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Judgment
Sadasiva Aiyar, J.—These three petitions have arisen out of suits in ejectment brought by the same plaintiff (who comes under the definition
of a landlord under the Estates Land Act) against his tenants. The Court of first instance (the District Munsif''s Court of Tanuku) was of opinion
that a Civil Court had no jurisdiction to try the suits, and that under the Estates Land Act the plaintiff ought to have brought the suits in a Revenue
Court. The learned Munsif therefore ordered the plaints to be returned to the plintiff for presenation to the proper Court.
On appeal, the Subordinate Judge of Ellore held that under the saving clause to'' Section 153 of the Estates Land Act, the suite were cognisable
by a Civil Court. He set aside the District Munsif''s orders and directed the District Munsif to take back the plaints, to restore the suit to his file and
dispose of them according to law.
These Civil Revision Petitions have been filed, praying for the reversal of the learned Subordinate Judge''s orders in the suits. Under Order
XLIII Rule I (a) of the Civil Procedure Code, an appeal lay to the Subordinate Judge''s Court from the District Munsiff''s order returning the plaint
in each suit. u/s 104 of the CPC Clause 2, a second appeal is prohibited from orders so passed in appeal. Hence, the defendants have come
before us by way of Civil Revision Petitions u/s 115 of the new CPC (which corresponds to the old Section 622).
u/s 115, the High Court has power to interfere if a Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise
a jurisdiction so vested or has acted illegally or with material irregularity, in the exercise of its jurisdiction.
The Learned Counsel for the plaintiff (respondent), Mr. T. Prakasam, has taken a preliminary objection to the hearing of these Civil Revision
Petitions on the ground that the Subordinate Judge in hearing and allowing the appeals against the Munsif''s orders neither wrongly clutched at
jurisdiction nor wrongly refused to exercise jurisdiction, that he acted neither illegally nor with material irregularity and hence Section 115 did not
apply so as to give the High Court jurisdiction to interfere in revision.
The decision of the preliminary objection thus raised is by no means free from difficulty. The leading case on the question of the powers of the
High Court to interfere under the old Section 62-2 is the Privy Council case of Ameer Hasan Khan v. Sheo Baksh Singh ILR (1884) C. 6. But in
construing their Lordships'' dicta in that case, the High Courts and even the different benches of the same High Court have not been in agreement.
In the case in Dwarka Nath Sen v. Kissory Lal Goswami (1910) 14 C.W.N. 703, decided by Mukerjee and Teunon, JJ., the learned Judges
say as follows:-(See page. 707). ""As pointed out by Stanley. C.J., in Ross Alston v. Pitambar Das ILR (1901) A. 509, that decision"" (i.e., the
decision of the Privy Council in Ameer Hasan Khan v. Sheo Baksh ''Singh ILR (1884) C. 6, is an authority for the proposition that the words
acted illegally or with material irregularity'' do not comprehend a case or decision attacked merely on the ground that it is erroneous in law,-in that
particular case, the erroneous decision upon a question of res judicata. The judgment of the Judicial Committee, however, does not furnish any test
for determining under what circumstances a Court may be said to have acted illegally or with material irregularity nor is any general principle
deducible from the numerous cases in the reports which are by no means easy to reconcile."" Then the learned judges go on to say that the phrase
''acted illegally or with material irregularity'' is not limited to cases of procedure only but includes cases of decisions vitiated by an error so palpable
as to lead to ""grave and manifest injustice.
But if the doctrine is thus enunciated so as to enable the High Court to interfere in cases of ''grave and manifest injustice'' ""it obviously leaves
much room for divergence of judicial opinion."" In the case in Boss Alston v. Pitambar Das ILR (1903) A. 509 two learned Judges held that they
could interfere u/s 622 with an erroneous decision of the District Judge that a barrrister could be sued for the return of his fees if he did not appear
for his client, whereas the third learned Judge (Banerjea J.) held that Section 622 did not empower the High Court to interfere with the Lower
Court''s said erroneous decision, as the Lower Court had jurisdiction over the suit and could not be said to have acted illegally or with material
irregularity simply because it determined a legal question erroneously.
In the Revision Petitions before us, the Subordinate Judge could not be said to have had no jurisdiction to hear appeals against the Munsif''s
orders returning the plaints for presentation to the proper Court. Assuming that his decision on the interpretation of the saving clause to Section
153 of the Estates Land Act is erroneous, he could not be said to have acted illegally or with material irregularity in the exercise of his jurisdiction
though he might have decided erroneously, the question of law. However, as was said in Dwarka Nath Sen v. Kissory Lal Goswami (1910) 14
C.W.N. 703 above referred to, several benches in the several High Courts seem to have held that if the decision on the question of law is so
erroneous as to have led to grave and manifest injustice, the High Court had the power to interfere in revision notwithstanding the decision of the
Privy Council in Ameer Hasan Khan v. Sheo Baksh Singh ILR (1884) C. 6. The boldest attempt made to minimise the effect of the Privy Council
decision was made in Badami Kuar v. Dinu Rai ILR (1886) A. 111, where Straight J., went so far as to say that the words ''acted illegally'' in
Section 622 had the very same meaning as the words in Section 584 which empowered the High Court to entertain a second appeal where the
Court below had in the exercise of its jurisdiction come to a decision which is ""contrary to some specified law or usage having the force of law."" It
is unnecessary to set out the very numerous cases in which conflicting views have been pronounced on this question as to the scope of Section
I shall refer to only a few to indicate the irreconcilable conflict. In Kali Charan Sirkar v. Sarat Chunder Chowdhry ILR (1903) C. 397, a Full
Bench of the High Court clearly said that the mere fact that the Lower Court had fallen into an error of law cannot give jurisdiction to the High
Court u/s 622 to interfere in revision. This Full Bench case has almost been ignored by some division benches of the Calcutta High Court in later
cases. In Duraisami Reddi v. Muthial Reddi ILR (1908) M. 458, Miller, J., clearly held that the decree of the Judge of a lower Court cannot be
interfered with u/s 622 merely because the Judge had made a mistake in law. In The Madras Electric Tramways Co. Vs. The Madras
Corporation, Sankaran Nair J., also held similarly. In Mathura Nath Sircar v. Umesh Chandra Sarkar, Maclean, C.J. and Bannerjea, J, held that
when a Court of first instance ordered a plaint to be returned for presentation to the proper Court and the Court of appeal set aside such order,
the High Court had no jurisdiction to interfere with such appellate order u/s 622 of the Civil Procedure Code. Now this case in Mathura Nath
Sircar v. Umesh Chandra Sarkar (1897) 1 C.W.N. 626 is almost exactly similar to the present revision petitions. In that case also, it was argued
by the petitioner''s Vakil (Mr. Saroda Charan Mitter, afterwards Mitter J.,) that if too strict an interpretation be put upon the Privy Council
decision in Amir Hasan Khan v. Sheo Baksh Sing ILR (1884) C. 6 there will be practically no remedy in cases of manifestly erroneous decisions
pronounced by lower Courts in cases where no appeal or second appeal lay. It seems also to have been argued that if the High Court can interfere
in revision where a Court against whose decision there is no appeal at all, acts without jurisdiction, the High Court can also interfere where an
appellate Court (against whose appellate decision there is no second appeal) erroneously asks the Court of first instance to act without jurisdiction
or not to act when the first Court really has jurisdiction. But these contentions were overruled by their Lordships in that case. I might add that
though Bannerjea J. in a previous case reported in page 617 of the same volume, had expressed the view that Section 622 allowed the High Court
to interfere with gross and palpable errors of law committed by lower courts, he did not seem inclined to take the same lax view in the later case
reported in page 626.
In Zamiran v. Fateh Ali ILR (1904) C. 146, where a District Judge confirmed the order of the Subordinate Judge returning the plaint for want
of jurisdiction, the High Court interfered in revision simply because the District Judge committed on error of law in confirming an erroneous
decision of the Subordinate Judge as to the Subordinate Judge''s jurisdiction. In Meenatchi Achi v. Anantanarayana Ayyar ILR (1902) M. 226,
Benson and Bashyam Iyengar, JJ., in the third sentence of their judgment thus formulate the objection of the respondent before them to their
interference in revision in C.R.P. No. 343 of 1900. ""Civil Revision Petition No. 343 of 1900 does not lie by reason that the appeal did lie to the
District Court and that though the Munsif who passed the order appealed against acted in the exercise of his jurisdiction with material irregularity
yet the order passed by the District Judge on appeal cannot be revised by this Court u/s 622 of the Civil Procedure Code, though in the exercise
of its appellate jurisdiction he (the District Judge) failed to set aside the order appealed against which was erroneous."" Having thus stated the
preliminary objection, their Lordships merely say that they overrule it. In a very recent case C.R.P. No. 612 of 1911 decided by Miller, J. in which
the learned Judge was pressed to set aside the order of a District Judge who in appeal had set aside the order of the District Munsif returning the
plaint, the following judgment was delivered :-""I am clear that this petition does not lie u/s 115. There is no illegality or irregularity so far as I can
see in the exercise of his jurisdiction by the District Judge. This Code allows only one appeal from the order of the Court of first instance and I am
not at liberty to admit a second. Dismissed with costs."" Thus there seems to me a clear conflict between the decision in Meenatchi Achi v.
Anantanarayana Aiyar ILR (1904) C. 146, and that in the recent Civil Revision petition No. 612 of 1911, I doubt the correctness of those
decisions in which it has been held that the words ''acted illegally'' in Section 115 would include erroneous decisions of law and not merely
decisions in which by reason of erroneous procedure (such as shutting out of evidence or arguments) the party applying in revision was prejudiced
in the trial of the case and I also doubt the correctness of those decisions which held that because the question of the jurisdiction of the Court of
first instance was involved in the erroneous decision of the appellate Court the High Court can interfere in revision with the erroneous decision of
the appellate Court on the footing that the appellate Court itself acted without jurisdiction by pronouncing an erroneous decision on the question of
the jurisdiction of the Court of first instance.
As I am given to understand that, owing to the passing of the Estates Land Act and to the conflicting views taken as to the jurisdiction of the
Civil Courts over ejectment suits by landlords, numerous similar Civil Revision Petitions have either been filed or are likely to be filed in the High
Court, and having in view the conflict of decisions on the exact scope of the provisions of Section 115 of the Civil Procedure Code, I consider it
desirable to refer the following questions for the decision of Full Bench:
(1) What is the exact scope of the meaning of the words ''acted illegally'' in Section 115 of the Civil Procedure Code? Has the High Court power
to interfere in any class of cases (and if so which class) where a question of law is wrongly decided by the Court whose decision is attacked in
revision ?
(2) Has the High Court jurisdiction to interfere u/s 115 where an appellate Court erroneously decides in the exercise of its admitted jurisdiction as
an Appellate Court that the Court of first instance was or was not competent (i.e., had or had not jurisdiction) to entertain suit?
Sankaran Nair, J.
I Agree