Messrs Lakshmi Datt Rup Chand vs Messrs. Goverdhan Dass

Dua, J.—This revision is directed against an interlocutory order of a learned Subordinate Judge 1st Class Jullundur dated 15th July, 1964, disposing of the issue of jurisdiction in favour of the plaintiff and against the defendant who is the petitioner in this Court.

The suit instituted by the plaintiff-respondent was for the recovery of Rs 5,201.82 Paise as damages for breach of contract for the supply of certain goods. A preliminary issue raised on the defendant''s plea was that the Jullundur Court had no jurisdiction because no part of the cause of action arose within the territorial jurisdiction of that Court and that the Courts at Mirzapur in U.P. alone were competent to entertain the controversy arising out of the contract in question. The evidence produced by both the parties was recorded by the Court below and on appraisal of that evidence, the conclusion of the lower Court, which is vital on the issue, is in these words:

In Exhibit P. 2 it is explicitly stated that on the plaintiff''s accepting the quoted rates, the transaction would be deemed to be concluded. On perusal of the letter Exhibit P. 2, it is, therefore, quite clear that the offer for the supply of the goods emanated from the defendant and was accepted by the plaintiff at Jullundur, vide telegram Exhibit P.3. There is another letter Exhibit P. 4 on the record which is couched in similar terms. In Exhibit P. 4, there is a clear recital that the transaction will be concluded after the plaintiff accepted the offer contained therein. Thus the letters Exhibits P. 2 and P. 4 leave no doubt that for the two transactions in dispute, the contract was made at Jullundur as the offer for the supply of the goods was accepted by the plaintiff there.

On revision, the learned counsel for the defendant petitioner has tried to persuade me to re-appraise this evidence for myself and come to the finding that these documents do not justify the conclusion reached at by the Court below. In my opinion, it is not my function sitting as a Court of revision to appraise the evidence myself for coming to the conclusion contrary to that arrived at by the Court below. That is the function of the appellate Court which after the Court below has disposed of the suit may be seized of the whole case and came to its own conclusion on evaluating the entire evidence. In Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , Mahajan, J. (as he then was), speaking for the Court, discussed the scope of section 115, Code of Civil Procedure, and reproduced the following observations of the Judicial Committee in Venkatagiri Ayyangar v. Hindu Religious Endowments Board. Madras 76 I.A. 67 ;

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 on 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 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 on those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court on questions of fact or law.

Reference was also made to a later decision of the Judicial Committee in Joy Chand Lal Babu v. Kamalaksha Chaudhury 76. I.A. 131, in which the Board noted that some of the decisions of the Indian High Courts had prompted their Lordships of the Privy Council to observe that the High Courts had 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 on 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. The Supreme Court then proceeded to approve the observations of Bose, J. in AIR 1948 258 (Nagpur) where it was clarified that the words "illegal" and "material irregularity" do not cover either errors of fact or law. These words do not refer to the decision arrived at but to the manner in which it is reached. Applying this test to the case before me, I am unable to persuade myself to hold that the decision of the Court below is tainted with any such infirmity as would justify this Court''s interference on revision.

But this apart, it must not be forgotten that interference on revision is discretionary. In the case in hand, the learned Judge admitting this revision on 21st September, 1964 directed the revision to be set down for hearing in the first week of October. Perhaps, in view of this order, further proceedings were stayed. In any case, I am informed that the evidence of the plaintiff has been recorded in its entirety and all that remains to be done is recording of the evidence for the defendant, and apparently the defendant approached this Court after the plaintiffs evidence had been recorded and he was perhaps expected to produce his own evidence. Now in ease a decree is passed by the Court below either way, the parties would be entitled to go up in appeal to the learned District Judge and then to come to this Court on second appeal. The learned District Judge would be entitled to appraise the entire evidence to come to his own findings on questions of fact. To determine this question now on revision would clearly be an unsatisfactory way of disposing of this controversy. And then, I cannot lose sight of the fact that the plaintiff will have again to lead his entire evidence at Mirzapur. In view of these contingencies, I think it is wholly improper for me sitting on revision to express any opinion on the merits of the decision on this preliminary issue.

Section 21, Code of Civil Procedure, it may be remembered is applicable both to the appellate Court as well as to the revisional Court. Although the petitioner''s learned counsel has tried to argue that I should give a finding whether or not there has been a consequent failure of justice, as a result of the decision by the Court below on the preliminary issue, I think I must restrain myself from expressing any opinion either way because this matter will have to be agitated before the learned District Judge on appeal. It would be wholly unfair for me to express any opinion one way or the other which would influence the appellate Court in coming to its own decision on the evidence. I, however, cannot help remarking that defects relating to territorial jurisdiction are not treated with the same seriousness or strictness as defects relating to want of inherent jurisdiction. In Tarsema Textile Traders and Another Vs. Tarlok Singh Sadhu Singh, I had occasion to deal with this aspect. It was observed there that objection relating to territorial jurisdiction is taken out of the general principle that defect of jurisdiction in respect of the subject-matter cannot be cured even by consent and that the question of territorial jurisdiction is more or less placed at par with irregularities which would vitiate the order only if resultant failure of justice is also established.

Shri Jain has rightly pointed out that in the reported case evidence had been recorded on commission and it is perhaps on this account that I am disinclined to interfere on revision. One might argue that in the present case also it would be open to the defendant to have his evidence recorded on commission at Mirzapur if the circumstances justify it, but it is unnecessary for me to express any considered opinion on this point because all these aspects will have to be considered if and when the issue is raised before the appellate Court.

For the foregoing reasons, this petition fails and is dismissed. The respondent must have his costs because obviously this revision has been filed to delay the proceedings. The order was passed on 15th July, 1964 and 17th July, 1964 was fixed for further proceedings. The copy was not even applied for till as late as 19th August, 1964 and it is obvious that the sole object is to delay the proceedings.

Parties are directed to appear in the Court below on 22nd February, 1963 when another short date would be given for further proceedings in accordance with law and in the light of the observations made above. Records be sent back without undue delay.