Vora Harbhai Tuljashanker vs Gokuldas Purshottam and Others

Baxi, J.—This revision is preferred against the order of the Civil Judge, Senior Division, Junagadh, holding that 3 khatas tendered by the applicant in his deposition in Suit No. 152 of 1949 were inadmissible in evidence.

It appears from the Petitioner''s application to this Court for stay of the suit in the trial Court that the Plaintiff-opponent 1 filed a suit against opponent 2 on the strength of a mortgage. It appears that after the institution of the suit the Petitioner intervened and applied to be made a party-Defendant claiming to be an equitable mortgagee of the property in question and claiming priority over opponent 1. He was accordingly joined as a Defendant in the suit and issues were thereafter framed. He was examined as a witness and tendered the above khatas in his deposition which have been rejected by the learned trial Judge. These khatas have not been registered.

One of the khatas was for Rs. 20,000/ - in respect of money lent by the Petitioner''s father to opponent 2. This khata was rejected as inadmissible on the ground that it created an equitable mortgage of Immovable property and was therefore inadmissible in evidence for want of registration. The second document was a khata for the Samvat 2000. The learned trial Judge rejected it on the ground that it was not produced at the earliest stage under Order 13, Rule 1, CPC that being a promissory note it was insufficiently stamped u/s 32, Junagadb, Stamp Act, corresponding with Section 35, Indian Stamp Act, and that it was not registered although it created an equitable mortgage. The third document was a khata of Samvat 2001. which was rejected on the same grounds on which the first document was rejected.

A preliminary objection has been taken against the competency of this revision. It was urged on behalf of the opponents that no revision could lie against an order refusing to admit evidence. I think the objection must be sustained. The revisional jurisdiction of the High Court extends to correcting errors of jurisdiction of the subordinate Courts and not merely errors of law. Assuming that the documents were wrongly excluded from evidence the learned Civil Judge''s order merely amounted to an error of law and Section 115, Code of Civil Procedure, does not authorise the High Court to interfere in cases where the order of the subordinate Court discloses no error of jurisdiction.

In-Isa Adam v. Bai Mariam AIR 1927 Bom 664 (A) the Bombay High Court held that an interlocutory order of the lower Court rejecting certain evidence as inadmissible during the pendency of a suit is not revisable. In- Senaji Kapurchand Vs. Pannaji Devichand, it was held that a finding on an interlocutory matter followed by an order is not a case decided within the meaning of Section 115 and the High Court will not interfere in a case where the party aggrieved has Anr. remedy open to him by way of appeal. Mr. A.R. Bakshi for the applicant, however, argued that this view has been considerably modified by a later decision of the same High Court- Jamnadas Vrijlal Vs. Chandulal Jamnadas, . That was, however, a revision against a decision by a subordinate Court which went to the jurisdiction of that Court. The suit was for injunctions both prohibitory and mandatory. The claim was valued for the purposes of court-fees at Rs. 230/ - and the value of the properties in suit was more than Rs. 15,000/ -. The suit was started in the Court of the Second Class Judge and one of the two preliminary issues in the suit was whether the Court had pecuniary jurisdiction to try the suit. The subordinate Court decided this issue in the affirmative. On a revision against the finding of this issue the High Court held that the issue went to the jurisdiction of the Court and therefore the revision was competent. This case therefore makes no substantial departure from the general rule that the High Court will not interfere with interlocutory orders of subordinate -Courts involving errors of law as distinguished from errors of jurisdiction.

The position has been reviewed in a recent decision of the Privy Council in- AIR 1949 156 (Privy Council) . Their Lordships observed as follows:

In the. present case the learned Judges of the High Court set aside the judgment of the District Judge because they considered that he had made a serious mistake in the construction which he had placed upon the will of the testator and they seem to have thought that a serious error of law could be corrected in revision. There have been, no doubt, decisions in some High Courts in India which. lend support to the view upon which the Judges acted.... 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 3 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 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 question of fact or law.

These observations apply to the case before me. The learned Judge held, we may assume erroneously, that the documents were inadmissible. As soon as he held that he was not only entitled but was bound to reject them. If he acted otherwise he would have acted illegally and there would have been in their Lordships words

an. error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.

In rejecting the documents though on a wrong view of the Registration Act or the Stamp Act, the learned Judge did not act illegally or with any irregularity in the exercise of his jurisdiction.

7.The Petitioner''s learned advocate argued that he had no right of appeal against the final order that may be passed in the-suit and therefore this Court can interfere in revision. I have not the advantage of having the full record of the case before me and therefore. I am not in a position to express any opinion on the correctness of this contention. I shall, however, accept the contention for the purpose of this judgment. Even then as the Petitioner has not shown that the decision involves any error of jurisdiction the High Court cannot interfere with it. I may make it clear that I express no opinion on the correctness or otherwise of the learned Civil Judge''s order. I decide the revision on the preliminary point only.

The revision is ordered to be dismissed with costs. Each opponent shall be paid a separate set of costs.