# State Bank of Bikaner v. Balai Chander Sen

- **Citation:** [1964] 4 S.C.R. 409
- **Court:** Supreme Court of India
- **Decided:** 1961-12-27
- **Bench:** A.K. Sarkar, M. Hidayatullah, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-bank-of-bikaner-v-balai-chander-sen-3159
- **Pages:** 21

## Headnote

Civil Pracedure-Revisional jurisdiction
of High
CourtMeaning of "case" in s • . 115 of the Code of Civil Procedure--
Separate trial of issues of law and issues of fact-Code of Civil
Procedure, 1908 (Act 5 of 1908), s. 115, O. 14, r. 2.
The appellant and the respondent entered into a partnership
to do business as Contruction Engineers but in February 1956 they
agreed to dissolve it.
It was agreed that the respondent was to
take over all the assets and liabilities of the partnership and keep
the appellant indemnified from all liability.
Later on, a suit was
filed by the appellant for dissolution of partnership and rendition
of accounts.
That suit ended in a compromise which provided
that all realisations of the old partnership would be converted into
cash and placed in joint account in the name of the two partners
before being paid towards the liabilities of the partnership.
The respondent filed two suits against the appellant for recovery of certain amounts on the allegation that the appellant had
taken that amount as loan. The defence of the appellant was that
as the money was still in the joint flame of the two partners and
he had taken the money from the loint account, suits between
the two partners were not maintainable.
In trying preliminary issues raised in the suits the trial Judge
held that the suits were not maintainable, but instead of dismissing
the suits there and then, he set them down for a future date.
Against the :findings of the trial Judge, revision petitions were
filed in the High Court under s. 115 of the Code of Civil PmOO<lure. The High Court set aside the orders passed by the Trial
Judge and held that the suits could not be held as not maintainable. The appellant appealed by special leave.
The appellant challenged the order of the High Court on
the ground that the order of the trial Judge did not amount to
2 7-2 S. C. lnd;a/64
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
1963
August 14
1963
Major
S. S. Khanna
v.
Brig.
F. /. Dillon
410
SUPREME COURT REPORTS
[1964]
a case which has been decided" within the meaning of s. 115 of
Code of Civil Procedure, that the decrees which may be passed
in the suits being subject to appeal to the High Court, the power
of the High Court was by the express terms of s. 115 excluded,
and that the orders of the trial Judge did not fall within any ot
the three clauses (a), (b) and (c) of s. 115.
Rejecting the contentions of the appellant,
Held :The High Court was right in setting aside the order
passed by the trial Judge and in holding that without investigation
as to the respective claims made by the parties by their pleadings
on the matters in dispute, the suits could not be held as not
maintainable.
The. decision of the trial Judge affected the rights
and obligations of the parties directly.
It was the decision on
an issue relating to the jurisdiction -of the court to entertain the
suit filed by the respondent. The decision attracted cl. (c) of s. ll5
of the Code of Civil Procedure. ·
Per Sarkar and Shah, J /.-The expression "case" is a word of
comprehensive import.
It includes
civ~l proceedings other
than
suits and is not restricted by anything contained in s. 115 to the
entirety of the proceedings in a.· civil': .court.
To interpret the expression "case" as an entire· proce'~ding only and not a part of
the proceeding would be to impose
~n unwa.rranted restriction
on the exercise of fX>Wers of superintendence and may result ·rn
certain cases in denying relief to the aggrieved litigant \vhere it
is most needed and may result in· the perpetration of gross injustice.
.
The High Court is not obligCd to exercise its jurisdiction
when a case is decided by a subordinate court and the conditions
in els. (a), ( b) or ( c) of s. 115 are satisfied.
Exercise of the
jurisdiction is discretionary and the J:Iigh Court is not bound to
interfere merely because the conditions are satisfied.
The int~r
locutory character of the order, existence of another remedy to
the aggrieved party by wa

## Text

_Characters 0–39,607 of 50,457. This is a partial read: ask again with offset=39607 for what follows._

1
-
'
-
4 S.C.R.
SUPREME COURT REPORTS
409
sought for must be granted.
We therefore allow the appeal, set aside the order of
labour court and grant the application of the appellantbank dated December 27, 1961 and approve the proposed
action. In the circumstances we pass no order as to costs.
Appeal allowed.
MAJOR S. S. KHANNA
ti.
BRIG. F.J. DILLON
(A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH, JJ.)
Civil Pracedure-Revisional jurisdiction
of High
CourtMeaning of "case" in s • . 115 of the Code of Civil Procedure--
Separate trial of issues of law and issues of fact-Code of Civil
Procedure, 1908 (Act 5 of 1908), s. 115, O. 14, r. 2.
The appellant and the respondent entered into a partnership
to do business as Contruction Engineers but in February 1956 they
agreed to dissolve it.
It was agreed that the respondent was to
take over all the assets and liabilities of the partnership and keep
the appellant indemnified from all liability.
Later on, a suit was
filed by the appellant for dissolution of partnership and rendition
of accounts.
That suit ended in a compromise which provided
that all realisations of the old partnership would be converted into
cash and placed in joint account in the name of the two partners
before being paid towards the liabilities of the partnership.
The respondent filed two suits against the appellant for recovery of certain amounts on the allegation that the appellant had
taken that amount as loan. The defence of the appellant was that
as the money was still in the joint flame of the two partners and
he had taken the money from the loint account, suits between
the two partners were not maintainable.
In trying preliminary issues raised in the suits the trial Judge
held that the suits were not maintainable, but instead of dismissing
the suits there and then, he set them down for a future date.
Against the :findings of the trial Judge, revision petitions were
filed in the High Court under s. 115 of the Code of Civil PmOO<lure. The High Court set aside the orders passed by the Trial
Judge and held that the suits could not be held as not maintainable. The appellant appealed by special leave.
The appellant challenged the order of the High Court on
the ground that the order of the trial Judge did not amount to
2 7-2 S. C. lnd;a/64
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
1963
August 14
1963
Major
S. S. Khanna
v.
Brig.
F. /. Dillon
410
SUPREME COURT REPORTS
[1964]
a case which has been decided" within the meaning of s. 115 of
Code of Civil Procedure, that the decrees which may be passed
in the suits being subject to appeal to the High Court, the power
of the High Court was by the express terms of s. 115 excluded,
and that the orders of the trial Judge did not fall within any ot
the three clauses (a), (b) and (c) of s. 115.
Rejecting the contentions of the appellant,
Held :The High Court was right in setting aside the order
passed by the trial Judge and in holding that without investigation
as to the respective claims made by the parties by their pleadings
on the matters in dispute, the suits could not be held as not
maintainable.
The. decision of the trial Judge affected the rights
and obligations of the parties directly.
It was the decision on
an issue relating to the jurisdiction -of the court to entertain the
suit filed by the respondent. The decision attracted cl. (c) of s. ll5
of the Code of Civil Procedure. ·
Per Sarkar and Shah, J /.-The expression "case" is a word of
comprehensive import.
It includes
civ~l proceedings other
than
suits and is not restricted by anything contained in s. 115 to the
entirety of the proceedings in a.· civil': .court.
To interpret the expression "case" as an entire· proce'~ding only and not a part of
the proceeding would be to impose
~n unwa.rranted restriction
on the exercise of fX>Wers of superintendence and may result ·rn
certain cases in denying relief to the aggrieved litigant \vhere it
is most needed and may result in· the perpetration of gross injustice.
.
The High Court is not obligCd to exercise its jurisdiction
when a case is decided by a subordinate court and the conditions
in els. (a), ( b) or ( c) of s. 115 are satisfied.
Exercise of the
jurisdiction is discretionary and the J:Iigh Court is not bound to
interfere merely because the conditions are satisfied.
The int~r
locutory character of the order, existence of another remedy to
the aggrieved party by way of appeal from the ultimate order
or decree in the proceeding or by a suit, and the general equities
of the case being served by the order made are all matters to be
taken into account in considering whether the High Court~ even
in cases where the conditions which attract the jurisdiction exist,
should exercise its jurisdiction.
Revisional jurisdiction of the High Court may be
exercised
irrespective of the question whether _an appeal lies thereto from
the ultimate decree or ·order passed , i.n. the suit or not.
The expression "in which no appeal lies ther.eto" does not mean that it
excludes the exercise of the revision~! jurisdiction when an appeal
may be competent to the High C<>W1 from the final order.
The use of the word "in" is not _intended to distinguish orders
passed in proceedings not subject tc;> .appJ:'.al ,from the final adju.
dication, frorn those from which no ~ppeal lies.
If an appeal lies
against the adjudication -directly to :thit, High Court or to another
court from the decision of which an. ap~al lies to· the. High.Court,
-
-
1
-
\i.
4 S.C.R.
SUPREME COURT REPORTS
411
it has no power to exercise its revisional jurisdiction against
the adjudication, but where the decision itself is not appeal·
able to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed ex·
eluded.
Under Or. 14, r. 2, where issues both of law and fact arise
in the same suit and the court is of the opinion that the case
or part thereof could be disposed of on the issues of law only,
it shall try those issues first, and for that purpose, may, if it thinks
fit, postpone ·settlement of the issues of fact until after the
issues of la\\,. have been determined. The jurisdiction to try
issues of law apart from the issues of fact may be exercised only
where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code of Civil Procedure confers no jurisdiction upon the court to try a suit on
mixed issues of law and fact as preliminary issues. Normally, all
issues in the suit should be tried by the Court; not to do so
especially \vhen the decision on issues even of law depends upon
the decision of issues of fact, would result in a lop-sided trial of
the suit.
Per Hidayatullah, f.-A decision of the subordinate Court is
amenable to the revisional jurisdiction of the High Court unless
that jurisdiction is clearly barred by a special law or an appeal
lies therefrom. The expression "in which no appeal lies" does not
speak of the appeal "under the Code". The expression is a general one and applies to every decision of a court subordinate to
the High Court in which no appeal lies, whether under the Code
or otherwise.
The decision of the trial Judge was erroneous because he denied himself the jurisdiction of holding that the suits were not
maint.ainable.
The fact that he did not dismiss the suits and
did not dra\v up decrees for that purpose, was itself an exercise
of jurisdiction with material irregularity, if not
also illegality.
In so far as the parties were concerned, the suits were no longer
live suits as the decision had put an end to them.
The \vord "case" in s. 1I5 does not mean a concluded suit
or proceeding but each decision which terminates a part of the
controversy involving a matter of jurisdiction.
Where no question of jurisdiction is involved, the court's decision cannot be
impugned under s. I 15 because the court has jurisdiction to decide
wrongly as well as rightly.
Balakrishna Udayar v. Vasudeva Aiyar, L.R.
44
I.A.
261,
Ryats of Garabandho v. Zamindar of Parlakimedi, LR. 70 I.A.
129; Budhu/al , .. Mewa Ram, I.LR. 43, All. 564 (F.B.); Purohit Swarupnaraian v: Gopinath, I.LR. (1933) Raj. 483(F.B.), Pyarchand ~· Dungm· Singh, I.LR. (1953) Raj. 608 and Rex v. Nat
Bell Liquors Ltd., [19!'2] 2 A.C. 128, referred to.
CML APPELLATE fuR1so1cTJON : Civil Appeal No. 320 of
1963.
1963
Major
S.S. Khanna
...
Brig.
F. f. Dillon
1963 .
Major
S. S. Khanna
v.
Brig.
F. /. Dillon
Shah,/.
412
SUPREME COURT REPORTS
[1964]
Appeal by special leave from the judgment and order
dated October 26, 1962, of the Punjab High Court at Delhi
in Civil Revision Nos. 525 and 526-D of 1960.
N.C. Chatteriee, MK. Ramamurthy, R.K. Garg, S.C.
Agarwal and D.P. Singh, for the appellant (in both the
appeals).
A.V. Viswanatha Sastri, Bakshi Shiv Charan Singh
and.S.N. Anand, for the respondent (in both the appeals).
August 14, 1963.
The Judgment of A.K. Sarkar and
J.C. Shah, JJ., was delivered by Shah, J. M. Hidayatullah,
J. delivered a separate Opinion.
SHAH, J.-Brig. F.J. Dillon and Major S.S. Khannahereinafter called 'Dillon' and 'Khanna' respectivelycarried on business in partnership as Construction Engmeers. They agreed to dissolve the partnership with effect
from February 15, 1956. By the deed of dissolution it was
agree<l that Dillon was to take over all the assets and
properties of the partnership as absolute owner and
to pay all the debts and to discharge all the liabilities of the partnership and to keep Khanna indemnified
against all demands and claims in relation to the partnership business.
But the deed did not terminate the disputes between
the partners, and Khanna commenced an action against
Dillon in the Court of the Subordinate Judge, 1st Class,
Delhi "for dissolution of the partnership and rendition of
accounts". On January 12, 1957, the parties arrived at a
compromise (which was incorporated into a decree of the
Court) confirming the earlier dissolution of the partnership, subject to a scheme of winding up, under which all
outstandings realised from the debtors of the firm and the
sale proceeds of certain assets were to go into a banking account to be opened in the joint names of Dillon and Khanna and were to be applied in the first
instance to meet the liabilities of the dissolved firm, and
the balance in that joint account was to belong to Dillon.
Some outstandings of the dissolved partnership were collected by Dillon and were deposited in the joint account
of Dillon and Khanna.
Dillon filed a suit in the Court of the Subordinate
Judge at Delhi for a decree for Rs. 54,250.00 with future
..
-
-
•·
-
4 S.C.R.
SUPREME COURT REPORTS
413
interest alleging that between the months of May 1957
and November 1957 he had, at the request of Khanna, advanced in three sums an aggregate amount of Rs. 46,000.00
as short-term loans which Khanna had promised to but
had failed to repay. Khanna pleaded that he did not borrow any loans from Dillon, and that the amounts claimed in the action being advanced, even on the plea of Dillon.
out of joint funds belonging to the two partners, action for
recovery of those amounts was in law not maintainable.
Out of the issues raised by the Trial Court in the
suit, the third issue viz :
"Whether this suit is not maintainable and the plaintiff is not entitled to institute this suit, as alleged in
paras Nos. 15, 16, 17, 18 of the written statement",
was at the request of Khanna tried as a preliminray
issue, and it was held that the suit being by a partner
against another partner of a dissolved firm which was in
the process of winding up, and in respect of advances from
the partnership assets, was not maintainable.
The High Court of Punjab in exercise of its revisional jurisdiction set aside the order, and directed that the
suit be heard and disposed of according to law.
With special leave this appeal is preferred by Khanna.
The jurisdiction of the High Court to set aside the
order in exercise of the power under s. 115 Code of Civil
Procedure is challenged by Khanna on three grounds :-
(i) that the order did not amount to "a case which
has been decided" within the meaning of s. 115
Code of Civil Procedure :
(ii) that the decree which may be passed in the suit
being subject to appeal to the High Court. the
power of the High Court was by the express terms
of s. 115 excluded ; and
(iii) that the order did not fall within any of the
three clauses (a), (b) and (c) of s. 115.
The validity of the argument turns upon the true
meaning of s. 115 Code of Civil Procedure, which provides:
"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 appears1963
Maior
S.S. Khanna
v.
Brig.
F. /. Dillon
Shah,/.
1963
Major
S. S. Kliflllna
v.
Brig.
F. ]. Dillon
Shah, ].
414
SUPREME COURT REPORTS
[1%4]
(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 consists of two parts : the first, prescribes
the conditions in which jurisdiction of the High Court
arises i.e. there ·is a case decided by a subordinate Court
in which no appeal lies to the High Court ; the second,
sets out the circumstances in which the jurisdiction may
be exercised. But the power of the High Court is exercisable in respect of "any case which has been decided". The
expression "case" is not defined in the Code, nor in the
General Clauses Act. It is undoubtedly not restricted to
a litigation in the nature of a suit in a Civil Court : Balakrishna Udayar v. Vasudeva Aiyar(') ; it includes a
proceeding in a Civil Court in which the jurisdiction
of the Court is invoked for the determination of some
claim or right legally enforceable. On the question whether an order of a Court which does not finally dispose of
the suit or proceeding amount to a "case which has
been decided'', there has arisen a serious conflict of opinion in the High Courts in India, and the question has
not been directly considered by this Court. One view
which is accepted by a majority of the High Courts is
that the expression "case" includes an interlocutory proceeding relating to the rights and obligations of the parties, and the expression "record of any case" includes so
much of the proceeding as relates to the order disposing
of the interlocutory proceeding. The High Court has
therefore power to rectify an order of a Subordinate Court
at any stage of a suit or proceeding even if there be another remedy open to the party aggrieved i.e. by reserving
his right to file an appeal against the ultimate deci"
sion, :i.nd making the illegality in the order a ground
of that appeal.
The other view is that the expression
"case" does not· include an issue or a part ,of a suit or
proceeding and therefore the order on an issue or a part of
( 1 ) L.R. 44 I.A. 261. .
.
-
..
-
-
,·,;
,., {
.
\• .. , .
, .
'
-- - -1
41 S.c.R. -
._-_ SUPREME COURT -REPORTS -
415
~
~
.
"
,..,-·--
a suit or Jiroceeding is 'not ·a "case which has been decided",
and the High Court has no power in · exercise of its re-
.. vUional jurisdiction, to correct an error in an interlocutory
order.
-
.
-
An analysis of. the cases decided by the Higli Courts-
-their number is legion-would serve no useful purpose. In
, every High -Court from time to time opinion has fluctuated. The meaning of the a:pr~ion "case" must be sought
in the nature . of the jurisdiction conferred by s. 115, ·
__ and the -purpose for which - the - High Courts were in.
-vested with it. - , ---- -
:
'
- --
By their -constitution the High - Courts of Calcutta,
-Madras, and ~y
were within .Presidency towns, as
successors to the respective Supreme Courts competent to
issue writs of certiorari, mandamus and prohibition. -This.
was so because the jurisdiction of the Courts of King's -·
Bench and Chancery in England to issue those writs was
conferred upon the _three Supreme Courts. But c..i:ercise -
of this jurisdiction which was, established by Charters of
the British Crown, was (except a5 to British subjects and
servants of the Company) restricted. The jurisdiction did
not ordinarily extend -to the territories beyond -the Presidency towns: Ryots of Garabandho v. Zamindar of
Parlakiinedi(1). · The appellate Courts, called the Sudder
Adalats, which exercised appellate powers over the East -
India Company's Courts in the inofussil of ~he three Presidencies were not the Courts of the _ King of Erigland : -_
they were the creatures of. Regulations, and did not ad-_
minister the law· of England. These Courts _had no power_ -
to issue :l!lY of the prerogative, writs,---acept probably the
writ of habeas corpus. _But the power to superintend
the exercise of jurisdic•jon by the mofussil Courts was
found essential to the proper functioning of the Sudder- ,
Courts, and the Sudder Courts were accordingly invested
by, express legislative· enactments with authority to rectify -
orders of the mofussil Courts subordinate thereto. Bombay
;
Regulation II of 1827 of Ch. 1 s. 5 (2) authorised- the
Sudder Court at -Bombay to call , for the proceedings of
any subordinate civil court and to issue such orders
thereon_ as the case may require. ·No Regulation was
however enacted elsewhere conferring revisional jurisdic-
(i) L.R. 70 I.A • .129.
,
·--------------~---------
1963,
M.jor
S. S. KA,,,.n11
v.
-Brix.
F. J. Dillon -
SJu.A,J. _
"
19~
Maior
.>. S. Khanna
v.
Brig,
F, /.. Dillon
Shah, /,
416
SUPREME COURT REPORTS
f1964]
tion upon the Supreme Court or the Sudder Court in respect of adjudication by subordinate courts. The Code of
1859 contained no provision for the exercise of revisional
powers by the Sudder Courts, but by s. 35 of Act XXIII
of 1861 the Sudder Courts were invested with the power to
call for the record of any case decided m appeal by
the subordinate courts and in which no further appeal
lay, when it appeared that a subordinate court had exercised jurisdiction not vested in it by law. With the setting up of the High Courts in the Presidency towns of
Calcutta, Madras and Bombay power of superintendence
was conferred by s. 15 by the Charter Act (24 & 25 Viet.
Ch. 104) upon the High Courts over subordinate Courts.
By s. 622 of the Code of 1877 revisional jurisdiction of
the High Court was defined, and made exercisable in the
conditions set out in els. (a) & (b) of the present s. 115.
Clause ( c) was added by the Amending Act XII of 1879.
This jurisdiction was exercisable suo motu as well as on
application to the High Court. It was conferred in the
widest terms. The jurisdiction was supervisory and visitorial and was complementary to the powers conferred by
cl. 15 of the Charter Act, 1861, and the subsequent Constitution Acts, and was conceived in the interest of main·
taining effective control over Courts subordinate to the
High Courts. It had to be so conferred because m
the historical evolution of the powers of the diverse High
Courts supervisory jurisdiction to issue writs of certiorari,
and prohibition could not be effectively made in respect of
the mofussil Courts.
The necessity arising out of the peculiar circumstances
to invest the High Courts with the powers to rectify errors committed by subordinate Courts in the exercise of
their jurisdiction and the consequent investiture of power
are indicative of the extent of that power. The power
being one of superintendence and visitorial and vested because the supervisory jurisdiction to issue writs of certiorari and prohibition over subordinate Courts m the
mofussil could not be exercised, it would be reasonable t<>
hold that it was intended in the absence of any overriding
reasons disclosed by the statute (and none such appears
on an examination of the statute) to be analogous· with
the jurisdiction to issue the high prerogative writs and the
..
-
./
'
-
-
4 S.C.R.
'SUPREME COURT REPORTS
417
power of supervision under the Charter Act and its successor provisions in the Constitution Acts.
The expression "case" is a word of comprehensive
import : it includes civil proceedings other than suits, and
is not restricted by anything contained in the section to
the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and
not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which
the jurisdiction to issue writs, and the supervisory JUrisdiction are not subject, and may result in certain
cases in denying relief to an aggrieved litigant where it
is most needed, and may result in perpetration of gross
injustice.
It may be observed that the majority view of the
High Court of Allahabad in Buddhulal v. Mewa Ram(')
founded upon the supposition that even though the word
"case" has a wide signification the jurisdiction of the High
Court can only be invoked from an order m a suit,
where the suit and not_ a part of it is decided, proceeded
upon the fallacy that because the expression "case" includes a suit, in defining the limits of the jurisdiction conferred upon the High Court the expression "suit" should be
substituted in the section when the order sought to be
revised is an order passed in a suit. The expression "case"
includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for
equating it with a suit alone.
That is not to say that the High Court is obliged
to exercise its jurisdiction when a case is decided by a
subordinate Court and the conditions in els. (a), (b) or
( c) are satisfied. Exercise of the jurisdiction is discretionary : the High Court is not bound to interfere merely
because the conditions are satisfied.
The interlocutory
character of the order, the existence of another remedy to an
aggrieved party by way of an appeal from the ultimate
order of decree in the proceeding or by a suit, and the
general equities of the case being served by the order
made are all matters to be taken into account in considering whether the High Court, even in cases where the
conditions which attract the jurisdiction exist, should excr-
(1) I.L.R. 43 All. 564 (F.B.)
1%3
Maior
S.S. Khanna
v.
Brig.
F. f. Dillon
Shah,/.
1963
Major
S.S. Khanna
v.
Brig.
F. /. Dil/010
--·
Shah, /.
418
SUPREME COURT REPORTS
[1964]
cise its jurisdiction .
. The Subordinate Judge in the present case held by an
interlocutory order that the suit filed by Dillon for recovery of the amounts advanced to Khanna was not maintainable. That was manifestly a decision having a direct
bearing on the rights of Dillon to a decree for recovery of
the loan alleged to have been advanced by him, which
he says Khanna agreed to repay, and if the el:pression
"case" includes a part of the case, the order of the Subordinate Judge must be regarded as a "case which has
been decided".
The next question which falls to lle determined is
whether the High' Court has power to sefaslcle an order
which does not finally dispose of the suit, an(f"when from
the decree or from the final order passed in the proceeding an appeal is competent. Relying upon the use of the
expression "in which no appeal lies thereto" in s. 115 Code
of Civil Procedure it was urged that the High Court's
jurisdiction to entertain a petition in revision could be
exercised only if no appeal lay from the final order passed
in the proceeding. But once it is granted that the e.'l:-
pression "case" includes a part of a case, there is no escape
from the conclusion that revisional jurisdiction of the
High Court may be exercised irrespective of the question whether appeal lies from the ultimate decree or order
passed in tl1e suit. Any other view would impute to the
Legislature an intention to restrict the exercise of this
salutary jurisdiction to those comparatively unimportant
suits and proceedings in which the appellate jurisdiction
of the High Courts is excluded for reasons of public policy. Nor is the expression "in which no appeal lies thereto" susceptible of the interpretation that it excludes the
exercise of the revisional jurisdiction when an appeal may
be competent from the final order. The use of the word
"in" is not intended to distinguish orders passed in proceedings not subject to appeal from the final adjudication,
from those from which no appeal lies. If an appeal lies
against the adjudication directly to the High Court, or to
another Court from the decision of which an appeal
lies to the High Court, it has no power to exercise its
revisional jurisdiction, but where the decision itself is not
appealable to the High Court directly or·. Indirectly, exer-
••
..
'. ~-
4 S.C.R. \ SUPREME· COURT REPORTS
419
.
\
Cisc o£ the rcviS'ional jurisdiction by the High Cour(woiild
not be deemed excluded. ·The judgment of the Rajasthan
High Court iii· Purohit Swarupnarain v. Gopinath and
another(') on which strong reliance was placed by the
appellant does not; in our judgment, correctly interpret
s. 115 of the Code. In that case the Court relying upon
. an earlier judgment of a Division Bench Pyarchand and
others v. Dungar Singh(') held that "where it is open to
a party to raise a ground of appeal un~er. s. 105 of the Code .
£rnm the final decree _or order, with respect to any
order which has been passed during the , pendency of
a suit, it should be held that an appeal in that case lies
to the High Court within the meaning of the term 'in
which no appCal lies thereto' appearing in s. 115 Civil Procedure Code", and the exercise of revisional '.jurisdiction
of the High Court is excluded. .It was observed in that
ease that the use of the word "in" instead of the word
"from" in s. 115 Code of Civil Procedure indicated an intention that if· the order. in question was one· which
could come for consideration before the High Court in
any form in an appeal that may reach the High Court in
the suit or proceeding in which the order was passed, the ·
High Court has no revisional jurisdiction. . But the argument is wholly inconclusive, if it be granted that the word
"case" includes a ,"part of. case. Again on the footing
that the use : of the expression "in" and not "from" indicates SOfi!e . discerruole legislative intent, it IDUSt be · remembered that the word "in" has several meaningsas a preposition and · as an ad verb. The use of the preposition "from"-:-in the sense of a source or point of com- ..
mencement or distinction-would riot in the context of
the clause, yield to greater clarity,· because the relation
established thereby· would be . between "case" and appeal, and not."decided" and appeal. If the use of ~e
expression "in" is iiiappropriate to express the meaning that the orders not . appealable to the High . Court
were subject to the revisional jurisdiction; the substi-
;.
tution of "from" for "in" does not conduce to greater .
luddity: ·
·
·
In considering whether the rcvisional jurisdiction of
(1) I.L.R. [1953] Raj. 483 F.B.
{') I.L.R. [ 1953] Raj. 608.
1963.
M•ior
S. S. Khann11
....
Brir.
F. f. DiJkm
. Shah, f.
1963
Major
S.S. Khanna
VY
Brig.
F. /. Di/lgn
Shah, f.
420
SUPREME COURT REPORTS
[1964]
the High Court was intended to cover decisions, which
did not dispose of the suit or proceeding, possibility of
delay arising in the disposal of some cases bacause of investigation commenced by the High Court is not, in our
judgment, a sound ground for presuming that the jurisdiction was to be limited to thos~ matters which were
finally disposed of.
For the effective exercise of its superintending and
visitorial powers, revisional jurisdiction is conferred uppn
the High Court and it would be putting an unwarranted
restriction upon the jurisdiction of the High Court to
restrict it to those cases only where no appeal would reach
the High Court from the final order passed in the proceeding. We are therefore unable to agree with the view
which prevailed with the Rajasthan High Court that
there is a restriction placed upon the power of the High
Court in the exercise of the revisional jurisdiction as would
limit the exercise of that power only to cases where
no appeal is competent from the final order passed in the
suit or pr9ceeding.
The third question may now be dealt with. By the
order passed by the Court of First Instance on the third
issue it was held that the suit filed by Dillon was not
maintainable. That decision, in our judgment, affected the
rights and obligations of the parties directly. It was a
decision on an issue relating to the jurisdiction of the
Court to entertain the suit filed by Dillon. In any event
the decision of the Court clearly attracted cl. ( c) of s. 115
Code of Civil Procedure, for the Court in deciding that
"the suit was not maintainable as alleged in paragraphs
15, 16, 17 and 18 of the written statement" purported to
decide what in substance was an issue of fact without a
trial of the suit on evidence. Dillon alleged in his plaint
that at the request of Khanna, he had advanced diverse
loans (from the funds lying in deposit in the joint account) and that the latter had agreed to repay the loans.
The cause of action for the suit was therefore the loan
advanced in consideration of a promise to repay the
amount of the loan, and failure to repay the loan. By his
written statement Khanna had pleaded in paragraph 15
that Dillon had not advanced any money to him and that
Dillon had not claimed the amount for himself and there-
•
-
'
4 S.C.R.
SUPREME COURT REPORTS
421
fore he was not entitled to file a suit for recovery of the
amounts. By paragraph 16 he pleaded that Dillon having
admitted in the plaint that the amounts in suit were to
be paid back to the joint account he was not entitled to
file the suit. By paragraph 17 it was pleaded that a suit
J:iy one joint owner against the other joint owner for recovery of the Joint Fund or any item of the joint fund
was not maintainable and by paragraph 18 he pleaded that
Dillon could not institute a suit against him because the
amount was not repayable.
All these contentions raised substantial issues of fact which had to be decided on evidence, and Dillon could not be non-suited
on the assumption that the pleas raised were correct.
At the threshold of the trial two problems had to be
faced:
( 1) Whether in a suit to enforce an agreement to
repay an amount advanced in consideration of a
promise to repay the same, the question as to the
ownership of the fund out of which the amount
was advanced is material ; and
(2) if the answer is in the affirmative, whether the
fund in fact belonged jointly to Dillon and Khanna.
The Judge of the Court of First Instance unfortunately assumed without a trial an affirmative answer to both
these questions. Under 0. 14 r. 2, Code of Civil Procedure, where issues both of law and of fact arise in the
same suit, and the Court is of opinion that the case or any
part thereof m_ay be disposed of on the issues of law only,
it shall try those issues first, and for that purpose may, if it
thinks fit, postpone the settlement of the issues of fact
until after the issues of law have been determined. The
jurisdiction to try issues of law apart from the issues of
fact may be exercised only where in the opinion of the
Court the whole suit may be disposed of on the issues of
law alone, but the Code confers no jurisdiction upon the
Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should
be tried by the Court ; not to do so, especially when the
decision on issues even of law depend upon the decision
of issues of fact, would result in a lop-sided trial of the
suit.
1963
Major
S.S. Khanna
v.
Brig.
F. /. Dillon
Shah /.
1963
Major
S.S. Khanna
v.
Brig.
F. /. Dillon
Shah, J.
•
Hidayatullah /.
422
SUPREME COURT REPORTS
[1%4]
We are at this stage not expressing any opiillon on
the question whether the allegations made by Dillon and
Khanna are true ; we are only concerned to point out
that what was regarded as an issue of law as to maintainability of the suit could only be determined after several questions of fact in dispute between the parties
were determined.
In proceeding to decide the third issue merely on tbe pleadings and on the assumption that
the allegations made by the defendant in his written statement were true and those made by the plaintiff were not
true, and on that footing treating the joint account as of
the common ownership of the two partners, the trial
Judge acted illegally and with material irregularity in the
exercise of his jurisdiction.
The High Court was therefore right in setting aside
the order passed by the Trial Court and in holding that
without investigation as to the respective claims made by
the parties by their pleadings on the matters in dispute
the suit could not be held not maintainable. ·
The appeal therefore fails and is dismissed with costs.
There will be one hearing fee for this appeal and also C.A.
321 of 1963.
HmAYATULLAH J.-I have had the advantage of persuing the judgment of my learned brother Shah, J. I agree
with him that these appeals should be dismissed with costs,
but I propose to give my reasons in brief in a separate
judgment. The facts have been stated in detail by my
learned brother and I need not repeat them. For the purpose of my judgment I shall mention only the essential
facts.
Khanna (the appellant) and Dillon (the respondent)
entered into a partnership to do business but in February
1956, they agreed to dissolve it. A deed was drawn up and
it was agreed that Dillon was to take over all the assets
and liabilities of the partnership keeping Khanna indemnified from all liability. Later, a suit was filed for the dissolution of the partnership and rendition of accounts but
it ended in a compromise. The compromise nearly reaffirmed the terms of the earlier deed, but included a condition that all realizations of the old partnership would
be converted into cash and placed in a joint account in
the name of the two partners before being paid towards
··•
•
•
,
4 S.C.R.
SUPREME COURT REPORTS
423
liabilities of the partnership.
These appeals arise out of two suits which were filed
by Dillon against Khanna for recovery of certain amounts
aggregating to Rs. 46,000/- and interest which amounts
Khanna allegedly obtained as loan from the joint account.
Khanna countered the suits by contending that as the
money was still in the joint names of the two partners, the
suits between partners were not maintainable. This plea
led to an issue in each suit which substantially read as
follows:
"Whether the suit is not maintainable and the plaintiff is not entitled to institute as alleged in paragraphs
Nos. 15, 16, 17 and 18 of the written statement."
These issues were tried as preliminary and the decision of
the trial judge was in favour of Khanna in both the suits.
The trial Judge held that the suits were not maintainable,
but, instead of dismissing the suits there and then, he set
them down for a future date. Revision applications under
s. 115 of the Code of Civil Procedure were filed in the
High Court by Dillon and were allowed, and the present
appeals have been filed by Khanna by special leave against
the orders of the High Court.
The short question that arises in this case is whether
the High Court was right in exercising its jurisdiction
under s. 115 of the Code of Civil Procedure. Strong
reliance was placed before us upon two decisions of the
Rajasthan High Court reported in Purohit Swarupnarain
v. Gopinath and another(') and Pyarchand and others v.
Dungar Singh(') in which it was held that the jurisdiction
under s. 115 of the Code of Civil Procedure can only be
exercised in a case in which no appeal lies to the High
Court either directly or indirectly after other appeals.
It
was contended that in the present cases appeals would have
lain to the High Court directly from the decrees, because
both involved large amounts and were tried on the regular
side and that s. 115 could not be invoked. This has led
to a discussion as to the jurisdiction of the High Court
created by s. 115 of the Code of Civil Procedure.
The Trial Judge concluded that the suits were for contribution between partners of a dissolved firm which was
in the process of winding up and that not being suits for
---(') I.LR. [1953] Raj. 483 F.B.
( 2) I.LR. [1953] Raj. 608.
1963
Maior
S.S. Khanna
...
Brig.
F. /. Dillon
Hidayatullah f.
1963
Major
S.S. Khann•
v.
Brig.
F. /. Dillor.
Hidaytullah, /.
424
SUPREME COURT REPORTS
[1964]
general accounts, were not maintainable. There can be
no doubt that by this decision, if it was erroneous, the trial
Judge denied to himself a jurisdiction to try the suits.
Further it is plain that the suits, in so far as the trial judge
was concerned, were also over notwithstanding the fact
that he had fixed them on a subsequent date "for further
proceedings." The High Court was of the opinion that
the suits were plainly to recover the amounts borrowed
by Khanna from the joint account. The High Court was
right in this. Under the compromise, Dillon was required
to recover the assests, convert them into cash and put them
into a joint account not only on behalf of himself but under
a power of attorney from Khanna also on the latter's
behalf, but the cash was at the disposal of Dillon provided he applied it first in liquidation of the joint liability.
Khanna had no share in it except to see that the liabilities
were first discharged. A borrowing from this joint account
must be regarded as a loan given by Dhillon to Khanna
and the suits were, therefore, not for contribution but for
recovery of loans advanced from the joint account. Th1:
High Court was also right in holding that the trial judge
had no jurisdiction to keep the suits pending before himself for "further proceedings" when he had held them to
be not maintainable. The decision of the trial judge being
erroneous and that of the High Court right, the only question is whether the High Court properl:11-exercised its jurisdiction under s. 115 of the Code of Oivil Procedure to
correct the error.
,
Section 115 of the Code of Civil Procedure reads as
follows:
"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 of its jurisdiction so vcs- ·
ted, 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".
\ ..
•
..
•
'
•
..
4 S.C.R.
SUPREME COURT REPORTS
425
The power which this Section confers is clearly of the
nature of a proceeding on a writ of Certiorari. But it
differs from that power in many ways. Certiorari has
many different forms which may be classified as follows :
(1) Certiorari to remove 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 Record for use as evidence.
In English Common Law Certiorari to quash isrnes
in a completed case and the Common Law is now crystallised by Order 58 of the Rules of the Supreme Court. In
America Certiorari has been differently understood and is
a means of review. That arises from the Special Appellate
jurisdiction of the United States Supreme Court created by
Statute (See U.S.C.A. Tit.