Mathura Nath Sarkar and another vs Umesh Chandra Sarkar

Maclean, C.J.—In this case the Defendant, on the 19th of November 1896, obtained a rule nisi from Mr. Justice O''Kinealy and Mr. Justice Hill, to the effect, that " the record be sent for, and a rule issue, calling upon the other side to show cause why the order of the Judge directing the lower Court to hear this cause should not be set aside, on the ground that the Munsif has no jurisdiction to hear it." The question we now have to decide is, whether or not that rule is to be made absolute. The suit is one which was brought in the Munsif''s Court. It was a suit either for damages or mense profits in respect of certain land.

I purposely refrain, as it is possible that a question may hereafter arise on the point, from saying what the precise nature of the relief asked for was, because in the view that we take of this application that is immaterial.

The Plaintiff and the Defendant were co-sharers. An objection was taken before the Munsif that he had no jurisdiction to entertain the suit, it being a suit that was cognizable by a Small Cause Court.

On the 7th July 1896, the Munsif held that the suit was not cognizable by his Court, and he ordered the plaint to be returned for presentation to the proper Court, in his opinion, the Small Cause Court.

An appeal was preferred against that decision, which came before the District Judge on the 13th August 1896, and the District Judge reversed that decision, holding in effect, that the Munsif had jurisdiction to deal with the matter, and in consequence of that the Defendants applied for and obtained a rule nisi, in respect of which we have to decide now whether it should be made absolute.

That depends upon the construction of sec. 622 of the Code of Civil Procedure. I need not read that section, which has been read two or three times in the course of the argument, but it was conceded by the learned pleader for the Petitioner that the only words of that section, which could apply to this particular case, are these :--"Where the Court below had acted, in the exercise of its jurisdiction, illegally or with material irregularity." It was, as I said before, conceded, that unless the course pursued by the District Judge came within those words, the section could not apply. I do not think there is any doubt as to that.

It is conceded also by the Appellant''s pleader that the learned District Judge in doing what he did was clearly acting within his jurisdiction, and the point urged is this, that if he did anything, he committed an error in law alone. It must not be assumed for a moment, from anything I may say in this judgment, that I arrive at the conclusion that the Judge has committed any such error. That question is not before us, and I express no opinion upon it. Then, the question arises, if the only error is an error in a point of law, could the District Judge be said, within the meaning of sec. 622, to have acted in the exercise of his jurisdiction illegally or with material irregularity, Now, this point is by no means free from authority. A Privy Council case--Amir Hassan Khan v. Sheo Baksh Singh I.L.R.11 Cal. 6 appears to me to be a clear authority, for the proposition that where the only error of the Judge in the Court below has been that he has arrived at a wrong decision upon a point of law, he cannot be said to have exercised his jurisdiction illegally or with material irregularity In that case Sir Barnes Peacock, in delivering the judgment of the Judicial Committee said this :--"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."

As I have said before, it is admitted that in this case the Judge was acting within his jurisdiction, and that being so, this particular case seems to be covered by this decision of the Privy Council.

There is a case which was before the Madras High Court, the case of Christtamma v. Chapa I.L.R.17 Mad. 410, and there the conclusion of the majority of the Judges was the same, on the point we are now considering, as the conclusion arrived at by the Privy Council in the case to which I have referred.

It was suggested by the learned pleader for the Appellant, that the decision in the Privy Council has been dissented from by a subsequent decision, in/the case of Birj Mohun Thakur v. Ray Umanath Chowdhry ILR 20 Cal. 8, but if one looks carefully at that decision, it is not difficult to see that the real ground of that decision is this, viz., that which is stated at page 11 :--"The Subordinate Judge refused to do that (that is to say, to take a particular course) and set aside the sale, and directed the purchase money to be refunded on certain terms, In so doing he declined to exercise a jurisdiction which he had, and exercised one which did not belong to him, and consequently his judgment was liable to be reviewed by the High Court under the 622nd sec. of the Code of Civil Procedure. "

But the reason for that decision was this :--The case came within the words of sec. 622, which say that, "if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested" * * * That case has no application to these words, which are admittedly the only words that can govern the present case.

There is only one other case to which I propose to refer, viz, that of Jugobundhu Pattuck v. jadu Ghose ILR 15 Cal. 47, and it was suggested that if we arrive at the conclusion that this case was not within the purview of sec. 622, we should be deciding in opposition to the case of Jugobunahu Pattuck v. Jadu Ghose ILR 15 Cal. 47. My answer to that is this : -- "The facts there are not the same as the facts here; and the Judges distinguished that case from the Privy Council case of Amir Hassan Khan v. Sheo Baksh Singh ILR 11 Cal. 6.

In my opinion, therefore, there is no real conflict between that case and the present.

One other argument seems to me to support the view at which we have arrived in this matter. I refer to sec. 646B, of the Code of Civil Procedure, which is in these terms:--"If it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes, as not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party, shall submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous."

In this case, therefore, to which this section clearly applies, the District Judge might have submitted the record himself, or if the parties had required it, must have submitted it to the High Court under this particular section. That seems to me to show that if the error were only an error of law, the case was not cognizable under sec. 622.

On these grounds the rule must be discharged with costs.

Banerjee, J.

I am of the same opinion. We are asked in this case under sec. 622 of the CPC to set aside an order of the District Judge of 24-Pergunnahs on appeal rever sing an order of the Munsif of Diamond Harbour, returning the plaint under sec. 57 of the Code of Civil Procedure, for presentation to the Court of Small Causes and the ground on which our interference is sought is that the learned District Judge is wrong in holding that the suit was cognizable by the Court of the Munsif, whereas he ought to have held that it was cognizable by the Court of Small Causes. The learned vakil for the Plaintiff, who appears to show cause, contends that sec. 622 does not apply to this case, firstly, because the order we are asked to set aside is one that is expressly declared to be final by the last paragraph of sec. 588 of the Code; secondly, because the suit, in the course of which that order was made, is in the view taken by the learned District Judge, one in which an appeal lies to this Court; and thirdly, because the learned District Judge, in making that order, has neither exercised a jurisdiction not vested in him by law, nor failed to exercise a jurisdiction so vested, nor acted in the exercise of his jurisdiction illegally or with material irregularity.

I am of opinion that the last paragraph of sec. 588 is no bar to our interference under sec. 622. If that were so, orders passed in appeal under sec. 588, though clearly made without jurisdiction, would remain absolutely protected from interference by this Court. I think sec. 588, by enacting that the orders passed under it shall be final, only bars appeals from those orders, but does not intend to bar any interference with them by revision under sec. 622. It was argued that if that was the meaning of the last paragraph of sec. 588, it would be superfluous, because no second appeal from orders passed under sec. 588 are allowed by any other provision of the Code. I think it would be far more reasonable to hold that the last paragraph of sec. 588 was enacted out of abundant caution, than to hold that it was intended to bar revision under sec. 622 of any order made, on appeal under that section. Nor do I think that the second reason urged by the learned vakil for the opposite party has much force. It may be that a second appeal lies to this Court from a final decree made in the suit, in the course of which the order now complained of was passed; but it is clear that no appeal lies to this Court in the miscellaneous case in which the order of the District Judge now under revision, was made; and that is sufficient, I think, to bring this case under the description of cases in which no appeallies to the High Court within the meaning of sec. 622. Were it otherwise, an order made without jurisdiction for the trial of a suit by a Court, which has no jurisdiction, would have to be submitted to, and this Court would be precluded from interfering with it until the suit has been tried out, and much time and money needlessly spent. That, I think, would not be a reasonable construction of that part of the section, which speaks of its being applicable to any case in which no appeal lies to this Court. But though the first two reasons urged on behalf of the Plaintiff in support of this contention that sec. 622 does not apply to this case, are not, in my opinion, tenable, I think the third reason relied upon is sound. The question is whether in making the order that is now complained of, the Court below has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.

The construction of these three clauses of sec. 622 has given rise to much conflict of opinion. It may, however, be now taken as authoritatively settled by the decision of the Privy Council in the case of Birj Mohun Thakur v. Rat Uma Nath Chowdhry I.L.R.20 Cal 8.

, that a case comes within the scope of first two clauses, not only where a Court has tried a case which it has no power to try, or has failed to try one which it has power to try; but also where it has applied a course of procedure which is not applicable to it, or has failed to apply to it a course of procedure which is applicable. But in whatever sense the first two clauses are taken, it cannot be contended that this case comes under either of them.

It remains then to consider whether the case can come under the third clause of the section which speaks of the Court having acted in the exercise of its jurisdiction illegally or with material irregularity.

As to this clause also it may now be taken as authoritatively settled by the decision of the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh I.L.R.II Cal.6, that where a Court has jurisdiction to decide a question, the mere fact of its having decided that question erroneously in point of law does not make its having so decided the case, amount to its having acted illegally or with material irregularity in the exercise of its jurisdiction.

No doubt the question then remains as to the class of cases'' to which this third clause is intended to apply. That question has been considered by a Full Bench of the Madras High Court in Kristamma Naidu v. Chapa Naidu I.L.R.17 Mad. 410, and the majority of the Full Bench were of opinion that the clause applies where there has been perversity in the decision; With all respect for the learned Judges, who took that view, I feel bound to say that I am unable to accept it and import into the section the element of perversity which is not implied in any way in the language of the section, nor can it be said that its scope is limited merely to cases of material irregularity of procedure, for the third clause not only refers to cases where a Court has acted with material irregularity, but also to those in which it has acted illegally.

I had occasion to consider this question in an unreported case to which reference was made in the course of the argument, viz, Rule No. 2468 of 1895 See ante, p. 617 In that case, after referring to certain of the reported cases upon the section, I observed as follows :--

The clause is evidently intended to authorize the High Courts to interfere and correct gross and palpable errors of subordinate Courts so as to prevent grave injustice in non-appealable cases, and it seems advisedly to have been expressed in indefinite language from the difficulty of defining exactly the classes of cases which may stand in need of such extraordinary interference. The question whether any case comes under the clause has in our opinion, to be determined with reference to the grossness and palpableness of the error complained of and to the gravity of the injustice resulting from it.

Be that as it may, and whatever may be the exact meaning and import of this third clause, I feel bound to say, having regard to the decision of the Judicial Committee in Amir Hassan v. Sheo Baksh Singh (i), that the present case is not one which comes wiihin the scope of the third clause of sec. 622. That being so, it becomes unnecessary to consider the further question whether the learned District Judge was right or wrong in holding that this suit was cognizable by the Small Cause Court. It may seen anomalous that where a court acts without jurisdiction, it may be set right under sec. 622, but where it directs another court to do so, its order is not open to revision under that section. But the anomaly, so far as cases like the present are concerned, has been removed by sec. 646B, which shews that the remedy in such a case, supposing the Petitioner''s contention to be right that the case was triable by the Court of Small Causes, lies in the course prescribed by that section, and not in an application under sec. 622.