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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner was subjected to an order of eviction passed by the Estates Officer under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ("the Act"). The petitioner appealed under Section 9 of the Act to the District Judge, Jammu; the appeal was transferred for disposal to the Additional District Judge, Jammu. While the appeal was pending before the Additional District Judge, the petitioner filed an application under Section 113 of the Code of Civil Procedure (CPC) seeking that certain constitutional points involved in the appeal be referred to the High Court for decision and prayed that the reference be decided before hearing the main appeal. By an interim order dated 19 June 1976 the Additional District Judge refused to hear the matter piecemeal, observing that the constitutional points were already incorporated in the memorandum of appeal and therefore would hear the appeal as a whole; the order implied that any decision on whether to make a Section 113 reference was deferred until the appeal on merits.

The petitioner challenged that interim order by way of a revision petition under Section 115 CPC, arguing (as framed in the opinion) that the Additional District Judge had failed to exercise jurisdiction vested in him by law and was obliged to decide the Section 113 application before proceeding. The respondent raised two preliminary objections to maintainability of the revision: (1) that no revision under Section 115 CPC lies against an order of the appellate authority under the Act because the appellate authority is only a persona designata and not a subordinate court answerable to the High Court; and (2) that the impugned order was an interim order and not "a case decided" within the meaning of Section 115 CPC.

Legal Issues Presented

  1. Whether a revision under Section 115 of the Code of Civil Procedure can be filed against an order passed by the appellate authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 — specifically, whether the District Judge/Addl. District Judge acts as a persona designata or as a subordinate civil court when exercising powers under Section 9 of the Act.
  2. Whether the interim order dated 19 June 1976 by the Additional District Judge — which deferred determination of the petitioner's Section 113 CPC application to the hearing of the appeal — amounts to "a case decided" within the meaning of Section 115 CPC so as to permit revision by the High Court.
  3. Whether the Additional District Judge had failed to exercise jurisdiction vested in him by law by not deciding the Section 113 CPC application prior to hearing the appeal (as contended by the petitioner).

Arguments of the Parties

Petitioner's Arguments

  • The learned Additional District Judge failed to exercise jurisdiction vested in him by law and was obliged to decide the Section 113 CPC application (seeking reference of constitutional points to the High Court) before proceeding with the appeal.
  • The District Judge exercising powers under Section 9 of the Act acts as a subordinate court and not as a persona designata; accordingly, an order passed by the District Judge/Addl. District Judge is revisable by the High Court under Section 115 CPC. Reliance was placed on a Full Bench decision of the Allahabad High Court (AIR 1964 All 562 (FB)) and a Full Bench authority of the Jammu & Kashmir High Court (1971 JKLR 157 : AIR 1971 J. & K. 76).

Respondent's Arguments

  • No revision under Section 115 CPC can be filed against an order passed by the appellate authority under the Act because the appellate authority (District Judge/Addl. District Judge) is only a persona designata and not a court subordinate to the High Court; therefore, Section 115 CPC does not apply. Reliance was placed on decisions reported as AIR 1960 Pat 164 and AIR 1966 Madh Pra 7.
  • The impugned order of 19 June 1976 is merely an interim order and is not "a case decided" within the meaning of Section 115 CPC; hence the revision petition is not maintainable.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
AIR 1960 Pat 164; AIR 1966 Madh Pra 7 Support the proposition that a District Judge acting under certain statutes may act as a persona designata rather than as a court subordinate to the High Court. Not followed for the facts of this case. The Court noted these authorities supported the respondent's submission but found them inapplicable in view of the Full Bench authority of this Court (1971 JKLR 157) and the nature of appointment under Section 9 of the Act.
AIR 1964 All 562 (Full Bench) Held that a Munsiff exercising jurisdiction under Section 7(e) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 acts as a court (not as persona designata) and his order is revisable by the High Court under Section 115 CPC. Relied upon by the petitioner; the Court cited it as supporting the view that judicial officers exercising specified statutory powers may act as courts rather than persona designata, but the Court principally relied on its own Full Bench authority to resolve the persona designata issue here.
1971 JKLR 157 : AIR 1971 J. & K. 76 (Full Bench of this Court) Held that whether an authority is persona designata or a court depends on the nature of duties and manner in which they are performed; if empowered to act judicially with "all the trappings of a court" and bound by rules of evidence, the appointment is as a court. Adopted as binding. The Court applied this test and concluded that the District Judge hearing appeals under Section 9 of the Act acts as a civil court subordinate to the High Court and not as persona designata, thus making orders revisable under Section 115 CPC.
Bibi Gurdevi v. Chaudhri Mohammad Baksh, AIR 1943 Lah 65 (Full Bench) Held the word "case" in Section 115 is wide enough to include interlocutory orders deciding substantial questions and thus such orders may be revisable if conditions of clauses (a)–(d) are satisfied and gross injustice would result otherwise. Cited in the discussion on the meaning of "case decided" to show one line of authority treating interlocutory orders as capable of attracting revisional jurisdiction when substantial rights are adjudicated.
Budhoo Lal v. Mewa Ram, AIR 1921 All 1 (Full Bench) Held that the word "case" in Section 115 does not include an issue or part of a case and therefore does not include interlocutory orders; High Court cannot revise interlocutory orders in suits. Discussed as an authority taking the opposite view; ultimately treated as overruled by subsequent Supreme Court authority (Major S.S. Khanna v. Dillon) and not followed.
ILR (1953) Hyd 762 : AIR 1954 Hyd 66 (Full Bench) Held only those orders in pending actions can be revised which are not open to appeal and are made in proceedings that can be regarded as independent and separate from the suit. Not adopted as the controlling view; discussed as part of the divergence of views on "case decided".
Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 Supreme Court held "case" includes part of a case; revisional jurisdiction may be exercised in respect of interlocutory orders that decide substantial questions, subject to discretionary considerations (interlocutory character, availability of alternate remedies, equities). Applied as authoritative on the meaning of "case decided". The Court used this decision to conclude that "case decided" can include part of a case but the order must adjudicate a substantial right or claim; this guided the decision that the impugned order here was not a "case decided".
Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., (1969) 2 SCC 201 : AIR 1970 SC 406 Explained that not every order in the course of a suit amounts to a "case decided"; a "case is decided" only when the court adjudicates some right or obligation of the parties in controversy. Cited to support the proposition that an order refusing to hear piecemeal arguments, or otherwise deferring consideration, does not necessarily amount to a "case decided". The Court relied on this to hold the impugned order was not revisable under Section 115.

Court's Reasoning and Analysis

The Court proceeded in two analytical stages corresponding to the respondent's two preliminary objections.

1. Persona designata issue (whether Section 115 CPC revision lies):

  • The Court examined Section 9 of the Act and noted that an appeal lies to "the District Judge of the District concerned" without naming a specific District Judge; therefore the appointment is by virtue of the office held, not by name in an individual capacity.
  • The Court explained the concept of "persona designata" as an appointment in an individual's personal capacity, contrasted with appointment by reason of office or post. The nature of duties and the manner of their performance are relevant to determine whether an authority acts as persona designata or as a court.
  • The Court relied on its own Full Bench decision (1971 JKLR 157 : AIR 1971 J. & K. 76) which states that if the presiding officer is selected as an authority and empowered to act judicially with the trappings of a court and bound by rules of evidence, the appointment is as a court and not as a persona designata.
  • Applying that test, the Court held that the District Judge, when hearing appeals under Section 9 of the Act, acts as a civil court subordinate to the High Court (appointment by virtue of office), and not as persona designata. Consequently, the objection that Section 115 CPC does not apply was overruled.

2. "Case decided" issue under Section 115 CPC (whether the interim order is revisable):

  • The Court analysed the text of Section 115 CPC and emphasised that revisional jurisdiction is available only in cases which satisfy both parts of the section: (a) there must be "a case decided" by a subordinate court in which no appeal lies; and (b) one or more circumstances in clauses (a)–(d) (exercise of jurisdiction not vested, failure to exercise vested jurisdiction, illegal exercise or material irregularity, or failure of justice) must be attracted for the High Court actually to exercise its jurisdiction.
  • The Court surveyed divergent authorities on the meaning of "case decided": some High Courts (and decisions such as Bibi Gurdevi) read "case" widely to include interlocutory orders deciding substantial questions; other decisions (e.g., Budhoo Lal) took a narrower view; the Supreme Court in Major S.S. Khanna v. Dillon resolved the divergence by holding that "case" includes part of a case and that revisional jurisdiction may lie in respect of interlocutory orders that decide substantial questions, subject to discretionary considerations.
  • From Major S.S. Khanna and Baldevdas Shivlal, the Court distilled the test: an order amounts to a "case decided" if it determines some right or claim between the parties which is legally enforceable; mere procedural or purely incidental interlocutory orders (adjournments, directions to furnish particulars, refusals to hear piecemeal) do not qualify.
  • Applying that test to the interim order dated 19 June 1976, the Court found the Additional District Judge had not adjudicated any right or obligation between the parties. The order only deferred consideration of the Section 113 application until the appeal would be heard on merits because the constitutional points were already included in the memorandum of appeal. Consequently, the order did not decide a substantial question or determine a legally enforceable right and therefore was not a "case decided" within Section 115 CPC.
  • On this basis the Court concluded the revision petition was not maintainable on the second ground and dismissed the revision petition on merits (since the order was not revisable under Section 115 CPC). The Court also noted discretionary considerations and permitted the Additional District Judge to refer the matter under Section 113 CPC later if he deemed it necessary.

Holding and Implications

Holding: The revision petition is DISMISSED.

Implications and direct effects:

  • The Court held that the District Judge, while hearing appeals under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, acts as a civil court subordinate to the High Court and not as a persona designata; therefore orders passed by that appellate authority are in principle revisable under Section 115 CPC (subject to the "case decided" requirement and clauses (a)–(d)).
  • The Court held that the interim order of 19 June 1976 — deferring consideration of the Section 113 CPC application until the hearing of the appeal — did not amount to "a case decided" within the meaning of Section 115 CPC because it did not adjudicate any substantial legal right between the parties; therefore the revision under Section 115 CPC was not maintainable on this ground and the petition was dismissed.
  • Practical directions given by the Court (direct effect on the parties): no order as to costs; parties were directed to appear before the Additional District Judge, Jammu, on 30 October 1976 for a date to continue arguments; the Additional District Judge remained free to make a reference to the High Court under Section 113 CPC if, in his view, the facts and law warranted such a reference.
  • No broader new precedent was expressly declared by the Court beyond its application of existing authorities; the decision applies the established test (as stated in the Full Bench of this Court and the Supreme Court) to the facts and disposes of the revision petition accordingly.
Show full summary ...

    Badrinath Gupta v. Estates Officer (Controller Of Aerodromes) .

    1. The circumstances under which the present revision petition has been filed in this court may be first noticed:

    2. The petitioner against whom an order of eviction was passed by the respondent, Estates Officer, under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act of 1971 (Central Act) (hereinafter called ‘the Act’) filed an appeal under Section 9 of the Act before the learned District Judge, Jammu, who transferred the same for disposal to the learned Addl. District Judge Jammu. During the pendency of the appeal before the learned Addl. District Judge, the petitioner filed an application under Section 113 of the CPC with a prayer that certain constitutional points which are involved in the appeal may be referred to the High Court for decision. It was prayed in the application, that the same be decided first before hearing the main appeal. The learned Addl. District Judge rejected this prayer on 19th June, 1976 by observing that the constitutional points mentioned by the petitioner in his application have already been incorporated by him in his memo of appeal and therefore it was not desirable to hear the appeal in parts. The learned Judge observed that he would hear the appeal as a whole and not in parts. Although, it was not expressly mentioned in the order of 19th June, 1976 but the order implied that the learned Judge had deferred the determination whether any reference was required to be made to the High Court under Section 113 of the CPC to the time when the appeal would be heard on merits. The learned counsel for the petitioner has challenged this interim order dated 19th June, 1976 on the ground that the learned Addl. District Judge has failed to exercise the jurisdiction vested in him by law as he was obliged to first decide the application filed by the petitioner under Section 113 of the CPC before proceeding further with the matter. The other ground of attack mentioned in the revision petition based on the Presidential order was not pressed during the arguments by the learned counsel for the petitioner.

    3. Shri R.P Bakshi, learned counsel, appearing for the respondent has taken two preliminary objections to the maintainability of the present revision petition. The first objection is that no revision under Section 115 of the CPC can be filed against an order passed by the appellate authority under the Act. According to the learned counsel for the respondent, the appellate authority (District Judge/Addl. Dist. Judge) is only a persona designata and not a court subordinate to the High Court, and therefore, no revision would lie under Section 115 of the CPC. Reliance has been placed in support of this submission on AIR 1960 Pat 164 and AIR 1966 Madh Pra 7. These two authorities undoubtedly support the case of the respondent that the District Judge while acting under certain ‘Acts’ acts only as a persona designata and not as a court subordinate to the High Court.

    4. Shri Sethi, learned counsel for the petitioner, has in reply submitted that the District Judge exercising powers under Section 9 of the Act does not act as a persona designata but as a subordinate court and as such a revision petition against his order under Section 115 of the CPC is competent. Reliance has been placed in this connection on a Full Bench authority of Allahabad High Court reported as AIR 1964 All 562 (FB) wherein it was held that a Munsiff exercising jurisdiction under Section 7(e) of the U.P (Temporary) Control of Rent and Eviction Act, 1947 acts as a Court and not as a persona designata and his order is revisable by the High Court under Section 115 of the CPC. Reliance has also been placed on a Full Bench authority of this Court reported as 1971 JKLR 157 : (AIR 1971 J. and K. 76).

    5. I have given my consideration to the respective arguments of the learned counsel for the parties on this question.

    6. A perusal of Section 9 of the Act shows that an appeal lies to the District Judge of the District concerned. This District Judge is not prescribed as an appellate authority by his name and no District Judge has been singled out from the class of District Judges to whom the appeals may lie under Section 9 of the Act. The term ‘persona designata’ implies the appointment of a person or the selection of a person in his individual and personal capacity as opposed to his capacity as a member of a particular class. With a view to determine whether the appointment of a person has been made as a persona designata or as a particular member of a class, it is necessary to find out whether the person appointed has been appointed by his name only or has he been appointed because of his occupation, profession or the post held by him. In the Full Bench authority of our High Court, 1971 JKLR 157 : (AIR 1971 J. and K. 76) (supra) it was held the question whether an authority has been appointed as a Persona designata or as a court depends also on the nature of the duties and the manner in which the duties are performed by the authority concerned. Their Lordships went on to hold:

    “……… if the appointment is by name in the individual capacity of the officer he is persona designata; if the Presiding Officer of a Civil Court is selected as an authority and empowered to act judicially and possesses all the trappings of a court and has to abide by the rules of evidence, the appointment is as a court and not as a persona designata.”

    7. In view of this clear pronouncement of the Full Bench of this court, there remains no manner of doubt to hold that the District Judge while hearing the appeal under Section 9 of the Act does not act as a persona designata but acts as a Civil Court subordinate to the High Court. The District Judge has been prescribed the appellate authority not in his personal or individual capacity but by virtue of the post that be is holding and no District Judge has either been designated as the appellate authority by name nor has any District Judge been singled out for functioning as the appellate authority. Moreover, the nature of his duties enjoin upon him to act judicially and he possesses all the trappings of a Court, in the face of the binding authority of this Court, the rulings cited by Shri Bakshi cannot come to his aid. I would, therefore, hold that the District Judge while acting under Section 9 of the Act, acts as a court subordinate to the High Court and not as a persona designata. I, therefore, do not find any force in the objection raised by the learned counsel for the respondent that the District Judge hearing the present appeal is only a persona designata and his order is not revisable under Section 115 of the CPC and overrule the said objection.

    8. The second preliminary objection raised by Shri R.P Bakshi, learned counsel for the respondent is that the order of the learned Addl. District Judge is only an interim order and is not ‘a case decided’ within the meaning of Section 115 of the CPC and on that account the revision petition is not competent or maintainable. This objection has been strongly controverted by the learned counsel for the petitioner who has vehemently argued that the interim order refusing to make a reference under Section 113 of the CPC amounts to ‘a case decided’ as the learned Addl. District Judge has failed to exercise the jurisdiction vested in him by law.

    9. With a view to appreciate this controversy it is necessary to analyse Section 115 of the CPC. Section 115 reads as under:

    “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, and if such subordinate court appears:

    (a) to have exercised a jurisdiction not vested in it by law; or

    (b) to have failed to exercise a jurisdiction so vested; or

    (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity;

    (d) to have caused failure of justice.

    the High Court may make such order in the case as it thinks fit.”

    10. According to Mr. Sethi, learned counsel for the petitioner the two parts of Section 115 are not distinct and the second part is only explanatory of the first part. His precise argument is that if a given order shows that Cls. (a) to (d) of Section 115 of the Code are attracted, then it would be a ‘case decided’ irrespective of the fact that it may only be an interim order, which is capable of being revised by the High Court under Section 115. Shri Bakshi on the other hand submits that there must be a case which has been decided before the Court would enquire whether there has been any violation of clauses (a) to (d) so as to exercise its revisional jurisdiction. He submits that the two parts of Section 115 of the CPC are separate and distinct.

    11. From the phraseology of Section 115 of the CPC, it appears that the revisional jurisdiction of the High Court under this Section can be invoked in cases in which no appeal lies to the High Court provided the case has been decided by any Court subordinate to it and that subordinate court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, or where failure of justice has been occasioned. The High Court in my opinion, has no power to interfere in revision under this section except in the four classes of cases mentioned above, which form clauses (a) to (d) of the section.

    12. The first condition envisaged under Section 115 of the CPC is that there is a ‘case decided’ by the subordinate court in which no appeal lies. The question, therefore, that arises for determination is as to what is meant by the term ‘case decided.' This term has not been defined in the Code of Civil Procedure and the word ‘case’ appears to be more comprehensive than the word ‘suit’ and may therefore, include decision on a part of the suit as opposed to the decision of suit as a whole. There appears to be divergence of opinion on the question whether an interlocutory order in a pending proceeding amounts to ‘a case decided’ within the meaning of Section 115. Some of the High Courts have held that the word ‘case’ includes part of a case also implying thereby that it includes interlocutory orders passed in a suit and in case the conditions envisaged in the clauses (a) to (c) of Section 115 of the CPC. (applicable to rest of the country) are satisfied, the High Court may exercise its revisional jurisdiction to revise that interlocutory order.

    13. A Bench of Seven Judges of the High Court of Lahore, in Bibi Gurdevi (represented by Prithvi Raj Khosla) v. Chaudhri Mohammad Baksh, AIR 1943 Lah 65 (FB) held as under:—

    “The word ‘case’ in Section 115 is wide enough to include interlocutory orders passed in a suit. An order by the Court staying a suit before it on receipt of a robkar from the Debt Conciliation Board under Section 25 of the Punjab Relief of Indebtedness Act, is a “case decided” within the meaning of Section 115 and therefore is revisable by the High Court

    ……… The word ‘case’ in Section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind, as distinguished from purely formal and incidental order, is a ‘case decided’ within the meaning of Section 115 but it will be open to revision only if the other conditions expressly laid down in Section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.”

    14. A Full Bench of the Allahabad High Court in Budhoo Lal v. Mewa Ram, AIR 1921 All 1 (FB), however, held that the word ‘case’ in this section does not include an issue or part of a case and that it does not therefore include an interlocutory order and that the High Court has no power to interfere in revision with interlocutory orders passed in the suits.

    15. A Full Bench of the Hyderabad High Court in ILR (1953) Hyd 762 : (AIR 1954 Hyd 66) has held that only those orders in a pending action can be revised which are not open to appeal either directly or indirectly and are made in a proceeding which can be regarded as independent and separate from the suit. Some High Courts in the country have adopted the view of Lahore High Court, while others have followed the view of Allahabad and Hyderabad High Courts. I would refrain from reproducing the various judgments as the term “case decided” came up for consideration before their Lordships of the Supreme Court in Major S.S Khanna v. Brig. F.J Dillon, AIR 1964 SC 497. Their Lordships after a review of various authorities held that the expression ‘case’ includes a part of a case and that there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the Page: 42ultimate decree or order passed in the case provided the conditions envisaged under Section 115 of the CPC are satisfied. In the case before their Lordships of the Supreme Court, one Brig. Dillon had filed a suit in the court of Subordinate Judge at Delhi for the recovery of some amount from Major Khanna alleging that he had at the request of Major Khanna advanced a certain amount, as short term loan, which Major Khanna had promised to repay but had failed to repay. Major Khanna pleaded that he had not borrowed any loan from Brig. Dillon and that the, amount claimed in the action was advanced out of the joint funds, belonging to the partnership to which Brig. Dillon and Maj. Khanna were partners. On the pleadings of the parties the trial Court framed a preliminary issue “whether this suit is not maintainable and the plaintiff is not entitled to institute this suit as alleged in Paras 15, 16, 17 and 18 of the written statement?” After hearing the learned counsel for the parties, the trial court held that the suit being by a partner against another partner of a dissolved partnership firm (which was in the process of winding up) was not maintainable. Aggrieved against the order of the trial court holding that the suit was not maintainable, the plaintiff filed a revision petition in the High Court of Punjab under Section 115 of the CPC. The High Court accepted the revision petition and set aside the order of the trial court and directed that the suit be heard and disposed of according to law. With Special Leave an appeal was taken to the Supreme Court by Major Khanna against the order the High Court primarily on the ground that the High Court could not have exercised its revisional jurisdiction under Section 115 of the CPC as there was no “case decided” and the impugned order was only an interlocutory order. Their Lordships dismissed the appeal and while considering the jurisdiction to be exercised under Section 115 of the CPC observed:—

    “The section consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises i.e there is a case decided by a subordinate court in which no appeal lies to the High Court, the second sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of ‘any case which has been decided’. The expression ‘case’ is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court. It includes a proceeding in a Civil Court in which the jurisdiction of the court is invoked for the determination of some claim or right legally enforceable …………”

    It was also observed by their Lordships:

    “……… The expression ‘case’ is a word of comprehensive import, it includes civil proceedings other than suits and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression ‘case’ as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.” Their Lordships expressly overruled the judgment of the Allahabad High Court AIR 1921 All 1 (FB) (supra) and observed:—

    “It may be observed that the majority view of the High Court of Allahabad in Budhulai v. Mewa Ram, founded upon the supposition that even though the word ‘case’ has a vide signification the jurisdiction of the High Court can only be invoked from an order in a suit, proceeded upon the fallacy that because the expression ‘case’ includes a suit in defining the limits of the jurisdiction conferred upon the High Court the expression ‘suit’ should be substituted in the section when the order sought to be revised is an order passed in a suit. The expression ‘case’ includes a suit but in ascertaining the limits of the jurisdiction of the High Court there would be no warrant for equating it with a suit alone.”

    It was then observed:

    “That is not to say that the High Court is obliged to exercise its jurisdiction when a case is decided by a subordinate court and the conditions in clauses (a), (b) or (c) are satisfied. Exercise of the jurisdiction is discretionary; the High Court is not bound to interfere merely because the conditions are satisfied. The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court, even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction.”

    16. From the observations of their Lordships of the Supreme Court, it is apparent that the term ‘case decided’ is not confined to the decision of the case as a whole but would also include part of a case which decides a substantial question in controversy between the parties. Page: 43The touch-stone, therefore, would be to find out if the order under revision has determined some right or claim between the parties which is legally enforceable. If it has, it would be a ‘case decided’ and jurisdiction under Section 115 of the CPC may be invoked but if it does not decide any such substantial right or question it will only remain an interim order and would not amount to a “case decided” i.e no revision would lie against orders adjourning the case; fixing some date or asking for better particulars etc.

    17. I am unable to accept the argument of Shri Sethi that if an order attracts clauses (a) to (d) of Section 115 of the CPC that order would amount to a case decided or that the two parts of section are not distinct and separate. To so read Section 115 of the CPC would be doing violence to the language of the section. The revisional jurisdiction can be invoked only if the order under revision amounts to ‘a case decided’. The clauses (a) to (d) of Section 115 of the CPC set out the circumstances in which the jurisdiction is to be exercised by the High Court. The two parts of the section are thus not only separate and distinct but have entirely different ambit and role. The first part prescribes the basic conditions for invoking the revisional jurisdiction, while the second part enumerates the circumstances in which that jurisdiction may be exercised, existence and satisfaction of jurisdiction. Although for invoking the revisional jurisdiction the condition prescribed in the first part of the section would suffice, yet for exercising the jurisdiction, in addition to the satisfaction of the condition laid in part first, the attraction of any one or more of clauses (a) to (d) is also required.

    18. Coming now to the merits of the present case, the learned Addl. District Judge has not disposed of the application of the petitioner under Section 113 of the CPC and has not declined to exercise the jurisdiction. A careful perusal of the order shows that he has only deferred the consideration of the question involved in the application till the hearing of the appeal as a whole, wherein in the memo of appeal the grounds of attack as given in the application under Section 113 of the CPC have also been incorporated. In that view of the matter the learned Addl. District Judge has not decided or determined any claim or right between the parties. He has merely adjourned the decision on the application till after the consideration of the arguments in the appeal and in that view of the matter, I do not see how the order can be termed as a ‘case decided’ within the meaning of Section 115 of the CPC. The learned Addl. District Judge has not adjudicated upon any right or obligations in controversy between the parties and refusing to hear piecemeal arguments in appeal cannot be termed as a ‘case decided’. Reference in this connection may be made with advantage to the judgment of their Lordships of the Supreme Court in Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., (1969) 2 SCC 201 : AIR 1970 SC 406, wherein it was observed:

    “……… to interpret the expression ‘case’ as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But every order of the court in the course of a suit does not amount to a case decided. A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a ‘case decided’ within the meaning of Section 115. By overruling an objection to a question put to a witness and allowing the question to be put, no case is decided.”

    (Emphasis supplied)

    19. In view of the above discussion, I find great deal of force in the second objection raised by Shri Bakshi learned counsel for the respondent that the interim order of the learned Addl. District Judge dated 19th June, 1976 refusing to hear piecemeal arguments and directing that the question involved in the application which are also the grounds in the memo of appeal, shall be heard at the time of hearing the appeal, does not amount to ‘a case decided’ and is not open to revision under Section 115 of the CPC. The revision petition is accordingly dismissed but in the circumstances of the case there will be no order as to costs.

    20. Parties through their learned counsel are directed to appear before the Addl. District Judge, Jammu, on October 30, 1976 when a date for continuation of arguments would be fixed by the learned Judge. I must, however, make it clear that it shall be open to the learned Addl. District Judge to make a reference to this court under Section 113 of the CPC if he so deems it necessary, and if the facts and law so warrant in his opinion, and the dismissal of this revision petition shall not come in his way.

    21. Revision dismissed.

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    Badrinath Gupta v. Estates Officer (Controller Of Aerodromes) .
    (Oct 19, 1976)