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Shah, C.J.—This case has been referred to the Full Bench by Chhatpar J. and the point involved is whether the High Court exercising its revisional jurisdiction would interfere with an order of the trial Court refusing or allowing an amendment of the pleading under Order 6, Rule 17, CPC The learned Judge has, in his order of reference, referred to the decisions of the Privy Council reported in - AIR 1949 156 (Privy Council) and - AIR 1949 239 (Privy Council) , and has observed that the two decisions are not quite reconcilable and further that certain remarks in the latter decision go contrary to the earlier decisions of the Privy Council in - ''Amir Hassan Khan v. Sheo Baksh Singh 11 Ind App 237 (PC) (C), and ''Balkrishna v. Vasudeva Ayyar AIR 1917 PC 71 (D). Mention is also made of the decision of the Supreme Court reported in - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , and this reference to the Full Bench has been made in order that a workable basis may be laid down in cases of this kind stating the extent and limit of the High Court''s jurisdiction to interfere in revision. The present case is one in which the trial Court has refused an amendment of the plaint.
u/s 115, CPC the High Court has jurisdiction to revise the decision of a Subordinate Court in which no appeal lies to the High Court and where the Subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
In 11 Cal 6 (PC) (C), the Privy Council has held that if the Court had jurisdiction to decide a question which was before it and did decide it, it cannot be said, only on the ground that it has arrived at a wrong decision, that'' it exercised jurisdiction illegally, or with material irregularity. So far as can be gathered from the facts stated in the report, the questions raised in that case were, among Ors. , whether the suit was not barred under Sections 13 and 43 of Act 10 of 1877, corresponding to present Section 11 and Order 2, Rule 2, CPC
In revision the Judicial Commissioner set aside the order of the lower Courts on the ground that the trial Court had acted in exercise of its jurisdiction illegally or with material irregularity. It does not appear from the report that the Judicial Commissioner set aside the decrees of the lower Courts on the ground that the suit was barred by Sections 13 and 43 of Act 10 of 1887. The material observations, of their Lordships of the Privy Council which have been often quoted and have been the subject of interpretation by various High Courts are:
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 which was before them, and they did decide it. Whether they decided it 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 AIR 1917 PC 71 (D), which is the next case often referred to, their Lordships of the Privy Council have observed as follows:
The Section (115, Code of Civil Procedure) applies to 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.
The emphasis has been laid both in this case as in ''Amir Hassan Khan''s case (C)'', on the point of jurisdiction, and it is quite proper, having regard to the terms of Section 115, that emphasis should be laid on the point of jurisdiction. The Section empowers the High Court where the Subordinate Court has either assumed jurisdiction which it has not or has failed to exercise jurisdiction which it has, or having the jurisdiction and having exercised it the Court has acted illegally or with material irregularity. Both in 11 Cal 6 (PC) (C) and AIR 1917 PC 71 (D) the instance was one of the Court having the jurisdiction and exercising it, but exercising it either illegally or with material irregularity.
The question was again dealt with by the Privy Council in AIR 1949 156 (Privy Council) , which was also a case falling u/s 115(c). There the District Judge had held, on a construction of the will of the testator, that the temple in dispute was a private one and that the Appellants were not bound by a certain order of the Respondent. The High Court in revision set aside the judgment of the District Judge because it considered that he had made a serious mistake in construing the will and the learned Judges seemed to have thought that a serious mistake of law could be corrected in revision. They took the view that the construction put upon the will by the learned District Judge involve such material misuse of jurisdiction as to require interference by the High Court.
The Privy Council, after referring to the trend of decisions in India that Section 115 was intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts so as to prevent gross injustice in non-appealable cases, disapproved of this view and observed:
Their Lordships can see no justification for any such view; it would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) That the order of the subordinate 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 the Court has toot 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 the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law.
It will be seen that this was also a case covered by Section 115(c).
In AIR 1949 239 (Privy Council) which was decided by the Privy Council about two months after ''Venkatagiri''s case (A)'', their Lordships have again dealt with the High Court''s powers u/s 115. Incidentally, the judgment of the Board was delivered by Sir John Beaumont in both the cases. The material point in that case was whether the loan which was the basis of the suit was a commercial loan. If it was a commercial loan, the Bengal Money-lenders Act did not apply, and the applications filed by the Respondents for receiving the benefit of Sections 30 and 36 of that Act were not tenable and were liable to be dismissed. The learned Subordinate Judge held that the loan was a commercial loan within the meaning of the Act, and that such loan did not come within the terms of the Act; He therefore dismissed the application.
The High Court held, disagreeing with the learned Subordinate Judge, that the loan was not a commercial loan and therefore interfered in revision. Dealing with a preliminary objection that the High Court had no power to interfere in revision their Lordships of the Privy Council accepted the contention urged by Mr. Pringle on behalf of the Appellant that a subordinate Court does not act illegally or with material irregularity because it decides wrongly a matter within its competence, and that a Court has jurisdiction to decide a case wrongly as well as rightly.
Mr. Pringle''s contention that the subordinate Judge had the jurisdiction to decide that the loan was a commercial loan and in so doing he did not act illegally or with material irregularity and the High Court had no power to interfere in revision merely because it disagreed with its decision was also accepted, but their Lordships then pointed out that:
the learned Subordinate Judge, having held that this was a commercial loan, was bound to go on to consider what effect that decision had upon the Respondents'' application and, since that Act in terms does not apply to commercial loans, the learned Judge was bound, upon his finding, to dismiss the application without determining whether or no the Respondents brought themselves within Sections 30 and 36 of the Act as they claimed to do. In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under Sub-section (b) of Section 115.
The question of jurisdiction arose, according to their Lordships, because the finding, of the learned Judge, if it was held to be erroneous, would result in his failing to exercise a jurisdiction which he had and therefore laid his decision open to revision. Their Lordships further said:
Such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the sub-ordinate Court has acted illegally or with material irregularity so as to justify interference in revision under Sub-section (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested a case for revision arises under Sub-section (a) or Sub-section (b), and Sub-section (c) can be ignored.
Then referring to - Babu Ram and Another Vs. Munna Lal and Others, and - ''Hari Bhlkaji v. Naro Vishvanath'' 9 Bom 432 (G), in the former of which the point involved was of limitation and in the latter one of ''res judicata'', cases in which the subordinate Court by its erroneous decision (erroneous in the view of the High Court) had invested itself with a jurisdiction which in law it did not possess, their Lordships found that the High Court had wrongly held that it had no power to interfere in revision.
On the facts of ''Joy Chand''s case (B)'', their Lordships held that the question became one of jurisdiction because if the finding of the subordinate Court that it was a commercial loan was erroneous then the Subordinate Judge had the jurisdiction and he failed to exercise it. Therefore the crux of the matter, in so far as it was relevant to the facts in ''Joy Chand''s case (B)'', was not the correctness or otherwise of the finding, but its resulting in investing the Court with jurisdiction which it has not, or the Court failing to exercise jurisdiction which it has. If the finding was merely wrong, then the High Court will have no power to interfere in revision because a Court has jurisdiction to decide a case wrongly as well as rightly.
In my view there is no real conflict between the decision in ''Venkatagiri''s case (A)'', and'' the one in ''Joy Chand''s case (B)''. In the former no question of the Court assuming jurisdiction which it had not or failing to exercise jurisdiction which it ha� or exercising it illegally or with material irregularity was involved. The question involved was purely one of merits and it was therefore held that the High Court had no'' power to interfere u/s 115(c) of the Code. On the other hand, in ''Joy Chand''s case (B)'', no doubt the finding was subjected to revision, but that was because it involved a matter of jurisdiction inasmuch as if that finding was not correct then the Court was failing to exercise its jurisdiction, and the case fell within Section 115(b).
No doubt in ''Joy Chand''s case (B)'', the Privy Council has remarked that ''Babu Ram v. Munna Lal (F)'', and ''Hari Bhikaji v. Naro Vishvanath (G)'', were, wrongly decided. In ''Babu Ram''s case (F)'', the Munsiff set aside an ''ex parte'' decree and his order was impugned in revision on the ground that the application for setting aside the ''ex parte'' decree had been made beyond time under Article 164, Limitation Act. This was found to be true but the High Court declined to interfere in revision on the ground that the Munsiff''s order amounted to a decision in law that the application was within time and such a decision, even if wrong, did not fall under any of the clauses of Section 115, and further that there was no illegal or irregular exercise of jurisdiction within the meaning of Clause (c).
Even so, the rule accepted by the High Court was that an erroneous decision on a point of law not connected with the exercise of jurisdiction, would not give a right to apply in revision. In the view of their Lordships of the Privy Council, the subordinate Court''s decision, which in the opinion of the High Court was erroneous, involved a question of jurisdiction because if the application was barred by limitation then the Court had ho jurisdiction to entertain it. Similarly in ''Hari Bhikaji''s case (G)'', where the question was of ''res judicata'', the question was one investing the Court with the jurisdiction which in law it did not possess, and in that way a question of jurisdiction arose.
This view of the Privy Council in ''Joy Chand''s case (B)'', namely, where the erroneous decision results in the subordinate Court assuming jurisdiction which it has not or failing to exercise a jurisdiction which it has, is not, in my opinion, irreconcilable with the view actually taken in - ''Amir Hassan Khan''s case (C)'', because there the Judicial Committee had gone on the footing that the lower Court had acted illegally or with material irregularity; in short it was not viewed as a case covered by either Clause (a) or Clause (b) of Section 115. The same can be said of ''Balkrishna''s case (D)''. Neither Section 115(a) nor Section 115(b) was put in issue in these cases, and the observations of the Board and the actual decisions should therefore be viewed in their context and thus viewed ''Joy Chand''s case (B),'' can be reconciled with these cases.
In fact it has been conceded in ''Joy Chand''s case (B)'', that an error in a decision of a subordinate Court does not by itself involve that it has acted illegally or with material irregularity so as to justify interference under Clause (c). It is only where the erroneous decision results in the Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested, that a question of jurisdiction arises and the case falls under either Clause (a) or Clause (b), so that ''Joy Chand''s case (B)'', does recognise that a mere erroneous decision is not enough to invoke High Court''s revisional jurisdiction, unless of course it raises a question of the subordinate Court''s own jurisdiction.
In Mohammad Khan Vs. Mohammad Salim Khan, , the decisions in ''Venkatagiri''s case (A)'', and in ''Joy Chand''s case (B)'', have been considered and it was held that there was no conflict between them. In - Kally Nath Dutta Vs. Shew Bux Mohata and Another, , the decisions of the Privy Council were reviewed and the position was stated thus:
In our opinion, it cannot be said that in the last two decisions, the Judicial Committee has differed from the view which was taken in the early case in 11 Ind App 237 (PC) (C),viz., that a mere error of law which has no reference to the question of jurisdiction is not by itself sufficient to entitle this Court to interfere in revision. In our opinion only in those cases where in the exercise of jurisdiction the Court acts illegally or with material irregularity that this Court can interfere u/s 115(c), Code of Civil Procedure, a mere error of law not involving the jurisdiction of the Court is not enough.
In Lingangouda Marigouda Vs. Lingangouda Fakirgouda and Others, , Chagla C.J. has felt the difficulty of reconciling the two decisions, but he has not expressed any opinion on the point.
So far as the Clauses (a) and (b) of Section 115 are concerned, there is no real difficulty in their application and the High Court will have the revisional jurisdiction, where the subordinate Court either assumes jurisdiction which it has not or fails to exercise a jurisdiction which it has, in either of which cases the question becomes one of the subordinate Court''s jurisdiction; or, as has been put in ''Venkatagiri''s case (A)'', Section 115 empowers the High Court to satisfy itself (a) that the order of the subordinate Court is within its jurisdiction, and (b) that the case is one in which the Court ought to exercise jurisdiction. Therefore where the Court by a wrong or erroneous finding assumes jurisdiction which it has not, or refuses to exercise a jurisdiction which it ought to exercise, then the matter becomes revisable by the High Court.
The difficulty however arises when one comes to Clause (c). There the Court does have the jurisdiction and is exercising it, but in doing so it acts either illegally or with material irregularity. The question arises when can a Court be said to be acting illegally as distinguished from committing an error of law and when again can it be said that the Court has acted with material irregularity. As has been stated in ''Venkatagiri''s case (A)'', acting illegally means acting in breach of some provision of law and acting with material irregularity means by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. So far as this latter is concerned, there is no real difficulty because it is purely a question of procedure, and if the error affects the ultimate decision it becomes a material irregularity and gives scope for the High Court''s revisional powers.
In Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , the Supreme Court has referred to the Privy Council decisions in ''Amir Hassan Khan v. Sheo Baksh Singh (C)''; ''Balkrishna v. Vasudeva Ayyar (D)''; ''Venkatagiri v. H.R.E. Board Madras (A)'', and ''Joy Chand v. Kamalaksha (B) and it may be observed incidentally that it has not noticed any particular conflict between the two latter cases, nor again between ''Joy Chand''s case (B)'', and the two earlier cases. That was also a case relating to the question of the subordinate Court acting with material irregularity. His Lordship Mahajan J. who delivered the judgment of the Court, has, with apparent approval, referred to certain observations of Bose J. in his order of reference in - AIR 1948 258 (Nagpur) . The material observations are at para 31 of the report where Bose J. has observed:
the words "illegally" and "material irregularity", do'' not cover either errors of fact or of law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been duly complied with both in letter and in spirit.
These observations lend themselves to the view that the defects or the errors are procedural and not of merits, either on points of fact or of law. So far as the word "illegally" is concerned this view appears not to be in accord with the view of the Privy Council in ''Venkatagiri''s case (A)'', where "illegally" is stated to mean in breach of some provisions of law, unless of course a decision arrived at in breach of some provision of law can be treated as acting in ah illegal manner, that is to say, the manner in which the decision is reached is illegal.
However such a construction is, permissible because when a Court proceeds in breach of definite provisions of law, it does act illegally and it is not a mere conclusion of law. Pollock J. has observed in his judgment in ''Narayan Sonaji''s case (K)'', that it is impossible to define what is meant by "illegally" or with "material irregularity", and this was also recognised by Bose J. himself. I would not attempt to venture on any definition of these words and will content myself with agreeing with Justice Pollock''s view that there may be an illegality or material irregularity if the Court acts in obvious disregard of some statutory enactment or some well established principle, because that might amount to an error of procedure and not merely an error of law. Beyond this it is neither possible nor necessary to say. The subject does not admit of any hard and fast rule, and the decision of each case must depend on its particular facts.
There has been some divergence of opinion between the High Courts on the question whether an order, allowing. or refusing an amendment of the pleadings is open to revision, and the Allahabad High Court has, in - Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, , taken the view that such an order is not open to revision, on the ground that the order is not a ''case'' decided within the meaning of Section 115. On the other hand the Nagpur High Court has held in - ''Liladhar v. Firm Radha- kishan Ramsahaya AIR 1946 Nag 5 (M), that revision lies against an order refusing an amendment of a pleading. The Lahore High Court has held in - ''Gurdevi Bibi v. Md. Bakhsh AIR 1943 Lah 65 (FB) (N), that the word ''case'' in Section 115 is wide enough to include interlocutory orders passed in a suit, and this view has been, followed by the Pepsu High Court in - ''Bakhshi v. Naraina AIR 1952 Pepsu 33 (O) and by the Rajasthan High Court in - Shree Narain Vs. Kishanlal and Others, . The other High Courts too have taken the view that the word ''case'' is wide enough to include an interlocutory order, and that the High Court has the" power to interfere in revision with such orders.
The general trend of the decisions therefore is that interlocutory orders are revisable by the High Court u/s 115, Code of Civil Procedure, and in agreement with this, view I hold that an order refusing an amendment of a pleading is revisable by the High Court. The principles by which an amendment should either be allowed or refused are well settled, and, so far as is material to the present case, one principle is that an amendment would be refused if it introduces a totally different, new, and inconsistent case or completely alters the cause of action. Again, where a Plaintiff sues on a specific title, he may not be allowed to amend the plaint so as to base it on a different title and even where the title remains unaltered, if the amendment completely alters the cause of action then it will not be allowed.
The parties here are descended from a common ancestor Hariprasad Santoshram, and the Plaintiff''s case as stated in para 3 of the plaint is that there was a partition between the Plaintiff''s branch and the Defendant''s branches on 15-12-1901, whereby certain property had been divided and that certain other properties stated in Schedule 9 to the deed of partition were kept joint. The Plaintiff alleged that new lands had been purchased from the income of these joint lands and that all these properties are still joint between the parties. Paragraph 4 of the plaint, which is one of the paragraphs sought to be. amended, is that Hariprasad had made a will treating certain property as his exclusive property though they were joint ancestral lands, that a probate of the will was obtained, that, in accordance with the will, rupees five and a quarter lacs and Anr. sum of Rs. 25,000/- were not to be divided, and that the Defendants Nos. 1 and 2 are managing the said sum and are in possession of the interest accruing on it.
The Plaintiff further alleged that the property being ancestral Hariprasad had no right to make a will in respect of the same and the will was null and void under the Hindu Law, and consequently the said property, meaning the abovesaid sums, should be divided between the parties, and the Plaintiff be awarded his one-twelfth share therein. By the amendment the Plaintiff now admits Hariprasad''s competence to make the will and the validity of the will itself and complains that the executors have not rendered accounts, and he therefore asks that the interest accrued on the said aggregate sum of rupees five and a half lacs should be divided between the parties and the Plaintiff awarded his one-twelfth share therein.
Paragraph 5 of the plaint states that the joint property of the parties is being managed by Defendants Nos. 1 and 2 and that they have purchased fresh properties from the income thereof and that they were refusing'' to render accounts. By the amendment it is alleged that the Defendants are fraudulently refusing to render the accounts. In para 7 it was specifically stated that the suit was for a division of the sums of rupees five lacs and a quarter and Rs. 25,000/- and the interest accrued on them. By the amendment the Plaintiff seeks a division of the interest only and also an account thereof.
Whereas by Clause (d) of para 11 of the plaint the corpus of these two sums was sought to be divided on the ground that the will was invalid, by the amendment the Plaintiff now seeks an account of the management of the property by the Defendants as executors of the will and for a division of the interest accrued on these sums.
In substance therefore whereas the suit originally was in denial of the will altogether and on the footing that the property which was the subject of the will, namely, the aggregate sum of rupees five and a half lacs, was liable to be divided between the parties and should be divided, the Plaintiff now admits, the validity of the will and seeks relief as a beneficiary under the will in respect of the interest on the two sums and against Defendants Nos. 1 and 2 executors of the will. The case sought to be 4 replaced is thus altogether different, new and inconsistent with the case originally made, because whereas formerly the will itself was being disputed, the will is now admitted and a relief is sought under it. The legal relation too is changed because whereas originally Defendants Nos. 1 and 2 were sued as co-owners of the property, they are now sued as executors of the will, the Plaintiff seeking the relief as a beneficiary. The cause of action too is altogether changed. In the circumstances the trial Court was right in refusing such an amendment.
Mr. Bakshi has relied on ''Teja Singh v. Hamir Singh'' AIR 1952 Pepsu 31 (Q), but there the facts were different, and the amendment was only meant to give a right description of the property by calling it ancestral. No question of altering the character of the property arose and the amendment was therefore allowed. In - Union of India(UOI) Vs. Shalimar Tar Products (1935) Ltd., , also cited by Mr. Bakshi, the facts again were different. The Union of India, the Defendant in the case, had denied the claim originally on the ground that there was no negligence on the part of the railway administration, and one of the grounds of the amendment sought was that the Plaintiff company had no legal title or right over the laboratory and other buildings attached thereto and apparatus, plants etc. No new or inconsistent case was alleged and the case was therefore eminently one for allowing the amendment instead of refusing it.
In - Manindra Kumar Bose Vs. Santi Rani Biswas and Others, , revision was allowed because it was erroneously held by the trial Court that the application, which was virtually an application for amendment, was barred under Article 177, Limitation Act. The lower Court had misconceived the entire position in the case and has failed to exercise the jurisdiction vested in it, and Section 115 was therefore held to apply. This case is therefore distinguishable on the facts.
In - ''Chiranji Lal v. Ram Kanwar AIR 1948 E.P. 26 (T), which has been relied upon for the opponents, it was held that it was not desirable or proper to convert a suit to set aside a partition decree, into a suit based on recognition of the validity of that decree and for a relief flowing from and arising out of that decree, and the Plaintiff was not allowed to amend. This decision is pertinent to the facts herein as much as whereas originally the validity of the will was disputed, by the amendment the Plaintiff recognises the validity of the will and seeks a relief under the will itself, a position which is altogether inconsistent with the original case. The facts on which the amendment is sought in the present case were known to the Plaintiff and no new facts have come to his knowledge.
It was held in - Bhagavatula Gopalakrishnamurthi and Others Vs. Dhulipalla Sreedhara Rao and Another, , that if by reason of the subsequent events certain rights accrue to the Plaintiff, the amendment is permissible, but where the Plaintiff seeks to make out a new case on the facts which were known to him and were available, an amendment should not be allowed, and this decision too is thus an authority for refusing the amendment in the present case.
Reference may also be made to ''Damodar Madhowji v. ''Purmanandas Jeewandas 7 Bom 155 (V). It was no doubt a case u/s 53 of the old Code of Civil Procedure, but the proviso to that Section stated that the plaint shall not be amended so as to convert the suit of one character into a suit of Anr. and inconsistent character, and in this respect the decision becomes applicable to the present case. There the Plaintiff claiming as the heir of his uncle sued the executors of his Uncle''s widow for possession of the property left by the widow alleging that the same belonged to the estate of his uncle and the widow had no power to dispose of it by a will. An amendment of the plaint was sought at the hearing of the case by inserting a clause that even if the will was valid it did not dispose of the whole of the property, and he was entitled to the residue as his uncle''s heir. It was refused on the ground that the case made by the proposed amendment was inconsistent with the original case. It would also appear that the cause of action too would be completely altered. The facts here are similar and the amendment if allowed, will introduce an altogether new and inconsistent case. It also alters the cause of action and changes the legal relation between the parties. The trial Court was therefore right in refusing the amendment. This application accordingly fails and is dismissed with costs.
CHHATPAR J.
This revision application is to revise an order of the subordinate Court refusing permission to amend the plaint in the suit filed by the applicant. The matter came before me sitting as a single Judge Bench. A preliminary objection was raised as to the competency of the High Court to interfere in revision u/s 115, CPC in view of the recent pronouncements of the Privy Council and the Supreme Court. As similar other matters were pending involving the same question, I referred the cases to the Full Bench for decision.
Section 115 reads as under:
(After quoting Section 115 His Lordship continues as under:)
As far back as in 1884 the Privy Council in 11 Cal 6 (PC) (C), observed on Section 622 of the former CPC , which was replaced by Section 115 of the present Code:
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 case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.
In 1917 their Lordships of the Privy Council in AIR 1917 PC 71 (D). observed:
It will be observed that the section applies to 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.
The meaning of the word jurisdiction is given in Halsbury''s Laws of England (Hailsham Edition) Vol. 8, Article 1176, p. 531, in the following, terms:
By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission, under which the Court is constituted, and may be extended or restricted by the like means. If no restriction or limits is imposed the jurisdiction is said to be unlimited.
In ''Hriday Nath Roy v. Ram Chandra AIR 1921 Cal 34 (W) which came before the Full Bench of the Calcutta High Court, Mookerji, Acting'', C.J., at pages 36-37 amplified this conception of jurisdiction as under:
it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term "jurisdiction", which has been stated to be "the power to hear and determine issues of law and fact"; "the authority by which the judicial officers take cognisance of and decide causes"; "the authority to hear and decide a legal controversy", "the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them"; "the power to hear, determine and pronounce judgment on the issues before the Court", "the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect"; "the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution". (Reference may in this, connection be made to the discussion of the nature of jurisdiction in the judgment of this Court in - ''Ashutosh v. Behr Lal 35 Cal 61 (FB) (W1) and- ''Gurdeo v. Chandrikah 36 Cal 193 (W2). This jurisdiction of, the Court may be qualified or restricted by a variety of circumstances.
Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject-matter. The power of a tribunal may be exercised within defined territorial limits. Its cognisance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction for fundamentally different are the consequences of failure to comply with statutory requirements in the Assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what'' makes up jurisdiction; and when there is jurisdiction of the person and subject-matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of reference in - ''Sukhlal v. Tarachand 33 Cal 68 (X) and - ''Khosh. Mahomed v. Nazir Mahomed 33 Cal 352 (Y); see also the observation of Lord Parker in - ''Raghunath v. Sundar Das AIR 1914 PC 129 (Z). But the distinction between the existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion. See - ''Mabulla v. Hemangini 6 Ind Cas 629 (Cal) (ZI) and - ''Moser v. Marsden 1892 1 Ch 487 (Z2) where the term jurisdiction is used to denote the authority of the Court to make an order of a particular description. We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by a Court without jurisdiction is void, subject to the well-known reservation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it Has no jurisdiction to deal with the matter brought before it: - ''Rashmoni Dasi v. Gunada Sundari Dasi AIR 1914 Cal 42 (Z3).
Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. As an authority for this proposition reference may be made to the celebrated dictum of Lord Hobhouse in - ''Malkarjun v. Narhari 25 Bom 337 (PC) (Z4): "A Court has jurisdiction to decide wrong, as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed." Lord Hobhouse then added that though it was true that the Court made a sad mistake in following the procedure adopted, still in so doing the Court was exercising its jurisdiction; and to treat such an error as destroying the jurisdiction of the Court was calculated to introduce great confusion into the administration of the law. The view that jurisdiction is entirely independent of the manner of its exercise, and involves the power to decide either way upon the facts presented to the Court, is manifestly well founded on principle and has been recognised and applied elsewhere: ''Ex parte Watkins (1883) 7 Peter 568 (Z5) and - ''Harran v. Dater (1886) 120 US 468 (Z6). There is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous action of such Court in the exercise of that jurisdiction. The former involves the power to act all, while the latter involves the authority to act in the particular way in which the Court does act.
When Clauses (a) and (b) of Section 115, CPC refer to exercising a jurisdiction not vested in it by law or having failed to exercise a jurisdiction so vested, they mean the Court coming to the decision that it has jurisdiction and therefore exercises it when in fact it has not or the Court has not jurisdiction and therefore it refuses to exercise it, when in fact it has jurisdiction and should exercise it. Both alternatives contemplate a decision as to the existence or non-existence of jurisdiction in the sense discussed above. The third Clause (c) of Section 115 relates to the exercise of this jurisdiction or authority. It contemplates cases in which the Court has acted illegally in the exercise of its authority or with material irregularity. Both these parts of Clause (c) assume that the Court has jurisdiction but has acted illegally or with material irregularity.
Now what is meant by acting illegally in the exercise of jurisdiction or acting with material irregularity? In AIR 1949 156 (Privy Council) , the Privy Council interpreted the words ''acting illegally'' as acting in breach of some provision of law and the words ''material irregularity'' as committing some error of procedure in the course of a trial which is material in that it may have affected the ultimate decision. Their Lordships of the Privy Council drew a distinction between a mere erroneous decision of law or fact however'' gross or palpable it may be and a decision which involves acting illegally in the exercise of jurisdiction. The words ''material irregularity'' have been related to errors in procedure which affect the ultimate decision of the case. There is no difficulty as to the interpretation of this part pf Clause (c).
In ''Venkatagiri''s case (A)'', the High Court had upset a decision of the District Judge holding that a particular temple was private and therefore the Madras Hindu Religious Endowments Act, 1926, was not applicable. The Judges of the High Court considered that the District Judge had made a serious mistake in the construction placed upon the will of the testator and they seem to have thought that a serious error of law could be corrected in revision. Their Lordships, of the Privy Council set aside the decision of the High Court observing that they saw no justification for any such view; it would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. They therefore laid down the interpretation of Section 115 saying that the High Court has to satisfy itself upon three matters:
(a) That the order of the subordinate 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 the Court has not acted illegally i.e. in breach of some provision of law, or with material irregularity i.e. by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.
If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however, profoundly from the conclusions, of the subordinate Court upon questions of fact or law. There can be no justification whatever for the view that Section 115(c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Court could be measured.
Shortly thereafter the case in AIR 1949 239 (Privy Council) came before the Privy Council, wherein their Lordships again interpreted Clauses (a), (b) and (c) of Section 115, CPC but made no reference to the prior case. The question in that case was whether a loan which was the subjects matter of the dispute was a commercial loan or not. If the loan was not a commercial loan, the Bengal Money-lenders Act was applicable, which gave cretain benefits to the judgment-debtor. The trial Court held that this was a commercial loan and therefore the Act did not apply and dismissed the application of the debtor. The Court further considered whether the suit in which the application was made was a suit to which the Act applied within the definition and. came to the conclusion that it was. In revision before the High Court, the latter held disagreeing with the trial Court that the loan was not a commercial loan and therefore it was subject to the provisions of the Act and consequently the order of the trial Court was set aside and the case remanded in order that the decree might be re-opened in accordance with the direction of the Court.
When the matter came before the Privy Council it was contended that the power to decide whether the loan was commercial or not was within the jurisdiction of the trial Court and even if the decision was wrong, it was not revisable u/s 115; but this objection was overruled. Their Lordships observed:
A subordinate Court does not act illegally or with material irregularity because it decides, wrongly a matter within its competence. A Court has jurisdiction to decide a case wrongly as well as rightly. Mr. Pringle maintained that the learned Subordinate Judge had jurisdiction to decide that the loan was a commercial loan, and in so doing he did not act illegally or with material irregularity, and the High Court had no power to interfere in revision merely because it disagreed with his decision. So far Mr. Pringle is on safe ground, but the learned Subordinate Judge, having held that this was a commercial loan, was bound to go on to consider what effect that decision had upon the Respondents'' application, and, since the Act in terms does not apply to commercial loans, the learned Judge was bound, upon his finding, to dismiss the application without determining whether or no the Respondents brought themselves, within Sections 30 and 36 of the Act as they claimed to do. In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under Sub-section (b), Section 115.
There have been a very large number of decisions of Indian High Courts on Section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under Sub-section (c) nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested, a case for revision arises under, Sub-section (a) or Sub-section (b), and Sub-section (c) can be ignored. The cases of - Babu Ram and Another Vs. Munna Lal and Others, '', may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess, and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result. In the present case their Lordships are of the opinion that the High Court, upon the view which it took that loan was not a commercial loan, had power into interfere in revision under Sub-section (b) of Section 115.
The Allahabad High Court has endeavoured to reconcile the two decisions by the Privy Council in - Mohammad Khan Vs. Mohammad Salim Khan, , and my Lord the Chief Justice has very laudably attempted to explain the import of these and prior Privy Council rulings and how they can be harmonised. I deeply regret that I am unable to agree with him. In my humble opinion the difficulty arises'' in not keeping the question of the existence or non-existence of jurisdiction in the sense explained by Mookerji Acting C. J. in the passage above reproduced distinct from the exercise of jurisdiction. Clauses (a) and (b) of Section 115 deal with the existence or non-existence of jurisdiction as interpreted by the Privy Council in - ''Venkatagiri''s- case (A)'', and Clause (c) with the exercise of it. In practice the distinction is sometimes lost. A judge may say "I have no jurisdiction in this case to grant specific performance of a contract but only damages as the latter is the appropriate remedy". But what he really means is that although he has power to grant either specific performance or damages as he has jurisdiction to try the suit, he cannot give the relief of specific performance, as under the Act damages would be the appropriate remedy. But if question arises whether the Court was competent to try the suit, it would affect the jurisdiction itself apart from the merits of the case.
If the question of jurisdiction depends upon the residence of the Defendants within the territorial limits of the Court, the fact of residence becomes a jurisdictional fact which could be revised under Clauses (a) and (b) of Section 115 by the High Court. Or the question may be one of law as to the interpretation of the statute giving jurisdiction to the Court e.g., whether a Small Causes Court can try a suit of such and such nature. The decision will be on a jurisdictional point of law which would also be revisable under Clauses (a) and (b) of Section 115. In both - ''Venkatagiri and Joy Chand''s cases, (A) and (B)'', the questions of fact whether the temple was private or the loan was commercial were not jurisdictional facts on which rested the power of Court to take cognisance of the case. They were questions to be decided in the exercise of jurisdiction. The mere fact that on the decision of these issues depended the further exercise of jurisdiction under the respective acts did not take them out of the category of decisions in the exercise of jurisdiction to that of assumption or non- assumption of jurisdiction to attract the applicability of Clauses (a) or (b) of the Section.
So with all humility I would restrict the scope of the Privy Council decision in ''Joy Chand''s case (B)'', strictly within the limits of the facts of that case. Questions of limitation or ''res judicata'' in my humble opinion may fall within the Clause (c) of Section 115. They are not jurisdictional questions. Being1 express and peremptory provisions of law, their disregard might legitimately be considered as illegal exercise of jurisdiction under Clause (c) of the Section, which can be corrected by the High Court in revision. The other remarks of the Privy Council in ''Joy Chand''s case (B)'', relating to the Bombay and Allahabad decisions can thus be justified. The real difficulty arises when we try to interpret the Clause (c) of the Section.
The two cases of the Privy Council have been referred to by the Supreme Court in the recent case in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, . That was a case where the subordinate Court in the exercise of its inherent powers and without notice to the other side had restored an execution application dismissed erroneously. The High Court set aside the decision acting u/s 115, CPC and then the matter came before the Supreme Court. Their Lordships of the Supreme Court set aside the decision of the High Court observing:
All that happened was that he (the Judge of the trial Court) felt that he had committed an error in dismissing the main execution while; he was merely dealing, with an adjournment; application. It cannot be said that his omission in not taking into consideration what the decree-holder''s pleader would have done had he been given the opportunity to make his sub-mission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment- debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated the 25th April 1945, and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.
The Supreme Court however in the earlier part of their judgment referred to the observations of Bose J. in his order of reference in AIR 1948 258 (Nagpur) , wherein it is said that the words ''illegality'' and ''Material irregularity'' do not cover either errors of fact or law; they do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. This passage appears to have been bodily lifted from the order of reference by Bose J. The decision of the Supreme Court was that there was no material irregularity in the exercise of jurisdiction. The observations of Bose J., no doubt seem to interpret the entire Clause (c) which is in two parts, first relating to ''acting illegally'' and second ''acting with material irregularity'' as relating to material defects of procedure.
The Privy Council in ''Venkatagiri''s case (A)'', however do not place any limitation on the words ''acting illegally'' confining its scope to material defects of procedure; the interpretation given to ''acting illegally'' is acting in breach of some provision of law, which may not necessarily be relating to procedure. The second part i.e. the words ''with material irregularity'' has alone been interpreted as relating to procedural defects in arriving at a decision. Did the Supreme Court intend to alter the law and set at rest finally the different shades of opinion which have verged round Clause (c) of the Section? A reference to '' Chitaley and Rao''s CPC Note 12 on Section 115 will show the numerous instances where High Courts have interfered in revision under this clause.
The actual decision in the Supreme Court case rested on a question falling under the second part of Clause (c) relating to material irregularity in procedure as is apparent from the passage of the judgment cited above. But their Lordships have '' reproduced the opinion of Bose J., in the judgment. If it is a mere quotation without full adoption of the interpretation of Clause (c), it would be open to the High Court to interfere in revision in matters where the illegality in the exercise of jurisdiction is not confined to procedure under the authority of the two Privy Council rulings. On the other hand if their Lordships of the Supreme Court intended fully to endorse the remark of Bose J., it would mean curtailment of the powers of the High Court to a very large extent. The High Court would be entitled to interfere only where there is an error in the procedure or in the ''manner'' or ''mode'' of arriving at a decision and not where there is an error of law or fact in the mental process of deciding the question at issue. The point is of utmost importance in practice. The Privy Council in ''Venkatagiri and Joy Chand''s cases (A) and (B)'', did not lay down this narrow scope of Section 115. These cases were referred to by their Lordships of the Supreme Court and if they had intended to finally clarify the ambit of the section we would have expected a fuller discussion and a definite authoritative decision. The point involved in the case before them fell within the latter part of Clause (c) of the Section and their remarks if embracing the clause as a whole would be obiter though entitled to the greatest respect.
In my humble opinion taking into consideration the two Privy Council rulings and the numerous High Court rulings before this decision of the Supreme Court and even after, I am inclined to hold that the Supreme Court did not intend to put the narrow interpretation on Clause (c) confining its application to defects in procedure alone and it would still be open to the High Court to interfere in revision with decisions involving ''illegality'' as distinguished from ''mere errors of law or fact". It is almost impossible to lay down definitely what cases will all in the first or the second category, ''illegality'' has not been defined anywhere so far as know. I will rest content with the meaning given in ''Venkatagiri''s case (A)'', as something "in breach of some provision of law".
So far as the present case is concerned, I agree with the conclusion of the learned Chief Justice that the order of the lower Court refusing amendment was not improper and would therefore dismiss this revision application with costs.
BAXI J.
The conditions for the exercise of the High Court''s revisional jurisdiction are laid down in Section 115, CPC The first part of Section prescribes that the order of .the subordinate Court should be a case decided and no appeal should lie against it. If these conditions are satisfied, the High Court may call for the record of the case but the High Court''s jurisdiction to interfere with the lower Court''s order is circumscribed by Clauses (a), (b) and (c) and can be exercised only in those cases in which in passing the order complained against the subordinate Court illegally assumed jurisdiction or refused to exercise jurisdiction or though acting within its jurisdiction, it acted illegally or with material irregularity.
The scope and ambit of the High Court''s jurisdiction under these clauses have been the subject of many Privy Council decisions which have been discussed at length by my learned Chief Justice and my learned brother Chhatpar J. and I do not propose to reiterate what has been already stated. I shall therefore content myself with quoting their Lordships of the Privy Council from AIR 1917 PC 71 (D):
It will be observed that the section applies to 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.
In AIR 1949 156 (Privy Council) , their Lordships expressed themselves in the following terms:
Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters: (a) That the order of the subordinate 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 the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law.
The jurisdiction of the High Court to interfere with an order of the subordinate Courts u/s 115 is thus confined to correcting errors of jurisdiction i.e. to cases of illegal assumption of jurisdiction or refusal to exercise jurisdiction or to cases in which the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. But it does not extend to correcting conclusions of law or fact, however erroneous they might be provided that such errors do not bring the order complained against within the ambit of the Clauses (a), (b) or (c) of Section 115.
The concept of jurisdiction has been discussed at length by Mukerjee Acting C.J. in AIR 1921 Cal 34 (W) and his observations have been quoted by my learned brother Chhatpar J. I have nothing to add to what has been stated by the learned Acting C.J.
Now the Court trying a suit has to decide in the first instance whether the conditions which give it jurisdiction exist or not or in other words it has to decide whether it has jurisdiction or not. In determining this question it has to decide questions of fact or construe the provisions of a legal enactment and upon a true decision of these facts or law its jurisdiction to try the suit depends. If the Court erroneously decided them and thereby either assumes jurisdiction which it does not possess or declines to exercise jurisdiction, a case for interference under Clause (a) or (b) of Section 115 arises. In such cases the question whether it acted illegally or with material irregularity does not arise and Clause (c) need not be considered.
The question however is what are these jurisdictional facts or points of law an erroneous decision on which is regarded as illegal assumption of jurisdiction or refusal to exercise it so as to attract the operation of Clause (a) or (b) of Sections 115. It is clear that facts or points of law upon which the initial competence of the Court depends such as residence or the value or the nature of the subject-matter are such facts and they can be corrected in revision. But when there is no question about the initial competence of the Court, to try the suit but the trial of the suit is barred by law such as ''res judicata'' or limitation and the subordinate Court tries the suit or refuses to do so on an erroneous view of such law is the High Court entitled to revise the decision under Clause (a) or (b) on the ground that its decision resulted in illegal assumption or refusal to exercise jurisdiction? Or can it not be said that the Court having jurisdiction to try the suit and having decided the question of ''res judicata'' or limitation in the exercise of its jurisdiction, its decision cannot be revised unless it can be shown that in arriving at that decision it acted illegally or with material irregularity in the exercise of its jurisdiction? My learned brother Chhatpar J. is of the view that such errors properly speaking are not errors of jurisdiction but being in contravention of mandatory provisions of law, they may legitimately be considered as relating to an illegal exercise of jurisdiction and may be revised- under Clause (c) of Section 115. This view, if I may say so with respect has great force.
In 11 Cal 6 (C) the Privy Council refused to interfere with the. decision of the subordinate Court involving a decision under Sections 13 and 43 of Act 10 of 1877 corresponding to Section 11 and Order 2, Rule 2 of the present CPC The ratio of the decision was that if the Court has jurisdiction to decide a question before it and did decide it, it could not be said that in arriving at a wrong decision it exercised its jurisdiction illegally or with material irregularity. This decision was referred to and followed in 9 Bom 432 (G). In the Bombay case the question turned upon the High Court''s power to revise an erroneous decision on the point of ''res judicata''.
I may also refer to Babu Ram and Another Vs. Munna Lal and Others, which turned upon the High Court''s power to revise an erroneous decision on a point of limitation. Regarded in the light of illegal or irregular exercise of jurisdiction an erroneous decision on a point of ''res judicata'' or limitation may be open to correction only under Clause (c) of Section 115, but I venture to think that in view of the latest Privy Council decision in AIR 1949 239 (Privy Council) though an erroneous decision on these points may by itself not amount to illegal or irregular exercise of jurisdiction it can be regarded in a proper case as an instance of illegal assumption of jurisdiction or refusal to exercise it and may be revised under Clauses (a) and (b) of Section 115 and Clause (c) may be ignored. The relevant observations of their Lordships may be quoted here with'' advantage:
There have been a very large number of decisions of Indian High Courts dh Section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court'' has acted illegally or with material irregularity so as to justify interference in revision under Sub-section (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b) and Sub-section (c) can be ignored.
Their Lordships then referred to 9 Bom 432 (G) and Babu Ram and Another Vs. Munna Lal and Others, and expressed their disapproval. Having regard to the context in which these decisions are referred to, I venture. to think that their Lordships were of the opinion that though the Court may otherwise be competent to try a suit and all the conditions relating to the territorial and pecuniary limits of its jurisdiction as well as the nature of the subject- matter are fulfilled, even then an error of law which bars the trial of the suit may well amount to either illegal assumption of jurisdiction or illegal refusal to exercise it.
If the errors of jurisdiction, which attract the application'' of Clause (c) or (b) of Section 115, are to be confined, to those jurisdictional facts or points of law which determine the initial competence of the Court such as residence etc. there may be difficulty in reconciling the decisions in ''Venkatagiri''s case (A)'', and ''Joy Chand''s case (B) But in ''Venkatagiri''s case. (A)'', there was no question of the District Judge not having jurisdiction to construe the will. The question whether in arriving at that decision he committed an error of jurisdiction was not canvassed before the High Court or the Privy Council and the High Court had proceeded to correct the District Judge''s decision on the ground that the erroneous construction of the will amounted to an illegal exercise of the jurisdiction which would justify the High Court''s interference tinder Section 115(c). In ''Joy Chand''s case (B)'', however the Subordinate Judge erroneously construed a certain bond and held that the transaction was a commercial loan and the applicant was not entitled to reliefs under the Bengal Moneylenders'' Act and upon this erroneous view of the transaction he refused to grant the reliefs. The erroneous construction by the Subordinate Judge of the bond was held to result in his refusing to exercise jurisdiction;" These decisions were thus taken from different standpoints altogether and looking at the grounds of the decisions I venture to think that there is no conflict in principle between them.
It must however be admitted that when the decision complained against relates to a question of law which bars the trial of a suit, there may be difficulty in deciding whether an erroneous decision amounts merely to an error of law liable to revision under Clause (c) of Section 115 only within the principle of ''Venkatagiri''s case (A)'', or whether it leads to illegal assumption of jurisdiction or refusal to exercise jurisdiction and comes within the principle of ''Joy Chand''s case (B)''. Ail that can be said about it is that every case is to be determined on its own facts and that such errors are not necessarily revisable under Clause (c) only but in a proper case they would amount to errors of jurisdiction so as to attract the application of Clauses (a) or (b). The difficulty is however increased manifold when the subordinate Court''s order is impugned on the ground that in passing the order it acted illegally or with material irregularity in the exercise of its jurisdiction.
The difficulty arises in construing the words "acted illegally or with material irregularity" appearing in the Clause (c) of Section 115. In ''Venkatagiri''s case (A)'', the expression the Court having "acted illegally" has been construed as haying acted in breach of some provision of law and the expression "acted with material irregularity" has been construed as having committed some error in the course of the trial in that it may affect the ultimate decision. Where the order complained against is sought to be set aside on the '' ground that the subordinate Court acted with material irregularity the case does not present great difficulty. But in construing the expression "acted illegally" as having acted in breach of some provision of law did the Privy Council intend to lay down that the subordinate Court should have acted in breach of a procedural law only or in breach of provision of other law also. On this point I agree with respect with the view of my Lord the Chief Justice that there may be an illegality or material irregularity if the Court acts in obvious disregard of some statutory enactment or some well-established principle of law. The subject does not admit of any hard and fast rule and each case has to be decided on its own facts.
I may lastly observe that though an error on a jurisdictional fact or law which bars the trial of the suit might well be corrected under Clause (a) or (b), an error of law which does not affect the competence of the Court or which does not bar the trial can be corrected under Clause (c) only. An order refusing permission to amend the plaint therefore can be revised under Clause (c).
On the merits of the present revision I agree that it should be dismissed.