The Judgment of the Court was as follows:—
Cuming, J.:— The facts are as follows:—The facts petitioner brought a suit No. 12 of 1926 in the Court of the Additional Judge of Barisal.
The 19th May was fixed for the hearing of the suit. Petitioner did not appear and the suit was then dismissed for default.
He then made the usual application under Or. 9, r. 9. This application was fixed for hearing on 14th August.
He again failed to appear and the application was dismissed for default.
He then again applied to have the dismissal set aside under sec. 151 and Or. 9, r. 9.
The learned Judge heard the pleaders. He held that the petition could not be held to be under Or. 9, r. 9 because in his opinion Or. 9, r. 9 could not be applied with the help of sec. 141 to the case of an application under Or. 9, r. 9 which had been dismissed for default and he therefore rejected the petition. The Petitioner moved this Court and obtained this Rule.
Mr. James who appears to oppose the Rule contends that sec. 115 of the Civil Procedure Code has no application to the present case. The Munsif, if lie wrongly dismissed the petition holding that it was not maintainable under Or. 9, r. 9 or sec. 151 when it was maintainable, committed an error of law and that an error of law is not a ground for interfering under sec. 115, C.P.C
The Petitioner's contention would seem to be this: That as the result of the error in law the Subordinate Judge refused to exercise the jurisdiction vested in him by law and deal with the matter under Or. 9, r. 9.
I have no hesitation whatever in holding that an error of law is no ground whatever for this Court interfering under sec. 115.
Looking at the wording of sec. 115, C.P.C, this would seem too obvious to require any decision to support it.
Reference, however, may be made to the case of Shew Prasad v. Ram Chandra Haribux , Amir Hussain v. Sheo Baksh Singh , Ram Gopal Jhoon Jhoonwalla v. Joharmall Khanka , Sundar Singh v. Daru Shankar (4), Amritrav Krishna Despande v. Balkrishna Ganesh and Hari Bhikaji v. Naro Vishwanath (6).
The Petitioner's argument would seem to be this: No doubt the Court, did wrongly decide the preliminary question of law as to whether the matter did or did not fall within Or. 9, r. 9 and having wrongly decided that it did not so fall the Court refused to exercise the jurisdiction which Or. 9, r. 9 gave him to decide whether the Petitioner had or had not a good reason for being absent when his case was called on. After all it is not Or. 9, r. 9 that gives the Court jurisdiction to deal with the matter. It is on thy contrary sec. 9 of the Civil Procedure Code, which confers on the Courts their jurisdiction or power to try various matters. Jurisdiction in its ordinary sense when applied to a Court means the power or authority of judging and a Court is said to be of competent jurisdiction with regard to a suit or other proceedings when it has power to hoar or determine it or exercise any judicial power therein.
In the present case the Court had power to entertain and deal with the petition. It did so entertain it and did not refuse to exercise its jurisdiction. A plea in bar was then raised that the petition was not maintainable because it did not fail within any of the provisions of the Civil Procedure Code.
The Court exercised its jurisdiction for it heard the matter and then decided rightly or wrongly that the application did not fall within Or. 9, r. 9 and therefore dismissed it. It certainly did not refuse to exercise its jurisdiction. It exercised its power of judging or its jurisdiction and determined that the application was incompetent because it fell under no section of the Civil Procedure Code. If it were wrong it committed an error of law, but it certainly exercised its jurisdiction or power of judging. The argument of the Petitioner would really come to this that if for some reason or other the Judge did not grant the relief asked for on the ground that he could not that amounts to a refusal to exercise his jurisdiction. For instance where a Judge holds that a suit is barred by limitation and hence refuses to go into the merits, it might be equally well argued that if he were wrong in holding that the suit was barred by limitation that he had refused to exercise a jurisdiction vested in him by law to decide the suit on the merits; in fact that whenever the Judge decides a point of law against a party and so does not grant him some relief he has asked for, he has refused to exercise a jurisdiction conferred on him by law. It needs but little examination to see that the doctrine would always give what amounts to an appeal whether it was granted by the Code or not when the Judge by wrongly deciding a question of law refused to grant a suitor the relief he sought for.
For instance, a Court decides wrongly that a certain suit is barred by limitation. If he had not so decided he would have decreed the Plaintiff's suit. Hence he refused to exercise a jurisdiction vested in him by law to decree the Plaintiff's suit. This is therefore a case falling within sec. 115, Civil Procedure Code. I may, however, say that the Courts have consistently held it does not.
Ram Gopal Jhoon Jhoonwalla v. Joharmall Khemka and Sundar Sing v. Daru Shankar .
As West, J., puts it in the case of Amritrav Krishna Despande v. Balkrishna Ganesh :—
“Where the law speaks of exercise of jurisdiction or failing to exercise jurisdiction it means using or failing to use authority in entering on an enquiry and carrying it to a judicial conclusion. The exercise of jurisdiction is not declined when such a conclusion has been arrived at merely because had the decision on a particular point been different, further questions would have had to be disposed of.”
That is exactly what has happened in the present case. The Judge entertained the application, heard it and determined that it did not fall within the scope of Or. 9, r. 9. As a result of the decision on this point he did not dispose of the further question, viz., whether Petitioner had good ground for not being present when the case was called on.
But by so doing he did not refuse to deal with the matter. He dealt with it and rejected the application. By so doing he did not refuse to exercise his jurisdiction. On the contrary he exercised it. The present case obviously does not fall within the four corners of sec. 115.
The Rule must be discharged with costs.
Hearing-fee 5 gold mohurs.
Mallik, J.:— I agree.
P.C