for proving that the respondent is not
a. panper.
The Court passed an order on February 23, 1970,
duec~mg the respondent to discover on affidavit the documents
relating to the bank accounts .of the respondent, namely, pass
books, chequ~ books, counterfoils, etc., from March 1, 1963, to
ithe date of fihng the afl)davit of discovery, as also the documents
n ~esP:-ct of the properties held by him and the personal accounl3
marntamed by hlill. The respondent was to file the affidavit of
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(1973] 1 S.C.R.
discovery on March 8, 1970. It was specifically stated that no
extension of time will be allowed for filing the affidavit and that
the discovery should be made within the time.
The respondent
did not file the affidavit in pursuance to the order.
On March
31, 1970, he moved an application stating that he wants to file
a revision against the order dated February 23, 1970, ~fore
the High Court and that two months' time may be allowed for
the purpose.
The Court rejected the application for time on
April 4, 1970, on the ground that the application for pennission
to sue in forma pauperis was pending for the last sev'<n years and
that the respondent had ample time for filing the· revision if he
was diligent in the matter. The respondent's counsel then moved
another application on the same day stating that the respondent
wants to adduce evidence and that since he had not come to
Court in the .expectation that his earlier application dated March
31, 1970, for adjournment would be allowed, the case may be
adjourned. This application was also rejected by the Court. And
as counsel for the respondent reported no instruction and as there
was no evidence to show that the respondent was a pauper, the
Court dismissed the application for permission to sue in forma
Pauperis and directed the respondent to pay the court fee within
15 days.
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The respondent challenged the order directing discovery. of
documents P'assed on February '.;.3, 1970, and that dismissing his
application for peimission to sue in' forma pauperis passed on
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April 4, 1970, in revision before the High Court.
The High Court hold that since the proceedings under rules
6 and 7 of Order 33 are summary in character, the "sophisticated
procedure" for discovery should not have been resorted to by the
appellant, that the documents of which discovery was sought
were not specified in the application of the appellant and, theref
fore, the application for discovery was bad, that the enquiry
under rules 6 and 7 of Order 39 was primarily a matter between
the respondent and the State Government and that the trial court
should not have adopted the procedure for discovery and inspectio.'l. at the instance of a private party like the app,ellant. '.The
Court further held that the trial Court acted with material irreG
gularity as it did not consider the question of the necessity for
disc0very of the documents or the relevancy of the documents
of which discovery was sought and also for the reason that, in
ordering discovery of the documents relating to personal accounts,
and pass books, it overlooked the right of the responden~ to
claim privilege.
And as regards 'the order passed on April 4,
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1970 dismissing the application for permission to sue in forma
paup~ris after rejecting the application for ~djourmnent,. the
Court said that the trial Court betrayed an anxiety to get nd of
1il "
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M. L. SETHI v. R. P. KAPUR (Mathew, I.)
701
an application to add to the figures of its disposal.
The Court,
therefore, set aside the order for discovery as W\111 as the order
dismissing the application for permission to sue iri f01rma pauperis.
The respondent submitted that the procedu~e for discovery
of documents is not permissible in proceedings under Order 33
and that it is not salutary to adopt the procedure even if permissible. In Vijay Pratap Singh v. Dukh Haran Nath Singh and
another('), this Court has held that "the suit commences from
the moment an application for permission to sue in forma
pauperis as required by Order 33 is presented." If that be so,
the provisions of rule 12 of Order 11 relating to discovery would
in terms apply to proceedings under Order 33.
There is also
no reason why, if the provisions of Order l, rule 10 relating to
additions of parties, of Order 9 dealing with appearance of
parties and consequen~e of non-app<:arance, and of Order 39
relating to temporary injunctions would apply to proceeding
under Order 33, the provisions in Order 11 dealing with discovery of documents should not apply to such proceedings. In
England, discovery is ordered ill any 'cause' or 'matter' in tilt
Supreme Court to which the rules of the Supreme Court apply.
And 'cause' includes ariy action, suit or other original procetding between a plaintiff and defendant.
Generally speaking., discovery is granted there in all proceedings except purely criminal
proceedings, and civil proceedings where the action is btought
merely to establish a forfeiture or enforce a penalty( 2 ). There
is no reason to hold, if costs could be saved, that it is not salutary to resort to the procedure in proceedings under Order 3 3.
We think that the High Court was wrong in holding that
since the application for discovery did not specify the documents
sought to be discovered, the lower Court acted illegally in the
exercise of its jurisdiction in ordering discovery.
Generally
speaking, a party is entitled to inspection of all documents which
do not themselves constitute exclusively the other party's evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect
thein unless the other party produces them. The party wanting
inspection must, therefore, call upon the opposite party to produce the document.
And how can a party do this unless he
knows what documents are in the possession or power of the
opposite party ? ·In other wo~ds. unless the party seeking discovery knows what are the documents in the pos~ession or custody
of the opposite party which would throw light upon the question in controversy, how is it possible· for him to ask tor discovery of specific documents? Order 11, rule 12 provides~
(I) [1962] S.C.R. Supp, 2, 675.
(2) Halsbury's Laws of England, Vol.12, p. 2.
702
SUPREME COURT REPORTS
[19'73] 1 S.C.R.
"12. Any party may, without filing any affidavit,
apply to the Court for an order directing any other party
to any suit to make discovery on oath of the documents
which are or have been in his possession or power, relating to any matter in question therein. On the hearing
of such application the Court may either refuse or
adjourn the same, if .satisfied that such discovery is not
necessary or not necessary at that stage of the suit, or
make such order, either generally or limited to certain
classes of documents, as may, in its discretion, be
thought fit : Provided that discovery shall not be ordered
when and so far as the Court shall be of opinion that it
is not necessary either for disposing fairly of the suit or
for saving costs"
When the Court makes an order for discovery under the rule,
the opposite party is bound to make an affidavit of documents and
if he fails to do so, he will be subject to the penalties specified
in rule 21 of Order 11. An affidavit of documents shall set forth
all the documents which are, or have been in his possession or
power r~lating to the matter in question i~. the proceedings.. And
as to the documents which are not, but have been in his possession or power, he must state what has become of them and in
whose possession they are, in order that the oppasite party may
be enabiled to get production from the persons who have possession of them (see form No. 5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the
affidavit, he may be required to produce for inspection such of
the documents as he is in possession of and as are rele:vant.
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The High Court was equally wrong in thinking that in passing the order for discovery, the trial Court acted illegally in the
e)(ercise of its jurisdiction as it deprived the respondent of his
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right to claim privilege for non-production of his pass book and
personal accounts, because the stage for claiming privilege had
not yet been reached.
That would be reached only when the
affidavit of discovery is made.
Order 11, rule 13 provides that
every affidavit of documents should specify which of the documents therein set forth \he party objects to produce for inspection
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of the opposite party together with the grounds of objection.
Nor do we think that the High Court was right in holding that
the documents ordered to be discovered were not relevant to the
injuiry. The documents sought to be discovered need not be
admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for. ,the purpose of
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throwing light on the matter in controversy. Every doc?ment
which will throw any light on the case is a document relatmg to
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M. L. SETHI v. R. P. KAPUR (Mathew,/.)
703
a matter in dispute in the proceedings, though it might not ~
admissible in evidence.
In other words, a document might be
inadmissible in evidence yet it may contain information which
may either directly or indirectly enable the party seeking discovery
either to advance his case or damage the adversary's case or
which may lead to a trail of enquiry which ma_y have either of
these two consequences. , The word 'document' in this context
includes anything that is written or printed, no matter what the
material may be upon which the writing or -printing is inserted
or imprinted. We think that the documents of which the discovery
was sought, would throw light on the means of the respondent to
pay court fee and hence relevant.
We venture to think that the High Court was labouring under
a mistake when it said that the enquiry into the question whether
the respondent was a pauper was exclusively a matter between
him and the State Government and that the appellant was not
interes!ed in establishing that the respondent was not a pauper.
Order 33, rule 6 provides '!hat if the Court does not reject the
application under rule 5, the Court shall fix a day of which at
least 10 days' notice shal! be given to the opposite party and the
Government pleader for receiving such evidence as the applicant
may adduce in proof of pauperism and for hearing any evidence
in disproof thereof.
Under Order 33, rule 9, it is open to the
Court on the application of the defendant to dispauper the plaintiff on the grounds specified therein, one of them being that his
means are such that he ought not to continue to sue as a pauper.
An immu:iity from a litigation unless the requisite court fee is
paid by the plaintiff is a valuable right for the defendant. And
does it not follow as a corollary that the proceedings to establish
that the applicant-plaintiff is a pauper, which will take away that
immunity, is a proceeding in which the defendant is vitally
foterested? To what .purpose does Order 33, Rule 6 confer the
right on the opposite party to participate in the enquiry into the
pauperism and adduce evidence to establish that the applicant is'
not a pauper unless the opposite party is interested in the question
and entitled to avail himself of all the normal procedure to establish it? We can think of no reason why if the procedure for
discovery is applicable to proceeding under Order 33, tl!e appellant should not be entitled to avail himself of it.
We a)so do not think that there is any point in the criticism
of t~e Hi¥h Court that the. order for discovery was vague. The
fi/st item m the order was m respect of the documents relating to
the bank accounts of the respondent from March 1 1963 to the
date of the affidavit.
The second item rela:ed to 'docurr:ents in
respect of the immovable proporties held by him during the same
704
SUPllBMB COUllT REPORTS
[1973] 1 S.C.R.
period and the third item was in respect of documents relating
to the personal accounts maintained by him for the same period.
The order was as specific as it could be.
Counsel for the appellant contended that even if the order
for discovery of. documents was bad in law, the High Court was
not justified in imterfering with it. And as regards the order dated
April 4, 1970, ,dismissing the application for permission to me in
forma pauperis after rejecting the application for time, be said,
the High Court was really interfering with the discretion of the
trial Court in the matter of adjoumment. The jurisdiction of the
High Court under section 115 of the C.P.C. is a limited one. As
long afo as 1884, in Rajah Amir Hassan Khan v. Sheo Baksh
Singh ( ) , the Privy Council made the following observation on
s. 622 of the former Code of Civil Procedure, which was replaced
by s. 115 of the Code of 1908 :
"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 the question
whic'h wa~ before them, and they did decide it. Whether
they decided rightly or wrongly, they had jurisdiction to
decide the case; and even if they decided wrongly, they
did not exercise their jurisdiction illegally or with
material irregularity."
In Ba/akrishna Udayar v. Vasudeva Aiyar("), the Board
observed:
"It will be observed that the section applies tc
jurisdiction alone, the irregular exercise or non-exercise
of it, or the illegal assumption of. it. The section is not
directed against conclusions of law or fact in which the
question of jurisdiction is not involved."
Jn N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments
Board, Madras( 3 ), the Judicial Committee said that section 115
empowers · the High Court to satisfy itself on three matters,
(a) that the order of the subjordinate court is within its jurisdiction; (b) that the case is ·one in which the Court ought to exercise
jurisdiction; and ( c) that in exercising jurisdiction th~ Court has
not acted illegally, that is, in breach of some provision of law,
or with material irregularity, that is, by committing some error of
procedure in the course of the trial which is material in that it
may have affected he ultimate decision.
And if the High Court
is satisfied on those three matters, it has no power to interfere
because it differs from the conclusions of the subordinate court on
questions of fact or law.
(1) [18841 L. R. 11 I. A. 237.
(2) [1917] L. R. 441. A. 261, 267.
(3) [1948-49] L. R. 76, I. A. 67.
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M. L. SETHI v. R. P. KAPUR (Mathew, l.)
705
This Court in Manindra Land and Building Corporation Ltil
v. Bhutnath Banerjee and others( 1) _f\nd Vora Abbashhai Ali7
mahomed v. Hajl Gulamnabi Haji Safibhai(') has held that a
distinction must be drawn between the eirohi committed by subordinate courts in deciding questions of law which have relation
to or are concerned with, questions of jurisdiction of the said
C~urt and errors of law which have no such relation o; connection. 'In Pandurang Dhoni Chouguie v. Maruti Hari Jadhav( 3 ),
this Court said :
"The provisions of s. 115 of the Code _have been
examined biy judicial decisions on several occasions.
While exercising its jurisdiction under s. 115, it is not
competent to the High Court to correct errors of fact
however gross they may be, or even errors-of law, unless
the said errors have relation to the jurisdiction of the
Court to try the dispute itself. As clauses (a), (b) and
( c) of s. 115 indicate, it is only in cases where tfte
subordinate Court has exercised a jurisdiction not
vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of. its jurisdiction illegally or with material irregularity that the
revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may
arise in proceedings instituted before subordinate courts
which are related to questions of jurisdiction. It is well
settled that a plea of limitation or a plea of rasjudica is
a plea of law which concerns the jurisdiction of the
Court which tries the proceedings. A finding on these
. pleas in favour of the party raising them would oust the
jurisdiction of the court and so, an erroneous decision
on these pleas can be said to be concerned with questions of 1urisdiction which fall within the purview of
s. 115 of the Code.
But an erroneous decision on a
question of law reached by the sub!ordinate court which
has no relation to questions of jurisdiction of that court.
cannot be -::orrected by the High Court under s. 115."
. TJ;e . "juri~d!ction" is a verbal coat of many colours.
Junsd1cuon ongmally seems to have had the meaning which
Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission('), namely, the entitlement "to enter upon the
enquiry _in ~uestiL'l ".
T~ there was an entitlement to enter upon
an enqmry mto the quesuon, ~hen any subsequent error could only
be regarded as an error within the jurisdiction. The ~st known
formulation of this theory is that made by Lord Denean in R. v.
(I) A.I.R. 1964 S.C. 1336.
(2) A.LR. 1964 S.C. 1341.
(3) [1956] 1 S.C.R. 102.
(4) [1969] 2 A.C. 147
ios
SUj'REME COURT REPORTS
[19'7 3] l S.C.R.
Bolton ( 1). He said that the question of jurisdiction is detenninable at the commencement, not at the conclusion of the enquiry.
In Anisminic Ltd.( 2 ), Lord Reid said:
"But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry it has done
or failed to do something in the course of the enquiry
which is of such a nature that its decision is a. nullity.
It may have given its decision in bad faith.
It may
have made a decison which it had no power to make.
It may have failed in tlie course of the enquiry to comply with the r~quiiements of natural justice. It may in
perfect good faith have misconstrued the provisions
giving it power to act so that it failed to deal with the
question remitted to it and decided some question
which was not remitted to it. It may have refused to
take into account something which it was required to
take into account. Or it may have based its decision on
some matter which, under the provisions setting it up, it
had no right to take into account. I do not intend this
list to be exhaustive."
In the same case, Lord Pearce said :
"Lack of jurisdiction may arise in various ways.
There may be an absence of those formalities or t'.. · ngs
which are conditions precedent to the tribunal having
any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage whil; engaged
on a proper enquiry, the tribunal may depart from the
rules of natural justice; or it may ask itself the wrong
questions; or it may take into account matters which it
was not directed to takt into account.
Thereby it
would step outside its jurisdiction.
It would turn its
inquiry into something. not directed bY Parliament and
fail to make the inquiry which the Parliament did direct.
Any of these things would cause its purported decision
to be a nullity."
The dicta of the majority of the House of Lords in the above case
would show the extent to which 'lack' and 'excess' of jurisdiction
have been assimilated or, in other words, the extent to which we
have moved awav from the traditional concept of "jurisdiction".
The effect of the- dicta in that case is to reduce the difference
between jurisdictional error and error of law within jurisdiction
almost to vanishing point. The practical effect of the decision is
that any error of Jaw can be reckoned as jurisdictional. This
(I) [1841] lQ. B. 66.
(2)
[1969] 2A. C. 147.
A
B
c
D
E
F
•
H
A
B
\ c
D
E
F
G
H
M. L. SETHI v. R. P. KAPUR (Mathew, J.)
707
comes perilously close to saying that there is jurisdiction if lhe
decision is right in law but none if it is wrong. Almost any· misconstruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or "addressing themselves to a
wrong question". The majority opinion in the case leaves a Court
or Tribunal with virtually no margin of legal error. Whether there
is excess of jurisdiction or merely error within jurisdicion can be
determined only by construing the empowering statute, which will
give little guidance. It is really a question of how much latitude
the Court is prepared to allow. In the end it can only be a value
judgment (see H.W.R. Wade, "Constitutional and Administrative Aspects of the Anismanic case", Law Quarterly Review,
Vol. 85, 1969, p. 198). Why is it that a wrong decision on a
question of limitation or res ;udicata was treated as a jurisdictional
error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of
limitation or res iudicata would oust the jurisdiction of the Court
in the primitive sense of the term and render the decision or a ·
decree embodying the decision a nullity liable to collateral attack.
The reason can only be that the error of law was considered as
vital by the Court.
And there is no yardstick to determine the
magnitude of the error other than the opinion of the Court.
The trial Court had jurisdiction to pass the order for discovery.
Even if lack of jurisdiction is assumed to result from every material
error of law-even an error of law within the jurisdiction in the
primitive sense of the term-we · do not think the order was
vitiated by any error of law. The rejection oi the application for
time and the consequent dismissal of the petition for permission
to sue in forma pauperis can hardly be said to sound in jurisdictional error even in its extended sense, as already explained. We
are also not satisfied that the refusal to adjourn occasioned any
~ailure of natural justice so as to render the order a nullity. Nor
is there anything to show that in rejecting the application for time
the Court acted illegally or with material irregularity in the exercise of its jurisdiction.
We would, therefore, set aside the order of the High Court and
allow the appeal but in the circumstances make no order as to
costs.
This order will not in any way affect the validity of. the
order passed by the High Court on August 26, 1971, directing
the respondent to delete the name of the wife of the appellant
from the array of parties.
V.P.S.
Appeal allowed.