Mukerji, J.:— This is an application to revise an order of the lower appellate Court dated 5th December 1927, by which the Court allowed an application made by the plaintiffs in the suit, who are the respondents before us, to withdraw the suit instituted by them with liberty to bring a fresh suit.

2. The facts which led to that application are briefly these: The plaintiffs came to Court with the prayer that they might be declared to be the owners of certain plots by virtue of a certain ancient gift. In the plaint they said that they were paying a certain amount of money periodically to the zamindars but that they were paying the same as being their share of the revenue payable to the Government, and that they are paying the same to the Government through the zamindars. When the parties were examined by the Court for framing the issues, on 18th December 1926, one of the plaintiff's said: “muzhir zamindar ko lagan deta tha.” The defendants to the suit, who are the applicants before us, were the zamindars. They opposed the claim on the ground that the plaintiffs were nothing but tenants of the lands in question. The learned Subordinate Judge who heard the suit found that it had not been proved that the plaintiffs were proprietors of the land. On this finding, he dis missed the suit. An appeal was filed by the plaintiffs. The appeal was heard on 1st December 1927. Then the counsel for the appellants asked for a day's time to produce some rulings. The case was ordered to be put up on 3rd December 1927. On that date plaintiffs made an application, for withdrawal of the suit with liberty to sue again. On that date the application was not heard because the counsel for the defendants were not present. The application was taken up before the counsel for the parties on 5th December 1927. The arguments of the counsel were heard, their statements were taken down and the learned Judge passed the order which is now being complained of before us.

3. The learned counsel for the defendants applicants has urged that the learned Judge had no jurisdiction no pass the order that he did pass. The ground for this argument is thus stated: The Court had jurisdiction to pass the order only in case the provisions of O. 23, R. 1, were complied with by the plaintiff. If these were not properly complied with the Court below had no jurisdiction to pass the order.

4. On the other hand, for the respondent it has been urged that the Court had jurisdiction to pass the order it did pass and, therefore, this Court having no appellate jurisdiction, could not interfere even if the Court below should have been wrong in its order.

5. We have to see which of these arguments is sound.

6. According to the authorities in this; Court it may be takes to be settled law, that where a Court passes an order granting the plaintiff permission to withdraw the suit with liberty to sue again, bub gives no reasons whatsoever for its order, this Court has interfered on the ground that the Court below has: not applied its mind to the application and has, therefore, passed an order which could be revised under Section 115 of the CPC. This case is not one of the cases mentioned above. In the case before us, as I have already pointed out, the learned Judge heard the appeal almost to its completion. The only thing that remained to be done was the production by the plaintiffs' counsel of a ruling. When the application for withdrawal with liberty to sue again was put in, the learned Judge heard the counsel for the parties, and then passed an order. The order is couched in no less than 20 lines of our paper book. There can be no doubt that the order is one which does not satisfy me as a desirable order, but I have no doubt that the Judge did apply his mind to the application, and did all that he was capable of doing. It is not the case that he wanted to avoid hearing the appeal. He had heard the appeal almost to its conclusion and all that remained to be done was to dictate an order. If we analyse the order we shall sea that he found, whether rightly, or wrongly that there was a formal defeat in the suit. Much has been said before us to indicate that in this the learned Judge made an error. This may be so, but I would not stop to enquire if this was so because I am not sitting as a Court of appeal. Then we find that the Judge looked into the question of desirability of passing the order, in view of the possibility of evidence being concocted in a subsequent suit. The learned Judge having weighed this matter, thought that there was no fear of introduction of false evidance in future, because, in the main the case had to be decided on documentary evidence. Having said all that the learned Judge passed the order complained of. In my opinion it was within the competence of the learned Judge to pass the order, though, as I have said I myself might not have passed an order similar to his order.

7. That being the position, the question is whether the High Court has jurisdiction under Section 115 of the CPC to interfere with such an order. I am clearly of opinion that the High Court has not. There must always be a distinction between an appellate jurisdiction and a revisional jurisdiction. When the legislature shuts out an appeal, it does that with a certain motive. When revisional powars are given, they are given in guarded words, and although sometimes it may be difficult to decide whether a case comes or not within the revisional jurisdiction of the High Court, there can be no doubt that the revisional jurisdiction is always distinct from the appellate jurisdiction.

8. The learned counsel for the applicants has urged that in order to possess jurisdiction the Court below should have had before it the conditions mentioned in O. 23, R. 1 of the CPC. I intirely disagree with this view. If the Court was authorised to permit the plaintiffs to withdraw the suit with liberty to sue again, the mere fact that the Court thought that the circumstances were present which would justify it to pass an order in plaintiffs' favour, would be enough to make the order, order being within its competence and jurisdiction.

9. The limit of interference placed by the Code of Civil Procedure on the High Court's power to interfere in its revisional jurisdiction is confined to a non-exercise of jurisdiction where jurisdiction exists, and exercise of jurisdiction where it does not exist, and to irregular exercise of jurisdiction by the subordinate Courts. The correctness or error in a decision on a question of fact and law committed by the subordinate Courts will not give jurisdiction to the High Court to interfere under its revisional powers. This was decided in Balkrishna Udayar v. Vasudeva Ayyar . A.I.R 1917 P.C 71 by their Lordships of the Privy Council.

10. In this Court there are at least two cases decided by Division Benches which take the same view as I have taken above. These are the cases of Jhanku Lal v. Bisheshar Das . [1918] 40 All. 612, and Ratan Lal v. Mahommed Hamidullah Khan . A.I.R 1921 All. 65.. The latter case was referred to two Judges, because it was thought that there was some conflict of opinion as regards the limits of the revisional powers of the High Court. The learned Judges, who decided the case of Batan Lal, pointed out that no conflict really existed. At p. 49, line 2, of the report, the words “will not” are interpreted by me as amounting to “cannot,” the reason being want of power on the part of the High Court. The Calcutta High Court in a Full Bench case Hriday Nath Roy v. Ramehandra Barna Sarma . A.I.R 1921 Cal. 34 has taken the same view.

11. In the result I am of opinion that this Court has no power to interfere under Section 115 of the CPC with the order of the learned District Judge.

12. I will, for the reasons given above, dismiss the application with costs.

Boys, J.:— This is an application under Section 115 of the CPC. The plaintiffs came into Court asking for a declaration that they were the owners of certain plots. The defendants contended that the plaintiffs were tenants. Admittedly the plaintiffs paid periodically a certain sum of money to the zamindars. The plaintiffs described this sum as their quota towards the revenue. The trial Court held that the sum could not be revenue for it exceeded the portion of the revenue for which the plaintiffs might be liable. The plaintiffs appealed, and after the whole case had been argued, asked permission to withdraw with leave to being a fresh suit. This application was made under O. 23, R. 2, and it could only properly be granted if the Court was satisfied that the suit must fail by reason of some formal defect or if it was satisfied that there were “other sufficient grounds” for giving the permission. It is beyond dispute that any “other sufficient ground” must be ejusdem generis with a formal defect. The lower Court I granted the permission.

13. The question arises whether we have any power and what power to interfere with this order.

14. I may give at once my reasons for holding that the order was a bad order and should not have been passed. The plaintiffs' application saying that they wanted to withdraw if the Court would give them permission to bring a fresh suit was stated as follows:

“In the case noted above it is submitted; that on account of the relief being vague a plea for the jurisdiction of the Court has been taken on behalf of the defendant-respondents. As a matter of fact the capacity of the plaintiffs is that of an inferior proprietor. Under the present circumstances on account of there being legal defect it is apprehended that the case will be lost. It is therefore prayed that the plaintiffs may be allowed to withdraw the case with permission to bring a fresh suit.”

15. The application was opposed and the order of the Court was as follows:

“It appears that one of the pleas taken relates to the jurisdiction of the civil Court. The plaintiff came with the allegation that he is a shankalapdar paying rent. He now say he pays land revenue. The frame of the suit is clearly defective. There is not much of oral evidence in the case. There is no fear of introduction of false oral evidence. All things, considered I am of opinion that this is a fit casein which permission should be granted. I therefore allow the application.”

16. Now the facts are that the plaintiffs did not come with the allegation that? they were shankalapdars paying rent. They did actually and definitely come with the allegation, i.e, they stated in their plaint, that they were paying revenue. The statement therefore in the order is at least inaccurate. Subsequently in their examination by the Court the plaintiffs described themselves as paying rent. The defence of course seized upon this. But the trial Court after discussing the point gave the plaintiffs the benefit of the doubt and did not decide the suit against them on the basis of the error alleged to have been committed by inadvertence by the plaintiffs in their oral examination. It dealt with the case as one in which the plaintiffs might be taken to have stated their case as being that they paid revenue. The suit therefore did not fail in the trial Court on the ground of the statement made by the plaintiffs in their oral examination that they paid rent. The next point I note is that the application for permission under O. 23, R. 1(2) was vague to a degree. It only referred to “the relief being vague” and did not say in what respect it was vague, and then it alleged “a legal defect” without specifying what the legal defect was, or in what way, if there was anything that could be described as a legal defect, that legal defect had prejudiced or was likely to prejudice the plaintiff. Further the permission was given at a very late stage of the case after the arguments in the appeal had been concluded, and this is a course which has been frequently deprecated.

17. I have stated these facts merely in order to show that I am of opinion that the order granting permission to file a fresh suit was one which should not have been passed.

18. The next question is whether this Court has any power to interfere with it in the exercise of its revisional jurisdiction conferred by Section 115 of the CPC. This Court cannot interfere under that section unless there has been a defect going to jurisdiction, or a material irregularity in the exercise of jurisdiction. It is in my view manifest that the Court had jurisdiction to make the order which it made. It had power to deal with the parties before it; it had power to deal with the subject-matter before it; and it had power to pass an order of the nature of the order which it passed, i.e, it had power to pass an order granting permission to file a further suit. The question whether in the particular circumstances of the case it rightly exercised its power is not a question going to jurisdiction. As to whether proper enue also is always an element of jurisdiction I need not here consider for no question of venue arises in the case.

19. The next question is whether in passing the order which it did in the particular circumstances of the case the Court committed a “material irregularity in the exercise of its jurisdiction.” With a view to arriving at the tests properly applicable to enable me to answer this question I have considered carefully, amongst others the following cases:

20. Robert Watson v. Collector of Rajshahyi . [1869] 19 M.I.A 160; Kharda Co. v. Durga . [1910] 11 C.L.J 45; Hiralal v. Udoychandra . [1912] 16 C.L.J 103; Bai Kashi Bai v. Shidappa . [1913] 37 Bom. 682; Khubchand v. Ajudhya . [1913] 11 A.L.J 733; Balakrishna v. Vasudeva; Jhanku v. Bisheshar; Hriday v. Ramchandra; Ratan v. Md. Hamidullah; Ganga v. Mt. Kishni . A.I.R 1925 All. 466; Kamta v. Ramratan . A.I.R 1926 All. 548.; Mahabir v. Muhammad Ali Khan, A.I.R 1927 All. 704; Kamta v. Bhagwan . A.I.R 1928 All. 98; Tikai v. Sheodayal . A.I.R 1928 Oudh 482; Ramsaran v. Radha . A.I.R 1929 Cal. 88.

21. In one of these cases, Kharda v. Durga, it was broadly stated that there was no doubt but that the High Court could interfere with “an improper order”; and there is a hint of a similar proposition in Ramsaran v. Radha. If that proposition is to be taken literally it is in my view much too broadly stated. I do not propose to examine the remainder of the cases in detail, but having studied them with are it appears to me that all or nearly all of them can be regarded, though it may not have been expressly so stated, as having been decided on one or other of two principles which I would state as follows:

22. The Court can be regarded as having committed “a material irregularity in the exercise of its jurisdiction” if either:

(a) it appears that it did not apply its mind judicially to the question before it, or; (b) if the materials before it were not such as could reasonably be held to be materials on which the Court might, rightly or wrongly, hold that there was a formal defect or other sufficient reason ejusdem generis with formal defects.

23. The first proposition seems to underlie such cases as Ratan v. Md. Hamidullah Ganga v. Mt Kishni; Kamta v. Ramratan and Kamta v. Bhagwan. In the case Kamta v. Ramratan, Daniels, J., applied the test as to whether the Court had applied a judicial mind, but did not apply the second of the two tests which I have suggested; and, as it appears to me, if that second test had been applied the decision might have been otherwise. In Kamta v. Bhagwan, the High Court found that the lower Court had not applied its mind judicially and took, as it appears to me, the proper course of setting aside the order and sending the case back to the lower Court, giving it an opportunity to re-hear the application and give its reasons.

24. The second proposition or test appears to me to emerge from the decisions in Robert Watson v. The Collector; Hiralal v. Udoychandra; Bai Kashi Bai v. Shidappa; Khubchand v. Ajodhya; Jhanku v. Bisheshar; Mahabir v. Muhammad Ali Khan, A.I.R 1927 All. 704 and Tikai v. Sheodayal.

25. Now applying these two sets to the facts that I have stated at the commencement of this judgment, I am unable to hold that the learned Judge of the appellate Court did not apply his mind judicially to the matter before him. Further I am unable to hold that the materials to which he applied his mind were not materials proper for consideration in determining whether there was a formal defect or other sufficient reason ejusdem generis with formal defects. These two conditions being satisfied, in my opinion this Court has no power to set aside the order of the lower Court merely because it may be of opinion that, applying its own mind judicially to the materials before the lower Court, it would have held that there was not in fact any formal defect or anything ejusdem generis. I would, therefore, dismiss the application.

26. By the Court:— The order of the Court is that the application is dismissed with costs.

V.B/R.K

27. Application dismissed.