Chiman Lal Bhagwant Rai vs Matia Ram and others

Chopra, J.—Whether a revision under S. 115, Civil P.C., is competent against every order from which no right of appeal is provided by the Code and irrespective of whether such an order can he made a ground of appeal to the High Court from the final decree or order in the case or whether revision is only competent under the said Section against an order which is neither appealable nor can he made a ground of appeal according to S. 105, Civil P.C., in an appeal to the High Court from the final decree or order in the suit or proceeding?

Briefly stated the facts of the two civil revision petitions in which the reference is made are: In C.R. No. 178 of 1953, Matia Ram and others respondents brought a suit for declaration that they are owners of the land in dispute on the basis of acquisition of title by purchase and also by adverse possession. Sher Singh, the alienor, had at some time previously approached the Revenue Authorities and succeeded in convincing them that the alienation was void masmuch as it contravened the provisions of the Alienation of Land Act and that he was entitled to recover possession of the land. An order for delivery of possession was consequently made in his favour. This gave rise to the present suit in which Slier Singh and his mortgagee Chaman Lal are impleaded as defendants. The defendants inter alia pleaded that the suit was barred by time and also that it was not cognizable by a civil court. On both these points the trial Sub-Judge found in favour of the plaintiffs and proceeded with the trial of the case on the rest of the issues. Chaman Lal defendant has come in revision against this order.

In the other case (No. 19 of 1954), Captain Sukhdev Singh instituted a suit for restitution of conjugal rights against his wife Shrimati Chandanwant Kaur in the Court of the Sub-Judge at Nabha. One of the pleas taken up by the defendant was that the plaintiff had his residence at Delhi, where he was posted, and not at Nabha; hence the Court at Nabha had no jurisdiction to try the suit. The Court found that since the plaintiff was a permanent resident of Nabha he, as provided by S. 20, C.P.C., was entitled to institute the suit there or at Delhi, where he was temporarily residing. Shrimati Chaudanwant Kaur has presented a petition for revision against this order.

In both the cases a preliminary objection was raised on behalf of the respondents that as the interlocutory order can be challenged under S. 105, C.P.C., in an appeal against the final decision of the suit a revision-petition is specifically barred by S. 115 of the Code. My learned brother Mehar Singh J., though inclined to agree with the view that has generally prevailed in this Court and is also in consonance with the one adopted by most of the other High Courts in India, has referred the above question for decision by a larger Bench because of the two recent decisions of the Rajasthan High Court Pyarchand and Others Vs. Dungar Singh, and Purohit Swarupnarain Vs. Gopinath and Another, in which the matter was approached from a different angle and a contrary view that no revision under such circumstances is competent was taken.

The revisional jurisdiction of the High Court in civil cases is derived form S. 115, C.P.C. The first and the relevant part of the section says:

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.....

The second part prescribes the circumstances under which the revisional power may be exercised, but with that we are not at present concerned. The section is enacted to enable the High Court to correct, when necessary, certain classes of errors relating to jurisdiction committed by a subordinate Court. But the jurisdiction of the High Court to entertain a petition for revision is made subject to three conditions:

(1) There must have been a ''case decided''.

(2) The Court deciding the case must be one subordinate to the High Court, and

(3) The case must be one in which no appeal lies to the High Court.

It is not disputed, and for the purposes of the question before us we have also to assume, that the order under revision amounts to a case decided. It was made in the course of the trial of a suit and related to a preliminary objection regarding jurisdiction of the Court in which the quit was instituted. The Court also being subordinate to this Court, the first two conditions are fully satisfied. As regards the third condition, it is equally clear that the order itself is not appealable since it does not fall under any of the clauses of S. 104, C.P.C. We have, however, to consider the effect of the provisions of S. 105(1) on the third condition laid down by S. 115. Section 105(1) reads as follows:

105(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

Under S. 98 every decree is appealable, save where otherwise expressly provided in the body of the Code or by any other law for the time being in force. Section 100 declares that, save where, otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie to the High Court from every appellate decree on grounds mentioned therein. Section 101 enacts that no second appeal shall lie except on the grounds mentioned in S. 100. But as regards an order, S. 105 provides that no order is appealable except those specified in S. 104; and in their case also no further appeal from any order passed in appeal is permissible, vide S. 104(2).

As I read it, S. 105 only makes a negative provision and is not meant to create a right of appeal from orders other than those mentioned in S. 104(1). However, it provides a remedy to the party aggrieved by any such order as much as it allows him to challenge any error, defect or irregularity in the order in the appeal that he may file against the decree which may finally be passed against him. That too is made subject to the condition that the defect, error or irregularity has affected the decision of the case. The phrase ''affecting the decision of the case'', according to all the High Courts, means affecting the decision of the case on merits. Let us now take, for instance, an order made on a preliminary objection of the defendant as in this case, regarding jurisdiction of the subordinate Court to try the suit, and examine when, if at all, the order can be brought to be agitated before the High Court.

Where the objection is upheld and on that score the plaint is returned to be presented to the Court in which the suit should have been instituted, the order is open to an appeal to the District Judge or the High Court, as the case may be, under O. 43, R. 1(a). If the appeal lies to the High Court no revision against the order is competent. Where the objection is repelled and the Sub Judge decides to proceed with the suit, the defendant cannot go in appeal against the order. If the immediate and direct remedy by way of revision to the High Court is to be denied to him, he has to submit to the jurisdiction of the Court and undergo the entire proceedings in the suit till it is finally decided. Where the final decision goes against him he has a right of appeal from the decree to the District Judge and then to the High Court or sometimes directly to the High Court.

Under S. 21, C.P.C., an objection as to the place of suing has to be raised in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled on or before such settlement. The section further lays down that no such objection shall be allowed to be taken in appeal unless it was so raised and unless there has been a consequent failure of justice. Under S. 11, Suits Valuation Act, objection regarding pecuniary jurisdiction of a Court cannot be entertained by any appellate Court unless the objection was taken in the Court of first instance on or before the hearing on which issues were framed and unless the defect has prejudicially affected the disposal of the suit on its merits. These provisions at once make it clear that objections with respect to jurisdiction must be raised at the earliest, so that they may be dealt with and decided at the first instance and before proceeding with the actual trial of the suit.

This is meant to save the Court from the unnecessary waste of its time and the parties their botheration and expense of a protracted trial. The defendant whose objection regarding jurisdiction fails to find favour with the Court of the first instance, is allowed to set forth any error, defect or irregularity in the order as a ground of objection in the memorandum of appeal against the decree finally passed against him. That too he can do only if the error, defect or irregularity has affected the decision of the case on merits. This remote and problematic chance of bringing the objection to the notice of the High Court does not, in my opinion, make the case one in which an appeal lies to that Court in the sense that it takes away its jurisdiction to entertain a petition for revision directly against the order rejecting the objection.

Section 115 is enacted with a view to enable the High Court to correct, when necessary, certain classes of errors relating to jurisdiction committed by the subordinate Courts. This relief is given to a person who cannot approach the High Court under any of the sections 96, 100 and 104 or O. 43 of the Code or any other statute. The revisional power, which is purely discretionary, is meant to be exercised where there is risk of irreparable loss and consequent grave injustice, and where there is either no other remedy at all or the remedy is too remote or cumbersome to be of any practical value. The purpose behind S. 115, C.P.C., is to provide the means to an aggrieved party to obtain rectification of a non-appealable order, though in exceptional circumstances. The very purpose of the section will be fulfilled if the High Court must necessarily refuse to entertain a petition because of the rare chance of being able to go into the matter as provided by section 105.

I would like to repeat that, in my view, S. 105 fees not provide an appeal against an interlocutory order made the course of the trial of a suit, but merely, provides a remedy that may, in certain cases, be open to the person aggrieved by that order. This negative and remedial provision cannot be construed to constitute the case as one in which an appeal lies to the High Court, thereby precluding that Court from entertaining a petition for revision. It may, however, be taken into consideration before the special and extraordinary power under S. 115 is exercised in favour of interference.

As in cases where the applicant could have appealed against the decision complained against and has not clone so, the Court may refuse to interfere with an interlocutory order which can be questioned in appeal against the final order in the suit under S. 105, C.P.C. The rule of non-interference on that ground is not an inflexible one and depends upon the special circumstances of each case. The High Court may interfere where, in its view, non-interference will lead to multiplicity of proceeding''s and unnecessary expense and delay or where the other remedy is so inconvenient and in expeditious as practically to amount to no remedy at all. It is in this light that the matter has been looked at in most of the decisions cited at the bar, to which I shall presently refer, and the discretion to interfere, has or has not been exercised on a consideration of the provisions of S. 105.

(6) Again, S, 105 makes it a condition precedent that the defect, error or irregularity in the interlocutory order should have affected the final decision of the suit on merits. Where a revision is filed before the suit is finally decided, it may, in most of the cases, be well nigh impossible to judge that the defective or erroneous order must necessarily affect the decision of the case on merits. It is only when the decision is actually given that the Court is in a position to hold whether or not the interlocutory order has led to a wrong decision Section 115, C.P.C., in my view, therefore, is not intended to be made subject to the provisions of S. 105.

The use of the word ''in'' in the pharse ''in which no appeal lies thereto'' in S. 115 is of no significance and makes no difference in the view that I have taken. In the Full Bench case of the Rajasthan High Court Purohit Swarupnarain Vs. Gopinath and Another, which has given rise to this reference, Wanchoo C.J. has tried to make much capital of and laid great stress on the use of the word ''in'' in the above phrase. It was contended that every order, which is not appealable to the High Court under the provisions of the Code, would be revisable under S. 115 if the conditions mentioned in that section are complied with. The learned fudge refuting this contention points but that in Ss. 96, 100, 104 and 109, which provide for appeals against decrees or orders, the word used is ''from'' and not ''in'', and observes:

If, therefore, the intention of the legislature was that a revision should lie from every decree or order from which no appeal was provided up to the High Court under Civil P.C. I should Rave found the same word ''from'' used in S. 115 also. Instead however, the word used is ''in'' the actual phrase being ''in which no appeal lies thereto'' and not ''from which no appeal lies thereto''. The legislature, therefore, must have intended something different when it used the word ''in'' and not the word ''from''

and again as:

To my mind, therefore, the intention could only have been, by using the word ''in'' and not the word ''from'' in this phrase, that the order in question should not be one which would come for consideration before the High Court in any form in any appeal that may reach the High Court in the suit or proceeding in which the order was passed. It is easy to understand that the revisability of the order was made to depend upon whether the order would reach the High Court in a first or second appeal, and could De questioned there by means of a ground under S. 105. If it was so, the legislature could not have intended that the High Court should use its extraordinary power under S. 115 at an intermediate stage.

With due deference I am unable to agree to the above view, nor am I convinced of the reasoning on which it is based. The word ''from'' is used in the Code wherever a provision is made for an appeal against a decree or order. The same preposition ''from'' could not have been appropriately used with the word ''case'' in S. 115. An appeal can only be said to lie ''in a case'' and not ''from a case.'' The draftsman and the framers of the Code had no choice because the only preposition that could be applied was ''in''. The word ''case'' which is nowhere defined has been held to have much wider meaning than a suit or appeal. this Court has consistently held, and the same is now the view of most of the High Courts, that the word ''case'' is wide enough to include "the decision of any substantial question in controversy between the parties affecting their rights every though with an order is passed in the course of the trial of a suit.

It thus includes a part of the suit or an interlock-tory order as well. At both the places in the first part of S. 115 the word ''case'' is to be ascribed one and the same meaning. Where the word ''case'' refers to a part of the suit, the words "in which'' should he taken to apply to that part of the suit. Making this substitution, the section would read like this:

The High Court may call for the record of ''any part of a suit'' which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto.

Obviously the pronoun ''which'' stands for the ''part'' and not the suit. Therefore, the phrase ''in which'' would not pertain to ''suit'', but to that ''part'' of the suit which has been decided. The revisional jurisdiction of the High Court would thus be excluded only when the Code provides for an appeal against the decision of the part that has been decided. The fact that an appeal would lie from the final decision in the suit is immaterial for the purpose of this section.

In this Full Bench case, Pyarchand and Others Vs. Dungar Singh, ''. There the learned Judge held the view that in the case of orders "which fulfil the conditions laid by S. 105 and which can be challenged in the first or second appeal it would be quite correct to say that an appeal lies therefrom to the High Court." This aspect of the matter I have already dealt with. With the greatest respect to the learned Judge I have not been able to subscribe to this view.

This Court has in a number of cases interfered with interlocutory orders passed in the course of a suit or other proceedings, which though not directly appealable to this Court, could be challenged in appeal (first or second) from the final decision in the case. I need only refer to the latest of them - ''Tarachand Rattanchand v. Vedparkash Kishorilal'', AIR 1953 Pep 120 (C). There, I, sitting in Single Bench, had set aside an order of the trial Sub Judge refusing to frame an issue material to the case set up by the defendant. In the Letters Patent Appeal, on a certificate granted by me, it was contended that the refusal to frame additional issues did not amount to a case decided within the meaning of S. 115, C.P.C., and accordingly no revision petition to this Court was maintainable.

One of the arguments Adduced by the Learned Counsel for the appeallants before the Division Bench was that since the matter was discretionary and another remedy by way of appeal was open to the petitioner, the Single Judge had erred in accepting the revision petition. Teja Singh, the then C.J., who delivered the judgment with which Passey J., (now C.J.) agreed, overruled the objection in the following terms�

I may also mention that in - ''Gordhan Dass v. Ram Saran Dass'', 1 Pepsu LR 1 (D), mentioned above, it was held by me that the fact that lower court has committed an error cannot by itself give the aggrieved party a right to maintain a revision petition. But we cannot lose sight of this fact that the learned Judge has exercised the discretion in favour of the respondent and it cannot be doubted that the discretion was vested in him by law so it would not be right for us to set aside his order now, even though if we had heard the revision petition we would have taken a different view. Shri Jagan Nath did not deny that if the order of the trial Court amounted to a case decided its refusal to frame the necessary issues is tantamount to failure to exercise the jurisdiction vested in it by law.

In '' AIR 1949 239 (Privy Council) , an order of the Subordinate Judge had been set aside by the High Court at Calcutta on a petition for revision on the ground that the Subordinate Judge was wrong in holding that the loan in question was a ''commercial loan''. In appeal before their Lordships, on a certificate granted by the High Court, it was contended that the High Court had no power under S. 115, C.P.C., to interfere in revision with the order of the Subordinate Judge. The contention was repelled and it was held that the High Court, upon the view which it took that the loan was not a ''commercial loan'', had the power to interfere in revision. On a reference to two of the decisions holding the contrary view, their Lordships observed:

The cases of - Babu Ram and Another Vs. Munna Lal and Others, and - ''Hari Bhikaji v. Naro Vishvanath'', 9 Bom 432 (G), 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 opinion of their Lordships, therefore, the High Court has power to interfere in revision with an interlocutory order of a subordinate court on the point of limitation or res judicata.

In Ram Sarup Vs. Gaya Prasad the question referred to the Full Bench was whether a revision lies from an appellate order setting aside an ex parte decree. The question was answered in the affirmative. One of the objections to the maintainability of the petition was that the applicant had another remedy available, a circumstance which debarred the Court from the exercise of its revisional jurisdiction, and reliance in this connection was placed on the provisions of S. 105 (1), Civil P.C. It was argued that in the event of the plaintiff''s suit being dismissed after fresh trial he would have a right of appeal, and that in the prosecution of the appeal he would be entitled to challenge the order under discussion by setting forth in his memorandum of appeal an objection to it en the ground of error, defect or irregularity ''affecting the decision of the case''. Lindsay J., refuted this argument by saying:

But I am definitely of opinion that S. 105 (1) does not provide any remedy for the prospective appellant in a case like the present.

and that

on the grammatical construction of the latter part of the sub-section just mentioned, it is the "error, defect or irregularity'' in the order which may be pleaded by way of objection, not the order itself."

Discussing the same point Sulaiman J., observes:

As to the contention that we should decline to exercise our discretion because another remedy is open to the applicant, I would say that the supposed remedy would by no means be convenient or expeditious, and could be availed of only after considerable expense had been incurred and time spent.

The learned Judge did not approve the contrary view previously held by that Court in - ''Nand Ram v. Bhopal Singh'', 34 All 592 (I).

Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others , is another Full Bench decision in which a money decree passed on merits against the defendant was set aside by the Subordinate Court purporting to exercise its powers under O. 9 R. 13, C.P.C. In the revision petition presented against this order the questions referred to the Full Bench were�

Whether an appeal indirectly lies under S. 105, Civil P.C., from an order setting aside an ex parte decree?

Can the High Court interfere in revision to set aside an order passed by a subordinate Court of first instance purporting to exercise its powers under O. 9 R. 13?

It was contended that although the order was not exposed to a frontal attack in the shape of direct appeal to the High Court, it could be impugned as a ground of objection in the memorandum of appeal from the decree which may be eventually passed in the suit itself. The argument was repelled in the following terms:

Under S. 105 (1), the order setting aside an ex parte decree cannot be set forth as a ground of objection in the memorandum of appeal, but any error defect or irregularity in the said order may be set forth. This is the natural and grammatical construction of the text. The section is no warrant for the proposition that the order itself can be open to challenge in the appeal preferred from the decree passed in the suit itself.

It was further observed that�

an appeal against an order is not the same thing as advancing a ground of appeal about error, defect or irregularity in the said order, distinction which has not always been kept ii view.

The whole case law on the point was considered and the contrary view expressed in ''34 All 592 (I)'', repudiated. By a unanimous judgment, the Full Bench answered the first question in the negative and the second in the affirmative.

An order refusing an amendment of the plaint was challenged in a petition for revision in Kishan Lal-Babu Lal Vs. Ram Chandra ; and - Vasantarayudu v. Reddi Subbamma'', AIR 1914 Mad 17 (L), were cited in support of the objection that though no immediate appeal lay a remedy was supplied by S. 105, C.P.C., Kendall J., following the later decisions of his own Court repelled the objection and set aside the order with the following observations�

The view has been expressed more than once that, where the effect of allowing a revision, in a matter in which an appeal might also lie will be a convenience to the parties and will save expense, the Court will be include to interpret the provisions of S. 115 liberally and to interfere with an order which has been passed without jurisdiction, or illegally or with material irregularity in the exercise of its jurisdiction.

An interlocutory order of the District Munssif overruling the defendant''s objection that the Court had no jurisdiction to try the suit, was impugned in - Syed Dewan Khaja Moideen Saheb Vs. D.M. Abdul Gaffoor Sahib, . On behalf of the respondent it was contended that, even though the District Munsif erred in holding that he had jurisdiction, the High Court ought not to interfere at that stage; for, if the suit was decreed in favour of the plaintiff, the defendant would be entitled to raise this question in appeal and if he satisfied the Court that he had suffered prejudice by the wrongful exercise of jurisdiction by the District Munsif, he would be able to get the decree set aside. The objection did not find favour with the learned Judge and it was held that the mere fact that a finding on a question of jurisdiction could be challenged in appeal from the decree passed in the suit does not preclude the High Court from interfering in revision on a question of jurisdiction when it arises at a preliminary stage in the suit.

Prior to its Full Bench decision in - AIR 1943 65 (Lahore) the view taken by the Lahore High Court was that an interlocutory order, made in the course of a suit could not be revised as it did not amount to a case decided''. The Full Beach repudiated their earlier view and held that the word ''case'' is wide enough to include the decision of any substantial question in controversy between the parties affecting their rights even though such order is passed in the course of the trial of a suit. Dealing with the applicability of S. 115 to such orders in the light of the provisions of S. 105, Bhide J., observes�

Even when an interlocutory order is liable to be challenged in an appeal from the final decision according to S. 105, Civil P.C., or by a separate suit, the remedy may be too remote or cumbersome in the circumstances of a particular case to be of any practical value and in such cases also irreparable loss and gross injustice may result at times, if the erroneous order is not set right at once.

Taking, for instance, an erroneous order or an issue as to jurisdiction the learned Judge remarks that

It a court which has no jurisdiction at all to try a certain cause proceeds to try it, a great deal of time and money will be wasted, if the error is patent but cannot be rectified till the final decision of the suit,

and that

It seems hardly likely that the legislature could have intended to exclude such cases from the scope of S. 115, C.P.C.

The learned Judge, therefore, concluded that obviously it would be in the interest of justice to correct the error in such a case at once by exercise of the powers given to the High Court under that section.

(17) In AIR 1948 258 (Nagpur) a petition for revision was presented against order of the trial Court dealing with an amendment of a pleading and the framing of certain issues consequent on the amendment. In, an earlier case - ''Liladhar Daulat Ram v. Firm Radhakishan Ram Sahaya'', AIR 1946 Nag 5 (P), the same High Court had held the view that an order amending or refusing to amend the plaint or other pleading was open to revision. Bose J., (as he was then) was of the opinion that, as an appeal from such an order was ""directly provided'' S. 105, a petition for revision was expressly barred by S. 115, C.P.C. He consequently referred the following questions to the Full Bench:

(1) Was AIR 1946 Nag 5 (P)'', rightly decided in so far as it holds that an order amending or refusing to amend a plaint or other pleading is open to revision?

(2) ........ ........ ........

(3) If there is jurisdiction ought the High Court, as a matter of discretion, to entertain such applications on such questions?

The second question is not relevant for the purpose of the present case. The three learned Judges constituting the Bench of which Bose J., was not party, unanimously answered the first question in the affirmative and the third as�

No hard and fast rule can be laid down; each case should depend on its own facts and circumstances and the discretion should be exercised judicially and according to correct and well-established principles.

Padhye J., after setting out the conditions necessary for the exercise of jurisdiction under S. 115 observes;

It may be noted that according to one of those conditions the order sought to be revised must not by itself be appealable to the High Court. It is, immaterial that an appeal would lie to the High Court from the decree which ultimately be passed in the suit.

The ratio decidendi in these decision, if I have been able to understand them rightly, is that one of the conditions laid down by S. 115 is that the order sought to be revised must not by itself be appealable to the High Court. It is immaterial that an appeal would lie to the High Court from the decree which may ultimately be passed in the suit. This, however, does not mean that the High Court must necessarily interfere with every order against which a revision is entertainable. The interference will further depend, first upon whether the requirements of the second part of S. 115 are satisfied, and secondly, on the High Court regarding it a proper case where the discretionary and exceptional power of revision should be exercised.

(18) ''Dhapi v. Ram Pershad'', 14 Cal 768 (Q), is a case decided under S. 622 of the old Code (now S. 115). There too, it was contended that as the order was an interlocutory one and there was an appeal from the final decree, the High Court could not interfere under S. 622, C.P.C. In support of his contention the respondent relied upon soma of the earlier decisions of the same Court and those of the Allahabad High Court. Referring to these cases, Norris J., at page 780 observes�

These cases no doubt decide in so many words that S. 622, Civil P.C., does not apply to interlocutory orders when there is an appeal from the final decree. I confesses that, after a careful consideration of the judgments, I am unable to concur in the interpretation placed on S. 622, Civil P.C. I think that the word ''case'' in S. 622, Civil P.C., is wide enough to include an interlocutory order, and that the words ''record of any case'' include so much of the proceedings in any suit as relate to the interlocutory order. It is easy to imagine cases where irremediable injury may be done to party by an interlocutory order made without jurisdiction, and unless the words of the section are clear beyond all doubt to the contrary, I cannot believe that the legislature intended such injury to remain without a remedy.

Let us take another instance of an interlocutory order. On an objection as regards proper valuation of the plaint, the subordinate Court decides in favour of the defendant and directs the plaintiff to make up the deficiency in court-fee. Can the plains tiff approach the High Court in revision directly from this order, or should he wait for rejection of his plaint on his disobeying the order and the a move the District Judge or/and the High Court by way of appeal? In my judgment, S. 115, C.P.C., is meant to provide a remedy to the plaintiff in a case like this. I am shared in this view by a Division Bench decision of the Madras High Court in - ''Rani Kulandai Pandichi v. Indran Ramaswami Pandia'', AIR 1928 Mad 416 (R), subsequently affirmed by a Full Bench in - Chintalapati Murthiraju Vs. Chintalapati Subbaraju and Others, In the former, a preliminary objection to the maintainability of the petition on the ground that an appeal would lie against an order dismissing the suit if court-fee was not paid was overruled in the following terms:

We think the mere fact that an appeal will lie later on, on the consequential orders passed by the Subordinate Judge if the stamp is not paid is no ground for refusing to entertain the petition to revise the order demanding an erroneous court-fee and declining to proceed with the suit unless the sum erroneously demanded is paid.

In the latter, the full Bench holds, that a revision-petition lies when a Court subordinate to the High Court has held that the plaintiff has inadequately stamped his plaint, but that a petition for revision does no lie when a defendant has unsucfessfully challenged the adequacy of the stamp affixed by the plaintiff, unless a further question of jurisdiction is involved.

The High Courts of Calcutta, Bombay, Lahore and Patna also hold the same view. In - Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, , it is held that the High Court can interfere with an erroneous decision of the trial Court adverse to the plaintiff in the matter of court-fee without leaving the aggrieved party to the cumbersome remedy of filing an appeal after the plaint is rejected for nonpayment of the court-fee. In - Mahadeo Gopal Pendse Vs. Hari Waman Bhate, observes�

If the order for payment is not complied with, the plaint is to be rejected under O. 7 R. 11, and such order, is appealable as a decree. But without waiting till then the plaintiff can treat the demand for higher court-fees as refusal by the Court to exercise its jurisdiction and apply to the High Court to have the order corrected in revision. The balance of judicial opinion is now in favour of this view.

The long train of authorities appears to me to have well settled the question. I do not think the decisions therein would have been the other way, if the matter was considered in the light of the reasoning adopted by Wanchoo C.J., in the two Rajasthan decisions. Nor would it be absolutely correct to say that in none of them the matter was of considered. It is true that the supposed difference created by the use of the word ''in'' in the phrase ''in which no appeal lies thereto'' in S. 115 was not urged or taken into consideration in any of them. But that was because it is of no significance.

In addition to the two Rajasthan decisions, Shri Lachhman Dass, Learned Counsel for the respondents, has drawn our attention to some of the authorities cited in Chitaley''s CPC under note No. 12 to S. 105 headed as "Revision of orders that can be challenged under the section" and in support of his remark, "where an interlocutory order can be challenged in an appeal from the final decree under this section, the High Court will not, as a rule, interfere in revision". This is not in conflict with the view that I have taken. It only amounts to saying that the High Court, as in a case where some other remedy is open to the petitioner, will ordinarily refuse to exercise its discretion in favour of the petitioner on the ground that the interlocutory order can be questioned in appeal from the final decision in the suit. In - '' 34 All 592 (I)'', a petition for revision against an order letting aside an ex parte decree was presented alter another decree on a fresh trial, in the presence of the parties, had been passed. Karamat Hussain J., following the earlier decisions of his owm Court - ''Farid Ahmad v. Dulari Bibi'', 6 All 234 (V); and - ''Sheo Prasad v. Kastura Kuar'', 10 All 119 (W), reproduced the following as the remarks made in - ''Motilal Kaslnbhai v. Nana'', 18 Bom 35 (X), and adopted them, substituting S. 115 for S. 622 and S. 105, for S. 591:

An application under S. 622 cannot be entertained in the case of those interlocutory orders against which, though no immediate appeal lies, a remedy is supplied by S. 591, which provides that they may be made a ground of objection in the appeal against final decree. The purpose with which S. 622 was passed was to enable a party to a suit to get rid of (?) a decision or order of a lower court rectified by the High Court where there would otherwise be no remedy.

Knox J., simply agreed in rejecting the petition as, in his view, sufficient ground had not been shown for interference. The above quotation is only a reproduction of the headnote prepared by the editor of the Reports and that too not correctly. The remarks, as they have been noted, are not to be found in the body of a few lines'' judgment of Sargent C.J., the material part of the head-note ''an application under S. 622 cannot be entertained'' is nowhere there.

An identical objection having been taken in - ''Sheopal Singh v. Badri Singh'', AIR 1917 All 321 (1) (Y), Knox J., considered himself bound by the decision in '' 34 All 592 (I)'', and did not deem it necessary ''to take up further time of the court'' by referring the particular case before him to a larger Bench.

Thereafter, ''Nand Ram''s case (I)'', was discussed and disapproved by Lindsay J., in - Ram Sarup Vs. Gaya Prasad and again by the Full Bench in Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others , and also in Kishan Lal-Babu Lal Vs. Ram Chandra to which reference has already been made.

18 Bom 35 (X)'', has also been relied upon. As already observed; the head-note thereof is somewhat misleading as it goes beyond what was actually held. Moreover, the view taken in ''Nand Ram''s case (I)'', in which it was followed, no longer holds the field.

In ''Damodar Trimbak v. Raghunath Hari'', 26 Bom 551 (Z), a revision petition against an order of the subordinate Court setting aside an award made on a reference to arbitration in tire course of a suit was dismissed by hardly a ten line judgment and simply on the basis of the decision in - ''Chatar Singh v. Lekhraj Singh'', 5 All 293 (Z1). That again is a case that held the view which was not approved by the same Court in its subsequent decisions.

In ''In re. Nizam of Hyderabad'', 9 Mad 256 (Z2), the Subordinate Judge had declined to issue a commission for the examination of certain witnesses and by another order directed certain documents to be produced by the plaintiff. Muttusami Ayyar J., declined to interfere and rejected the petition with the following observations:

No appeal is allowed by S. 588 from either of these orders, whilst S. 591 prescribes the course to be followed in regard to defective interlocutory orders. I do not consider that S. 622 is applicable to them and it presupposes a decision or an order in the nature of a decree and that no other remedy is provided for specially by the Code.

With all respects to the learned Judge I do not find anything in the language of the section confining its application only to ''a decision or an order in the nature of a decree'', or necessarily excluding its application to cases where some other remedy may also be available. The decision, in fact, rested on the interpretation of the word ''case'' in S. 622. The restricted construction placed by the learned Judge did not meet with approval in the subsequent decisions of that Court. The point was discussed and considered at some length by a Division bench of the Court in (Mahabool Surfuzuvanthu Sri Rajah) Parthasarathy Appa Rao Savai Aswarao and Another Vs. Rajah Venkatadri Appa Rao and Others, ''Nizam of Hyderabad''s case (Z2)'', and other cases holding a similar view were cited in support of the contention that an interlocutory order was not open to revision under S. 115, C.P.C., Odgers J., repelled the objection saying:

It seems to me too late as far as this Court is concerned to hold that there can be no interference in an interlocutory matter or proceeding on the ground that it is not a case decided.

Referring to the same ''Nizam''s case (Z2)'', Cuigenven J., remarked that since that case was decided ''the opposite view has been fairly consistently held''. The revision was consequently accepted and the order of the subordinate Court, though an interlocutory one, was set aside.

In AIR 1914 Mad 17, (L)'', the High Court declined to interfere with an erroneous order refusing to allow amendment of the plaint because, in the opinion of the learned Judge, the plaintiff had another effective remedy as provided by S. 105 (1), C.P.C.

The last of this set of cases is - ''Ma Kyi v. Maung Pan U'', AIR 1917 Low Bur 35 (Z4). The judgment in this case is based on the view expressed in the earlier Allahabad, Bombay and Madras decisions, to which reference has ready been made. Maung Kin J., after citing these cases observed,

the preponderance of authorities is against the applicant and I feel I should give my decision accordingly.

The above discussion leads me to the conclusion that a revision under S. 115, C.P.C., against an, interlocutory order, amounting to a ''case decided'', made in the course of the trial of a suit or other proceeding is competent, even though the order can be challenged under S. 105 (1), C.P.C., in appeal from the final decision of the suit or the proceeding. The tact that it can be so challenged is one of the matters that fall for consideration for exercising the discretion in favour of or against the petitioner. That, however, would depend upon the special circumstances of each case. I would consequently answer the question accordingly.

Mehar Singh J.:

(30) I am of the same opinion. The reference order was made by me and so I consider it proner to state my opinion, though briefly. The facts of the cases are given in the judgment of my learned brother and need not be recapitulated. The question referred to the Division Bench is�

Whether a revision under S. 115, Civil P.C., is competent against every order from which no right of appeal is provided by the Code and irrespective of whether such an order can be made a ground of appeal to the High Court from the final decree or order in the case or whether revision is only competent under the said section against an order which is neither appealable nor can be made a ground of appeal according to S. 105, Civil P.C., in an appeal to the High Court from the final decree or order in the suit or proceedings?

The reported cases show divergence of judicial opinion on the question. Then consideration crystallizes three opinions that have obtained among the learned Judges.

One opinion is that a revision under S. 115 is competent even in the case of interlocutory orders from which no appeal lies to the High Court, but where a remedy by way of an appeal from the final decree or order is open: - Buddhoo Lal and Another Vs. Mewa Ram, Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others ''; Kishan Lal-Babu Lal Vs. Ram Chandra ; - The Secretary of State for India Vs. Narsibhai Dadabhai Patel, - Salam Chand Kannyram Vs. Bhagwan Das Chilhania, - Kishori Mohan Pal Vs. Sudha Moyee, ; - ''Rama Kant v. Ragdeo'', 60 Pun Re 1897 (Z9-'' AIR 1943 Lah 65 at pp. 77-78 (N): AIR 1948 258 (Nagpur) and - ''Ratti Lal v. Raghu'', AIR 1954 AP 53 (Z10-11).

The second opinion is that revision under S. 115 cannot be entertained in the case of those interlocutory orders against which though no immediate appeal lies, a remedy is supplied by S. 105, which provides that they may be made a ground of objection in appeal against the final decree or order; '' 5 All 293 (Z1)''; 6 All 233 (V)''; 34 Alt 592 (I)''; '' AIR 1917 All 321 (1) (Y)''; Buddhoo Lal and Another Vs. Mewa Ram, - Ganesh Prasad Sahu Vs. Dukh Haran Sahu, '' 18 Bom 35 (X)''; '' 26 Bom 551 (Z)''; - ''Pakhar Das v. Kalla Ram'', 31 Pun Ro 1902 (Z13); - AIR 1924 425 (Lahore) Low Bur 35 (Z4)''; '' 9 Mad 256 (Z2)''; '' AIR 1914 Mad 17 (L)''; AIR 1948 258 (Nagpur) Pyarchand and Others Vs. Dungar Singh, ; Purohit Swarupnarain Vs. Gopinath and Another, (Br, and - ''Molugu Paniah v. Molugu Ramanathan'', AIR 1954 Hyd 66 (FB) (Z15).

The third opinion is that even if an interlocutory order can be attacked in an appeal from the final decree or order, the High Court will still interfere on revision if non-interference would work in hardships or in delay or may lead to a failure of justice Kishan Lal-Babu Lal Vs. Ram Chandra ; Sarajubala Debi and Others Vs. Mohini Mohan Ghose and Others, - Salam Chand Kannyram Vs. Bhagwan Das Chilhania, ) Indu Bala Dassi and Another Vs. Lakshmi Narayan Ganguly and Others, Kishori Mohan Pal Vs. Sudha Moyee, '' 60 Pun Re 1897 (Z9)''; AIR 1943 65 (Lahore) ''Ram Sundar v. Parasram'', AIR 1946 Oudh 88 (Z18); Krishnaswami Reddiar alias Rajah Chidambara Reddiar Vs. Venugopala Reddiar by his agent V.A. Lakshminarasimha Aiyar and Others, and AIR 1948 258 (Nagpur)

The first two opinions proceed upon considerations arising out of the interpretation of the provisions of Ss. 115 and 105, and either opinion being correct, the third opinion is hardly necessary, because if according to the first opinion revision is competent, the question of hardship and like considerations does not really arise, and it according to the second opinion it is not competent, even then that question does not arise. Besides, grounds of hardship or the like, when the language used in a statute is plain, cannot be taken into consideration in interpretation of the same. Maxwell in the Interpretation of Statutes, tenth edition, at page 208 says:

The argument of hardship has been said to be always a dangerous on to listen to. It is apt to introduce bad law and has occasionally led to the erroneous interpretation of statutes. The Court ought not to be influenced or governed by any notions of hardship.

So that the answer to the question is to be found in the correctness of one of the first two opinions, and in view of the conflict of judicial opinion on the question, the correct answer must come from the words of the sections themselves.

The provisions in S. 115 are divided into two parts, the first part lays down the conditions pre-requisite for the jurisdiction of the High Court to entertain a revision, and the second part provides for the grounds upon the basis of which once revision can be entertained, the High Court may interfere with the order of a subordinate Court. The present cases are only concerned with the first part of that section which provides that

the High Court may call for the record of any case (a) which has been decided (b) by any Court subordinate to such High Court and (e) in which no appeal lies thereto.

Of the three conditions thus laid down as prerequisite of jurisdiction to entertain a revision, there is no dispute about the first two in the present cases, and the whole argument centres round the third condition. The word ''appeal'' as used in the third condition is unqualified and there is absolutely no occasion or justification for either placing any limitations upon the scope and meaning of that word or for giving extended scope or meaning to it. If the intention of the legislature had been to give that word any other meaning than its plain meaning, it would have used such language as to make such other meaning clear. As it is, the word must be taken as Such and nothing can be added to it either by way of providing limitation upon the scope and meaning of it or by way of extension of the same.

The phrase used is "in which no appeal lies thereto", the plain meaning of which in the context is a case in which no appeal lies to the High Court, whether that appeal is from the original decree or from an appellate decree. In either case appeal lies to the High Court, the fact that in one case it lies at once from the original decree and in the other it lies after passing through a stage makes no difference as the appeal still lies to the High Court. It is in this view that it is now well settled that not only first appeal but also second appeal to the High Court is within the scope of the word ''appeal'' as used in the third condition. The word ''appeal'' be it noted is not being given any extended meaning when it is said that second appeal to the High Court falls within its scope and meaning, because what is called a second appeal is still an appeal to the High Court, and, as pointed out, there is no occasion or justification for limiting the scope and meaning of the word ''appeal'' in the third condition to first appeal only. It includes any appeal to the High Court, so long as appeal lies to the High Court.

The question is whether S. 105 makes a provision for such an appeal? That section so far as relevant says that

save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, an error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

Now, it is obvious that this section does not provide for an appeal from an interlocutory order to the High Court and all that it says is that when tire appeal is from the decree, any error, defect, or irregularity in such an order may be stated as ground of objection in the memorandum of appeal provided such error, defect or irregularity has affected the decision of tire case. It will be seen that even when an error, defect or irregularity in are interlocutory order can be set forth as a ground of appeal, it can only be done if the same has effected the decision of the case on merits. A provision for an appeal from an interlocutory order is one thing and a provision for setting forth any error, defect or irregularity in any such order as a ground of appeal in appeal from a decree is quite another thing. I think the distinction is quite apparent from the very language of sub-s. (1) of S. 105. No doubt, certain types of interlocutory orders are open to challenge in an appeal from the final decree, but that is far from paying that an appeal from such orders lies to the High Court. In this view I am supported by Ram Sarup Vs. Gaya Prasad Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others , ''M.S. Mahoamed v. Collector of Toungoo, AIR 1927 Rang 150 (Z20). In Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others , the Full Bench observed:

an appeal against the order is not the same thing as advancing a ground of appeal about error, defect or irregularity in the said order, distinction which has not always been kept in view.

With this observation I respectfully agree. Therefore the provision in S. 105 that an error, defect or irregularity in an interlocutory order can be made a ground of appeal in the appeal from the decree is not a provision in effect that an appeal lies to the High Court from such an interlocutory order. In this view, the first of the three opinions is the correct and the sound opinion.

(36) In Purohit Swarupnarain Vs. Gopinath and Another, the learned Chief Justice appears to have been mainly influenced by two grounds in support of the second opinion. One ground is that since second appeal is included within the scope and meaning of the word ''appeal'' in the phrase ''in which no appeal lies thereto'', it is only an extension of that scope and meaning of the word ''appeal'' to say that an appeal lies from an interlocutory order to High Court which interlocutory order can be challenged as a grouted of appeal under S. 105. It has already been shown that this reasoning is not supported by the plain words used in S. 105 and that there is no occasion or reason for giving any limited or extended meaning to the word ''appeal'' than its normal meaning in that section.

The second ground is that the legislature has used the word ''from'' in the Code in connection with appeals, and not the word ''in'', and in using the word, ''in'' in the phrase ''in which no appeal lies thereto'', it must have intended something different than when it uses the word ''from''. With the greatest respect for the opinion of the learned Chief justice, in my view, the word ''in'' was the only word which could be used with the word ''case'' in the context, and it would not have been literally correct to use the word ''from'' with the word ''case'' in that context.

Wherever in the Code the word ''from'' is used in connection with appeals, it is used with the words ''decree'' or ''order''. The word ''from'' has not been used anywhere with the word ''case'' and I respectfully say that it cannot be used with the word ''case'' properly and correctly. Perhaps illustrations of the use of the word ''in'' in this connection from Halsbury''s Laws of England, second edition, will lend to clarification of what I mean.

(I) Vol. 8, pages 376 and 377: "cases in which an appeal lies"; "an appeal does not lie in a case"; (ii) Same Vol., page 377: "an appeal exists as of right on a point of law in action of replevin"; "an appeal exists as of right, �, on a point of law in actions, of ejectment" (ii) Vol. 4, page 410: "an appeal by defendants in a charity suit"; (iv) Vol. 10, page 782: "appeals in matrimonial causes"; (v) Vol. 2 page 398: "an appeal lies in bankruptcy matters"; (vi) Vol. 18, P. 638: "an appeal in inter-pleader matters." It will be seen that the word ''in'' is the only word used with the words ''case, action, suit, cause, or matter'' in connection with a provision for appeal, and the words ''from'' is never used with any of those words in that connection, although in the same volumes the learned author along with the use of the word ''in'' with those words goes on to use the word ''from'' or ''against'' with the words ''decree'', order'', or "decision'', when referring to a provision of appeal with regard to the same. It is, therefore, abundantly clear that the word ''in'' has been properly and correctly used with the word ''case'' in S. 115, and that the word ''from'' could not have been used with the word "case'' in that section.

It is also clear that the word ''from'' has been properly a�d correctly used in the Code with the words ''decree'' or ''order'', and with those words the word ''in'' could not have been used. Thus by the use of the word ''in'' with the word ''case'' in S. 115, the legislature has not given any special meaning either to the word ''appeal'' or to the word ''case'' as used in that section. Therefore, the argument based on the use of the word ''in'' in that section is not well founded and sound.

(37) Another aspect of the case may also be considered. It has been held in - ''Dhari Upadhia v. Raushan Chaudhuri'', 1899 All WN 136 (Z21); ''Sheo Nath v. Ram Din'', 18 All 19 (Z22) and ''Sher Singh v. Diwan Singh'', 22 All 66 (Z23), that no appeal would lie where, the appeal being ostensibly against the decree in the suit, the grounds of appeal were only directed against an interlocutory order passed in the suit, and it has further been held in - ''Googlee Sahoo v. Prem Lall Sahoo'', 7 Cal 148 (Z24); ''Savitri v. Ramji'', 14 Bom 232 (Z25) and ''Thimma Nayanim Bahadur v. Venkatacharlu'', 34 Mad 228 (Z26), that an appeal lies where it is directed against the decree in the suit within the meaning of S. 105, though the only reason for the appeal is the erroneous decision in regard to an interlocutory order. Now, according to the first view it is apparent that there is no appeal from an interlocutory order under S. 105 to the High Court, and according to the second view the appeal is not from the interlocutory order but from the decree in the suit, even though the only ground in such an appeal is the erroneous decision in an interlocutory order.

It is not an appeal against or from the decision in the interlocutory order, but from the decree. Even the consideration of these authorities leaves no manner of argument that under the provisions in S. 105 an appeal does not lie to the High Court from or against an interlocutory order, and all that is provided in that section is that when an appeal is filed from the decree, the decision of an interlocutory order may also be one of the grounds in that appeal and may be attacked in that way, but that is not the same thing as saying that an appeal from the interlocutory order lies to the High Court.

I, therefore, agree with the answer proposed by my learned brother to the question that the first part of the question be answered in the affirmative, from which it follows that the answer to the second part is in the negative.