# PRIVATE LTD., NEW DELHI v. SARUP SINGH AND OTHERS

- **Citation:** [1970] 2 S.C.R. 368
- **Court:** Supreme Court of India
- **Decided:** 1969-09-12
- **Case number:** Civil Appeal No. 1575 of 1969
- **Bench:** C. A. Vaidialingam, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/private-ltd-new-delhi-v-sarup-singh-and-others-4819
- **Pages:** 7

## Headnote

.
Code of Civil Procedure (Act 5 of 1908) ss. 115, 151
and 141Jurisdiction of the High Court under.
The appellant company filed a suit against the respondents in the
court of the Senior Subordinate Judge, Gurgaon, for the specific performance of an agreement for the purchase of certain land by the company
from the re·spondents.
Part of the land in question became the sub.iect
of proceedings under the Land
Acquisition
Act,
1894, and dispute
relating to compensation was refe:rred to the Court of the District Judge.
The court fixed the comPensation at over Rs. 2 Jakhs. A disoute as to
apportionment ·of the compensation was also referred under s. · 30 of the
Land Acquisition Act to the court but the proceedings \Vere stayed by
the Additional District Judge. pending decision of the suit for specific
performance by the Senior Sub6rdinate Judge.
The suit was dismissed
and thereupon the respondents. applied to the Additional District Judie
for continuation of proceedings under s. 30 and for paymen·t of compensation to them.
The appellant company resisted the application on
the ground that it had filed an appeal in the High Court against the
decree of the Senior Subordinate Judge,
The Additional District Judge
after hearing both parties stayed the proceedings under s. 30 pending
disposal of the company's a11peal by the High Court. Ori a revision application under s. 115 C.P.C. filed by the respondents,
the High Court
ordered on March 18, 1969 that .i sum of not m6re than Rs. 1,78,000
out of the compensation for the acquired land be paid to the respondents
who must undertake not Iv sell the rest of the land during the pendoncy
of the appeal.
The Additional District Judge after hearin~ the parties
judicially interpretted the order to mean that Rs. 1,78.000 were to be
paid to the respondents after the conclusion of the proceedings under
s. 30.
The resoondento;; again moved the Hi~h Court with an application
under s. 151/141 C.P.C. for a clarifioation of its earlier order whereupon
bv order dated May 8. 1969 the High Court ordered immediate payment.
The company challenged the Hiμh Court's orders dated March 18, I 969
and May 8, 1969 in an appeal before this Court. It w3' contended on
its b~h::tlf that in
making its first order the High Court· exceeded
its iurisdiction u .1 s 115 C.P .C. and in making the c!arificatory order
ex-parte it violated the rules of natural justice.
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HELD : (i) The position is firmly established that while exercising its
jurisdiction under s. 115, it is not competent to the High Court to correct
errors of fact however gross or even errors of law unless the errors have
relation to the ju:risdiction of the Court to try ·the dispute itself.
Cl~usc.s
(a) and (b) of this section on their: nlain reading quite clearly did not cover
the present case bec-ause 1t had not been shown that the learned Additional
Sessions Judge had either exercised a jurisdiction not vested in him by
law or h2d failed to exercise a iurisdiction so vested in him in recording
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the order that the proceedings under reference be stayed till the deci~ion
of the appeal -by the High Court in the proceedings for specific performance
of the agreement in question. Clause (c) of the section also did not apply
_
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D.LF. HOUSING co. v. SARUP SINGH (Dua, J.)
369
to the pres~nt case. The words "illegally" and "with material irregularity"
as used in this clause do not cover either errors of fact or of law; they do
not refer to the decision ar'rived at but merely to the manner
in
;which
it is reached. The errors contemplated by this clause may relate either to
breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors of either fact or of law, after
the prescribed procedure has been complied with. [375 D-GJ
The High Court had not adverted to the limitation imposed on its
power under s. 115 of the Code. and had treated the revision as if it was
an appeal. Merely beeause the High Court wou

## Text

368
D.L.F. HOUSING & CONSTRUCTION COMPANY
A
PRIVATE LTD., NEW DELHI
v.
SARUP SINGH AND OTHERS
September 12, 1969
(C. A. VAIDIALINGAM AND I. D. DUA, JJ.J
.
Code of Civil Procedure (Act 5 of 1908) ss. 115, 151
and 141Jurisdiction of the High Court under.
The appellant company filed a suit against the respondents in the
court of the Senior Subordinate Judge, Gurgaon, for the specific performance of an agreement for the purchase of certain land by the company
from the re·spondents.
Part of the land in question became the sub.iect
of proceedings under the Land
Acquisition
Act,
1894, and dispute
relating to compensation was refe:rred to the Court of the District Judge.
The court fixed the comPensation at over Rs. 2 Jakhs. A disoute as to
apportionment ·of the compensation was also referred under s. · 30 of the
Land Acquisition Act to the court but the proceedings \Vere stayed by
the Additional District Judge. pending decision of the suit for specific
performance by the Senior Sub6rdinate Judge.
The suit was dismissed
and thereupon the respondents. applied to the Additional District Judie
for continuation of proceedings under s. 30 and for paymen·t of compensation to them.
The appellant company resisted the application on
the ground that it had filed an appeal in the High Court against the
decree of the Senior Subordinate Judge,
The Additional District Judge
after hearing both parties stayed the proceedings under s. 30 pending
disposal of the company's a11peal by the High Court. Ori a revision application under s. 115 C.P.C. filed by the respondents,
the High Court
ordered on March 18, 1969 that .i sum of not m6re than Rs. 1,78,000
out of the compensation for the acquired land be paid to the respondents
who must undertake not Iv sell the rest of the land during the pendoncy
of the appeal.
The Additional District Judge after hearin~ the parties
judicially interpretted the order to mean that Rs. 1,78.000 were to be
paid to the respondents after the conclusion of the proceedings under
s. 30.
The resoondento;; again moved the Hi~h Court with an application
under s. 151/141 C.P.C. for a clarifioation of its earlier order whereupon
bv order dated May 8. 1969 the High Court ordered immediate payment.
The company challenged the Hiμh Court's orders dated March 18, I 969
and May 8, 1969 in an appeal before this Court. It w3' contended on
its b~h::tlf that in
making its first order the High Court· exceeded
its iurisdiction u .1 s 115 C.P .C. and in making the c!arificatory order
ex-parte it violated the rules of natural justice.
B
c
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HELD : (i) The position is firmly established that while exercising its
jurisdiction under s. 115, it is not competent to the High Court to correct
errors of fact however gross or even errors of law unless the errors have
relation to the ju:risdiction of the Court to try ·the dispute itself.
Cl~usc.s
(a) and (b) of this section on their: nlain reading quite clearly did not cover
the present case bec-ause 1t had not been shown that the learned Additional
Sessions Judge had either exercised a jurisdiction not vested in him by
law or h2d failed to exercise a iurisdiction so vested in him in recording
H
the order that the proceedings under reference be stayed till the deci~ion
of the appeal -by the High Court in the proceedings for specific performance
of the agreement in question. Clause (c) of the section also did not apply
_
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D.LF. HOUSING co. v. SARUP SINGH (Dua, J.)
369
to the pres~nt case. The words "illegally" and "with material irregularity"
as used in this clause do not cover either errors of fact or of law; they do
not refer to the decision ar'rived at but merely to the manner
in
;which
it is reached. The errors contemplated by this clause may relate either to
breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors of either fact or of law, after
the prescribed procedure has been complied with. [375 D-GJ
The High Court had not adverted to the limitation imposed on its
power under s. 115 of the Code. and had treated the revision as if it was
an appeal. Merely beeause the High Court would have tfelt inclined, had
it dealt with the matter initi!Uy, to come to a different conclusion on the
que3tion of continuing stay of the reference proceedings pending .decision
of the appeal could hardly justify interference on revision under s. 115
of the Code when there was no ille~ality or material irregularity committed by the Additional Sessions Judge in his manner of dealing with the
question. The order of the High Court dated March 18, 1964 had therefore' to be set aside. [375 F-H]
Rajah Amir Hassan Khan v, Shea Baksh Singh. I! Indian Appeals 237;
Balakrishna Udayar v. Vasudeva Aiyar, 44 Indian Appeals 261;
Keshav
Dea v. Radha Kissan [1953] S.C.R. 136 applied.
0
(ii) The ex-parte order dated May 8 1969. was equally difficult to
sustain. The High Court had proceeded to make an order virtually and
in effect reversing the iudicial order made by the learned Additional Judge
in favour of tile appellant. This could more appropriately be done only
on appeal or revision after notice to the party affected and not on an
application under S'i. 151/141 C.P.C.
Such an application in the circumstances ·was misconceifed. [376 C, F]
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1575 of
1969.
Appeal by special leave from the judgment and order dated
March 18, 1969 and May 8, 1969 of the Punjab and Haryana
High Court in Civil Revision No. 1014 of .1968 and C.M. No.
1863 of 1969.
F
S. V. Gupte and Ravinder Narain, for the appellant.
K. R. Chaudhuri, for the respondents.
The Judgment of the Court was delivered by
Dua, J.
By means of an agreement dated August 9, 1963,
G · the appellant-company agreed to purchase from the respondents,
land measuring 264 kanals and 12 marlas. A sum of
Rs. 1,87 ,000 was paid as earnest money. The sale deed was to
be registered py April 30, 1964.
As it was not so registered,
both parties blamed each otherjor the breach.
In May, "1966
the Government issued a notiljcation under -:>. 4 of the Land AcH
quisition Act which was follo\,V(:q by ~a notification under s. 6 in
September 1966 acquiring 104 kanals and 18 mar las of land out
of the litnd agreed to be sold. The Collector made an award of
the compensation fonhe acquired land, against which a reference
370
SUPREME COURT REPORTS
[1970] 2 S.C.R.
was made to the Court of the District Judge. In May, 1968 the
compensation was enhanced to a sum over Rs. 2 lakhs. In the
mean time on April 15, 1967, the appellant-company instituted
a suit for specific performance of the agreement dated August 9,
1968. This suit was dismissed by the Court of the Senior Subordinate Judge, Gurgaon on August 13, 1968. A Regular First
Appeal (No. 216 of 1968) against the dismissal of the suit is pending in the Punjab and Haryana High Cpurt.
It app.~ars that the dispute as to apportionment of compensation under s. 30 of the Land Acquisition Act was also referred to
the Court. In view of the institution of the suit for specific performance, an application was apparently made in the Court of the
learned Additional District Judge dealing with the reference under
the Land Acquisition Act to stay those proceedings pending the
decision of the suit by the learned Senior Subordinate Judge. On
February 28, 1968 the learned Additional District Judge took the
view that the entire matter in his Court was covered by the civil
suit, it being further ob~ed in the order that even the question
of the jurisdiction of the Senior Subordinate Judge to determine
the amount of compensation was to be first decided by the civil
court. On this view, the reference proceedings were stayed pending the decision of the civil court.
After the dismissal of the suit, the respondents applied to the
Court of the learned Additional District Judge for continuing the
proceedings and for making an order of payment of compensation
in their favour. This prayer was contested by the appellant-company on the ground that an appeal against the decree dismissing
the suit had already been presented in the High Court and that the
proceedings for payment of compensation should continue to remain stayed pending the disposal of the appeal. The learned Additional District Judge after hearing both sides decided on August
30, 1969 to continue the order of stay pending the decision of the
appeal by the High Court. According to him, the question whether the original agreement had become frustrated or was alive
and deserved to be specifically enforcefi, would have an important
bearing on the question of apportionment of compensation.
The respondents preferred a revision to the High Court against
this order and a learned Single Judge on March 18, 1969 reversed
the order continuing stay of the proceedings under s. 30 and further directed payment of Rs. 1,78,000 to the respondents.
The
order of payment of this amount was framed in the following
words:-
"I do feel that in view of the fact that the suit filed
by the respondent-company has been dismissed, prima
facie, it is reasonable that the proceedings under section
30 of the Act shoμld continue, but the petitioners may
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D.L.F, HOUSING co. v. SARUP SINGH (Dua, J.)
371
not be allowed a.ctual payment of more than Rs.
1,78,000. The balance of the amount due in respect of
the land of the petitioners shall be kept with the Government to be disbursed in accordance with the decision
in the regular first appeal. This will, however, be subject to the further condition that the petitioners will file
an undertaking in this Court that they shall not dispose
of or otherwise transfer any interest by creating any encumbrance over the balance of the land which was the
subject-matter of the agreement dated the 9th of August,
1963, without the permission of the Court.
Learned
counsel for the petitioners aopearing before me have
agreed to this condition being imposed."
The concluding portion of that order may also be reproduced :
"
. I accept this revision petition
.
.
and direct that the proceedings under section 30 of the
Act be continued, but the petitioners will not be paid
more than Rs. 1,78,000 and the balance will remain
undisbursed till the decision of the regular first appeal.
If the appeal is accepted, this amount shall be treated as
part of the consideration that has to be paid by the respondent-company.
Till the decision of the appeal or
till further orders of this Court, the petitioners will not
dispose of the balance of the land, which is the subjectmatter of the agreement, without the permission of the
Court."
Before the learned Additional District Judge, the question arose
as to whether under the order of the High Court dated March 18,
1969, the sum of Rs. 1,78,000 was to be paid immediately or after
the decision of the reference under s. 30. The parties apparently
desired the learned Additional Judge to decide this question judicially on a consideration of the circumstances of the case. Both
parties were accordingly heard and the learned Additional District
Judge in a detailed order dated April 19, 1969 expressed his conclusion thus :-
"To my mind it seems that the decision of the reference under section 30, is to take place first and it is thereafter that the applicants shall be paid amount upto
Rs. 1,78,000. In these circumstance~, it is ordered that
the proceedings u/s 30 be restored and should continue
The cheque will be given only after the decision of th~
reference u/s .30. The revision ?efore the Hon'ble Judge
was only agamst the order staymg the proceedings and
there was no revision regarding the non-payment of the
amount as that was not the question before this court
and no orders were passed by this court in that connec-
372
SUPREME COURT REPORTS
(1970] 2 S.C,R.
tion.
As such, the intention of the Hon'ble Judge in
passing the orders seems to be that the amount iuay not
be paid to any of the parties now but after the decision
of the reference u/..s 30. I order accordingly."
The learned Additional District Judge also fixed May 21, 1969
for the evidence of the parties. It appears that instead of challenging on merits the order dated April 19, 1969 in the High Court
by way of revision, the responcents filed in that Court on May 6,
1969, an application under ss.
151/141 C.P.C. for clarification of its order dated March 18, 1969.
This application was
placed before the High Court for preliminary hearing on May 8,
1969 and the learned Single Judge recorded the following order
·without giving notice to the appellant :-
..
"My orders are clear thi!t the amount of Rs.1,78,000
may be paid to the Petitioners. The order further directs
the petitioners not to dispose any part of the land which
was the sub.iect-matter of the agreement.
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With these observations, this petition is filed."
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It is against these two orders that the present appeal by special
leave has been presented and the short. argument pressed by Shri
·Gupte was that the order of th.e High Court dated March 18, 1969
is unsustainable because there was no jurisdictional infirmity made
-0ut in the order of the learned Additional District Judge dated
August 30, 1968, which 'would justify interference on revision
E
under s. 115 C. P.C. In regard to the order dated May 8, 1969,
it was further complained that this order was made ex parte with-
·OUt notice to the app.ellant. It was contended by Shri Gupte that
in face of the judicial order dated April 19, 1969 madr by the
learned Additional District Judge after hearing both sides at
length, it was not open to tJie High Court to record the ex parte
F
·order dated May 18, 1969 without affording to the appellant an
oμportunity for supporting the view taken by the learned Addi-
·tional District Judge.
The submissions made by Shri Gupte, in our opinion, possess
merit. The revisional jurisdiction has been conferred on the High
-Court by s. 115, C.P.C. in these terms :-
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"115. The High Court may call for the record of
any case which has been decided by any Court subordi-
,
nate to such High Court and in which no appeal lies
thereto, and if such Subordinate Court appears-
(a) to have exercised a jurisdiction noc vested in it
by law or
II
(b) to have failed to exercise a jurisdiction so vested.
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D.L.F, HOUSING co. v. SARUP SINGH (Dua, J.)
373
( c) to have acted in the exercise of its jurisdiction illegally or with ma!~rial irregularity,
the High Court may make such order in the case
as it thinks fit."
The mass or reported qses only serve to show that the High Courts
do not always appreciate the limits of their jurisdiction under this
section. The legal posjtion was authoritatively laid down by the
Privy Council as far back as 1894 in Rajah Amir Hassan Khan v.
Sheo Baksh Singh('). The Privy Council again pointed out in
Balakrishna Udayar v. Vasudeva Aiyar(') that this section is not
directed against the conclusions of law or fact in which the question of jurisdiction is not involved.
This view was approved by
this Court in Keshav Deo v. Radha Kissan('') and has since been
reaffirmed in numerous decisions.
The position thus seems to be firmly established that while
exercising the jurisdiction under s. 115, it is not competent to the
High Court to correct errors of fact however gross or even errors
of Jaw unless the said errors have relation to the jurisdiction of the
Court to try the dispute itself. Clauses (a) and (b) of this section
on their plain reading quite clearly do not cover the present case.
It was not contended, as indeed it was not possible to contend,
that the learned Additional District Judge had either exercised a
jurisdiction not vested in him by law or had failed to exercise a
jurisdiction so vested in him, in recording the order that :he proceedings under reference be stayed till the decision of the appeal
by the High Court in the proceedings for specific performance of
the agreement in question. Clause (c) also does not seem to apply
to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact
or of Jaw; they do not refer to the decision arrived at but m~rely
to the manner in which it is reached. The errors contemplated by
this clause may, in our view, relate either to breach of some provision of Jaw or to material defects of procedure affecting the ultimate decision, and not to errors 'ither of fact or of Jaw, after the
prescribed formalities have been complied with. The High Court
does not seem to have aaverted to the limitation imposed on its
power under s. 115 of the Code. Merely becausethe High Court
would have felt inclined, had it :lealt with the matter initially, to
come to a different conclusion on the question of continuing stay
of the reference proceedings pending decision of the apoeal, could
hardly justify interference,on revision under s. 115 of the Code
when there was no illegality or material irregularity committed by
the learned Additional Districi Judg~ in h.is manner of dealing with
tlus question.
It seems to us that m this matter the Hieb Court
treated the revision virtually as if it was an appeal.
(I) 11 Indian AppeaJs 237. ~•--- (2) 44 Indja~ Appe;ls 261.
L2 Sup. Cl/70-12
13) [19531S.C.R.136.
374
SUPREME COURT REPORTS
. [1970] 2 S.C.R.
The respondents' sulJmission that the order made by the High
Court on March 18, 1969 was a consent order, is unsustainable.
The agreement mentioned in that order is obviously the agreement
by the.respondents (petitioners in the High Court) to the condition
imposed on them, to file an undertaking in that Court not to dispose of or otherwise transfer any interest by creating encumbrance
over the r.emaining land which, was the subject-matter of the
agreement dated August 9, 1968, without the previous permission
of the Court. There is nothing in the order of the High Court or
on the record to which our attention was drawn, showing or even
suggesting that the appellant had agreed to the revision being
allowed.
The order of the High Court dated March 18, 1969
must, therefore, be set 1side.
The ex parte order dated May 8, 1969 is equalJy difficult to
sustain. In para 5 of the respondents' application dated May 6,
1969 under s. 151/141 Civil P.C. presented in the High Court,
a reference was clearly made to the order passed by the learned
Additional District Judge on April 19, 1969. It was averred in
this paragraph :-
"That the learned District Judge by his order dated
19-4-6.9, has interpreted the High Court's ord~r wrongly
and has held that the intention of the Hon'ble Judge in
passing the order dated 18-3-69, seemed to be that the
amount may not be paid to any of the parties now but
only after the decision of the reference under Section
30 of the Land Acquisition Act. Thus he has fixed the
case under Section 30 of the Act for evidence on
21-5-69."
It seems that at the stage of prelil)lfo.ary hearing the attention of
the High Court was not drawn to this fact and that Court proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional District Judge in favour
of the appellant.
This could more appropriately be done only
on appeal or revision from the order dated April 19, 1969 after
notice to the party affected and not on an application under ss.
151/141 Civil P.C. Such an application in the circumstances was
misconc~ived. The ex parte .order is thus unsustainable and must
be set aside. ·
This appeal accordingly succeeds and the impugned orders
are set aside with costs.
We would like to make it clear that it will be open to the parties, if so advised, to a!)proach the High Court by appropriate proceedings for the speedy disposal of the appeal.
R.K.P.S.
A ppea/ allowed.
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