Molugu Paniah v. Molugu Ramanatham And Others

Misra, C.J:— The following two questions have been referred by a Full Bench of three Judges to a Fuller Bench of five Judges:

(1) Whether any or what classes of orders passed during the pendency of a suit can be revised under Section 115 of the CPC.

(2) Whether an order directing a party to lead evidence under O. 18, R. 1 of the CPC can be deemed to decide a case.

2. The questions arise out of a suit for petition of joint family properties. It is unnecessary to state the facts of the case in detail. The parties are descended from a common ancestor. Molugu Ramanna, who died in or about 1925, leaving a house and some other properties valued in the plaint at Rs. 51,000/-. The following pedigree will show the relationship.

3. The plaintiffs, as shown in the above pedigree, are the sons of Molugu Buchi Veerian, one of the three sons of Molugu Ramanna. They claimed that they were jointly entitled to one-third of the joint assets of the family and that the first two defendants M. Paniah and M. Kasinath, who are descended from the other two sons of Molugu Ramanna, were likewise entitled to one-third each subject to the rights of maintenance or marriage of the female defendants belonging to their respective branches.

4. The defence was based principally on the allegation that there was a previous partition in 1939 amongst the descendants of M. Ramanna and that the immovable property shown in the list attached to the plaint fell to the shares of defendants Nos. 1 and 2, while the household utensils as well as the tailoring business were the self-acquired properties of the first and second defendants. As such, they contended that all these properties belonged to them. The other pleadings would be gathered from the issues hereinafter detailed.

5. The suit was initially filed in the District Judge's Court, Secunderabad and the following issues were struck:

1. (a) Was there a partition between the plaintiffs and defendants 1 and 2 in 1939 as alleged by the defendants and if so did items 1, 3 and 4 of the Schedule properties belong to the 1st & 2nd defendants by virtue of the said partition?

(b) Is the alleged partition binding on the plaintiffs?

2. (a) In the event of a finding on issue 1(a) being in the negative, do the properties set out in the schedule to the plaint or any of them form part of the joint family,

and/or

(b) What is the extent of the properties belonging to the joint family,

(c) What are the liabilities, if any, of the said family of the plaintiffs and defendants 1 and 2?

3. In the event of a finding on issue 1(a) being in the negative, what is the amount of maintenance payable to defendants 6 and 7 from and out of the joint family properties?

4. Is the Court fee paid sufficient?

5. To what relief are the parties entitled?

6. At a subsequent stage, in April 1951, the suit was transferred to the file of the Sub-Judge, Secunderabad, who took up the question of court-fee first. Thereafter, the plaintiffs preferred an application on 29-7-1951 praying that in view of the pleadings and the frame of the issues, the case should be opened by the defendants and they must examine their evidence first. The learned Sub-Judge allowed the prayer on 14-4-1952, but the order could not be given effect to as the presiding officer was meanwhile transferred. Before his successor, the defendants applied for a re-hearing of the matter but as the new Sub-Judge agreed with his predecessor's decision, he rejected the application. Shortly stated, the view taken by him was that O. 18, R. 1 of the CPC applied to the matter and since on facts the principal question involved in the case related to the correctness or otherwise of the defendants' allegation about the partition of 1939 and the other questions of fact were subsidiary thereto, it was for the defendants to open the case and prove the facts. He recognised that the burden of proving the second issue rested on the plaintiffs but he said that it was open to the defendants to reserve their defence under R. 3, O. 18 of the CPC after the plaintiffs adduced their evidence on that first issue. Aggrieved by the order of the learned Subordinate Judge, the first defendant preferred a revision in this Court under Section 115 of the CPC. The case came up before a Division Bench which referred it to a Full Bench of three Judges, and as mentioned above, it was eventually referred to a fuller Bench of five Judges, in view of the conflict of decisions amongst the different High Courts and occasionally between the Judges of the same High Court on the question of scope of Section 115 of the CPC.

7. In order to resolve the conflicts, it would perhaps be as well to consider first of all, without entering into the merits of the various view points, the scheme of the Code so far as it bears on the question before us. The Legislature has divided all orders in two categories, some of which are classed as decrees, and the others which are designated as orders. A decree according to it, is a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It has to be noticed that under the definition of the word the term ‘decree’ would be applicable only to the determination of the controversies arising in the suit is contra-distinguished from matters in controversies which though relating to it are yet outside the scope of such controversies. Certain orders mentioned in S. 2(2) have no doubt been brought within the definition, but that is only for the sake of convenience and by way of exception. Decrees are given special importance inasmuch as among other things they are not only made appealable but they are also capable of being taken in second appeal to the High Court on questions of law or procedure. ‘Orders’ are of two kinds: (1) those which are appeal-able, and (2) those which are not. So far as the appealable orders are concerned, they are distinctly excluded from the definition of a decree, the distinction between them being that where an adjudication is an order, the Code does not provide for an appeal unless it is of the type mentioned in S. 104, and if it is an order of that type, only one appeal lies against it and the decision of the appellate Court is made final. Section 105 expressly prohibits appeals from the appellate orders and the only way in which such orders can be corrected is by an appeal from the decree if the error, defect or irregularity affects the decision of the case. It follows that where the order is not covered by Section 104 of the CPC, the Legislature gives it comparatively less importance inasmuch as it does not consider it fit for being regitated by way of appeal the essence of the distinction between the two kinds of orders lies of course in the nature of the decision and of the questions decided thereby.

8. So far as the non-appealable orders are concerned, the Code permits the parties to approach the High Court directly by way of a revision without the necessity of first approaching the normal Court of appeal, but this right is given in a very restricted class of cases. Section 115 of the CPC insists that four conditions must concur before a revision can lie. These conditions are:

(1) there must be a case decided,

(2) the decision must be a decision of a Court subordinate to the High Court,

(3) no appeal must lie therefrom, and

(4) there must be a defect of jurisdiction of the nature mentioned in clauses (a), (b) and (c) of S. 115.

9. It would thus appear that the Code permits the re-opening of an order of the trial Court by way of revision only in exceptional circumstances and the general scheme of the Legislature is that the miscellaneous orders not covered by S. 104 or O. 43, R. 1 should normally be allowed to prevail without question till the whole case is opened for redetermination by an appellate tribunal. It would, I apprehend, be legitimate to conclude on an examination of the scheme of the enactment that the conditions embodied in S. 115 for the entertainment of a revision are conditions by way of limitation rather than by way of enlargement of the rights to approach the High Court where the order is neither a decree nor covered by S. 104.

10. In one sense any matter decided by a Court of law between the parties would constitute a decision but it cannot be deemed to be revisable unless it fulfils the first condition, that is to say, it decides ‘a case’. That the word ‘case’ embraces something more than ‘suit’ does not admit of much doubt. For one thing, it need not, as remarked by their Lordships of the Privy Council in — ‘Balakrishna Udayar v. Vasudeva Ayyar’, AIR 1917 PC 71 (A), be confined to a litigation where there is a plaintiff or a defendant and it would include for example an ex parte application made to courts of law. Where, however, the case is a suit and not merely a proceeding of the nature mentioned above, the conclusion is irresistible that the suit itself should be decided before S. 115 of the Code can be brought into play unless there is some other proceeding in the suit which may be called a ‘case’ and which is concluded so far as the court deciding it is concerned by the order impugned.

11. One of the principal limitations to the application of S. 115 is that the impugned order should not be appealable. Thus the extraordinary powers conferred by the section will not be exercised if the matter can be corrected by way of appeal. The Courts are precluded by the provision from interfering in such cases and giving to a litigant what in effect would be another and an additional right of appeal. Of course, if in view of the local conditions prevailing in any State it be considered desirable to subject any particular class of orders to a further scrutiny after determination of the matter by the trial Court, the object can be achieved by amendment of O. 43, R. 1. As it stands, the purpose behind S. 115, it would seem, is that an aggrieved party is given the right to obtain rectification of a non-appealable order only in exceptional circumstances and in all other cases of non-appealable orders his right to have them re-opened is postponed as a matter of practical expediency to the time when an appeal is preferred against the decree. By adopting this course the interests of the party are not ignored but in order that unnecessary hindrances in the progress of the suit should be eliminated, it is desired to defer his right to challenge the order till a later date. There is no doubt that this procedure may sometimes prejudice an aggrieved party, but obviously in decisions of cases the Legislature regards the time factor as of greater importance and it advisedly refuses to permit the re-opening of some matter at an earlier stage.

12. The evolution of S. 115 in the form in which it stands at present would afford considerable support to this view. It will be remembered that the Code of 1850 contained no provision at all for the exercise of revisional powers by High Courts. It was only by Act No. 23 of 1861 that revisional powers were conferred on Sadar Court in a very restricted form by providing that the aforementioned Court may call for the record of any case ‘decided on appeal in which no further appeal lay’ if the Court hearing the appeal appeared to have exercised a jurisdiction not vested in it by law, vide S. 35 of Act No. 23 of 1861. The remedy was similar to the provision which authorised the Nizammath Adalat to report to the Government instances of signal injustice in miscellaneous criminal cases in which there was no appeal to that Court. The next step was reached in 1377 when by S. 622 of the Code of 1877 the power to revise cases decided on appeal was somewhat enlarged by permitting subject to the same restrictions a revision against the orders of the Court of first instance also, provided they suffered from defects of jurisdiction. Again by S. 92 of Act No. 12 of 1879, the remedy by way of revision was opened further in cases where subordinate Courts acted in the exercise of their jurisdiction illegally or with material irregularity. In the Code of 1882, the provision stood thus—

“The High Court may call for the record of any ‘case’ in which no appeal lies to the High Court, 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 in it by law or to have acted in the exercise if its jurisdiction illegally or with material irregularity, and may pass such orders in the case as the High Court thinks fit.”

13. It would seem from the opening words of the section that the emphasis was largely on the non-appeal ability of the order complained of. The word ‘case’ occurred twice, once in connection with the calling of the record of any case, and again in connection with jurisdictional defect in the order complained of. The section presupposed that the ‘case’ of which the decision could be revised would have a record which could be sent for and examined by the High Court. In other words, the proceedings should have been in a sense separate or separable and independent of the main current of controversy, and if the suit itself was to be deemed to be a case, the order sought to be revised should be the decision of the suit. Section 115 of the present Code obviously does not extend the provisions of old S. 662; it only purports to recast them.

14. It is reasonably clear to my mind that the word ‘case’ occurring in S. 115 has to be controlled by the purpose with which the revisional law was enacted, namely, to give a restricted right to a party to a litigation to obtain rectification of orders of subordinate Courts, where, as stated above, no appeal would be available. If further remedy is available to an aggrieved party, and such remedy is almost always available at the stage of appeal from decree, resort must, it would seem implicit in the Code be had to that remedy for obtaining redress unless the circumstances enumerated in the Section concur. It is one of the elementary principles of procedural law that the discretion of a subordinate Court in matters of day-to-day progress of suits should not be interfered with by way of revision, especially when the errors are of the nature against which the Code provides a remedy, vide in this connection, — ‘Prakashchandra v. Mahendra Kumar’, AIR 1948 All 288 (B).

15. It has to be remembered that the revisional powers conferred by S. 115 are not conceived of as one of those powers which are exercisable by a High Court ‘ex debito justitiae’. They are powers conferred by a statute and must therefore be confined within the four corners of the section itself. Accordingly in interpreting the section, considerations of possible irreparable or irremediable injuries which were not regarded by the Legislature as being of sufficient importance to merit their inclusion in S. 104 or O. 43. R. 1 must be left out. For obvious reasons, it is, impossible to import into the language of S. 115 words which do not find a place there and a strict compliance with the conditions laid down in that section is the ‘sine qua non’ to the exercise of jurisdiction under it. I may repeat what has been said earlier that in interpreting the section we cannot lose sight of the fact which is probably what the Legislature had in view initially in 1859, and since then with some modifications, that if interference with orders of lower Courts in pending proceedings were allowed on grounds of convenience or on grounds of hardship, the trial of suits in the Courts of first instance would be hampered at every stage and protracted by recalcitrant litigant to unimaginable lengths.

16. Coming to the case law, it would be noticed that three different views have prevailed in the High Courts in India in regard to the powers of revision conferred under Section 115 of the CPC:

(1) that every order passed in a suit is a ‘case’ unless it is purely a routine or formal order;

(2) no order during the pendency of a suit can decide a case; and

(3) that if the order complained of terminates so far as the Court deciding it is concerned, some separate or distinct proceeding in a suit, it is a case decided within the meaning of S. 115.

17. There is abundant case law in support of each of the three propositions. It would scarcely be profitable to examine all of them in detail.

18. Typical of the first class of cases is the decision of the Full Bench of the Lahore High Court, in Bibi Gurdevi, deceased, represented by — ‘Prithivi Raj Khosla v. Mohd. Baksh’, AIR 1943 Lah 65 (FB)(C), which overruled the previous Full Bench of the same Court in — ‘Lal Chand Mangal Sen v. Behari Lal Mehr Chand’, AIR 1924 Lah 425 (D). It lays down that the word ‘case’ is wide enough to include decisions of any substantial questions in controversy between the parties affecting their rights even though such order is passed in the course of the trial of the suit. The language of the section, if I may venture to say so, does not depend upon the substantial nature or otherwise of the controversy between the parties. The criterion on the contrary is whether or not it decides a ‘case’. A beneficial construction can be adopted only when the language of the statute is vague or is capable of being construed in more than one sense. Where such is not the case I find it difficult to allow considerations of what should be the law to affect our interpretation.

19. That the word ‘case’ has been used in the Code of Civil Procedure in different senses may be conceded at once. Judged, however, in the light of the scheme underlying the exercise of the appellate and re visional jurisdiction of the High Court, that scheme, for the reasons given above would seem to conceive of the correction of a trial court's judgment by appeal from a decree and by way of appeal from orders covered by S. 104, but where the decision does not amount to a final adjudication of the dispute within the meaning of S. 2(2) and it is a non-appealable order it can be corrected only on appeal from a decree unless it fulfils the requirements of S. 115. If the door of revision were thrown open by the High Court in all cases where substantial wrong is occasioned to a party, it would obviously be tantamount to assuming powers in excess of those which the law confers upon the High Courts.

20. For the view taken in the Lahore case, reliance is placed on all those decisions where the criterion applied, was the seriousness of the error and the extent of prejudice or the mischief likely to be occasioned to a party by the refusal to remedy the wrong at an early stage of the suit.

21. Similar views were adopted inter alia in — ‘Chattsrpal Singh v. Raja Ram’, 7 All 661 (FB)(E); — ‘Dhapi v. Ram Pershad’, 14 Cal 768 (F); — ‘Perianna Muthirian v. Venu Ayyar’, AIR 1929 Mad 21 (G), and amongst the recent cases, reference may be made to — ‘Surpat Singh v. Ratan Chand Sreemal’, AIR 1940 Cal 92 (H); — ‘Chintalapati Murthiraju v. Chintalapati Subbaraju’, AIR 1944 Mad 315 (FB)(I); — ‘Lakshmidevamma v. Nagayys.’, AIR 1949 Mad 369 (J); — ‘Municipal Borough of Ahmedabad v. Aryodaya Ginning and Manufacturing Co., Ltd.’, AIR 1941 Bom 361 (K).

22. The view of Wanchoo, C.J in the Full Bench decision — ‘Purohit Swarupnarain v. Gopinath’, AIR 1953 Raj 137 (L), while accepting — ‘Gurdevi's case (C)’ is in substantial agreement with what I have said above. He lays emphasis on the non-appeal ability of the order rather than on the expression ‘case decided’.

23. There are good many cases, which, on the other hand, go to the other extreme and hold that no order is revisable unless it operates to decide the entire suit. It is unnecessary to examine these cases also in view of the fact that rigour of this extreme view has of late been greatly relaxed by the later decisions of the same High Courts.

24. The view taken by this Court has throughout been that the revisional powers are exercisable only when either the suit or a proceeding distinct from the suit is decided. It has been observed in this connection that a case can be said to be decided in two ways; either when all the proceedings in the suit are over or when some intermediate proceeding is terminated. In either event, it is essential that the proceeding should terminate. If it continues in spite of the decision, the order is not open to be revised. See — ‘Narsinghgir Chela Raja Gyangir v. Mohd. Bahadur Dil Khan’, 8 Deccsn LR 505 (FB)(M) and — ‘Siva Chakkayya v. Khatadat Lachmayya’, 36 Deccan LR 344 (N).

25. Whether or not this Court is bound to follow the decisions of the erstwhile Hyderabad High Court, it must be conceded that they are entitled to the highest weight. The decision of the Full Bench of the Allahabad High Court in — ‘Buddhoo Lal v. Mewa Ram’, AIR 1921 All 1 (O), also gives expression to a similar line of thought. It lays down that the section does not include an issue or part of it or interlocutory orders and the High Court has no power to interfere with them in revision. According to the view taken there, the expression ‘case’ occurring in S. 115 means a suit where an application for revision is made in a suit itself. It is emphasized that the High Court can only call for the record of a case which has been decided; and that it cannot entertain a revision against an order during the pendency of the suit, in other words, until the suit itself has been decided, and if it relates to proceedings other than a suit, though in course of it, it must terminate those proceedings before it can be revised.

26. This view has been upheld in subsequent Full Bench cases of the Allahabad High. Court, see AIR 1934 All 620 (Suraj Pali v. Arya Pratinidhi Sabha’. AIR 1936 All 686 (FB)(Q), wherein it is said down that though the word ‘case’ is something wider than a ‘suit’ it does not include every order that they be passed in a suit in course of the trial or the proceeding before it. In order that it may be a case it has to be a proceeding which can be regarded as something separate and in a cense independent from the suit to which it relates and the termination of that proceeding should be somewhat different from mere orders passed in the ordinary trial of the suit itself.

27. On the language of the S. 115, I am constrained to hold that no other view is Possible. I respectfully disagree with the conclusions of the Full Bench in — ‘AIR 1943 Lah 65 (FB)(C)’ and the cases since decided in line with that decision wherein the substantial nature of the injury and importance of the points raised or the mandatory nature of the provision violated is made the criterion for determining the revisability of an order.

28. The answer which propose to give to the first question referred to us., therefore, is that under Section 115 of the CPC—

(a) only such orders can be revised during the pendency of the suit as are not open to appeal either directly or indirectly and are separate from the principal current of controversy, in other words, as are in a sense independent of it, or

(b) such orders as operate to terminate the suit itself.

29. The answer to the second question fallows on what has been said above. As an order directing a party to lead evidence under O. 18, R. 1 of the CPC is not a separate or independent proceeding, it is only incidental to a decision of the suit. It does not decide the suit and my answer to that second question referred to this Bench is that such an order does not constitute a case decided within the meaning of S. 115 of the Code.

Palnitkar, J.:— I entirely agree.

S.Q Hasan, J.:— I agree and have nothing to add.

M.A Ansari, J.:— I agree with the judgment of his Lordship the Chief Justice and have nothing to add.

Manohar Pershad, J.:— I have had the privilege of going through the judgment of My Lord the Chief Justice with whose opinion, with all due respect, I regret I cannot agree. I still hold the view which I had expressed in my judgment sitting in the Division Bench by which reference had been mace to the Full Bench.

30. The Division Bench consisting of myself and my learned brother Vithal Rao Desbpande, J. had referred the case to the Full Bench of three Judges having regard to the divergence of opinion in this Court and the other High Courts, with regard to the powers of revision of the High Court under Section 115 of the CPC. In view of the importance of the question, the Full Bench consisting of My Lord the Chief Justice, Justice Qamar Hasan and myself, has in turn referred the following two questions to the Full Bench of rive Judges:

(i) Whether any or what classes or orders passed during the pendency of a suit can be revised under Section 115 of the CPC, and

(ii) Whether, an order directing a party to lead evidence under Order 18, Rule 1 of the CPC can be deemed to decide a case”.

31. Shri Ramaswamy Iyengar, appearing on be naif of the revision petitioner, urged that the word ‘case’ is wide enough to include the decision of any substantial question in controversy between the parties affecting their rights, even though such an order is passed in the course of the trial of the suit and that its scope should not be restricted to mean the whole suit and not a branch of the suit. Following up the contention it is urged that if the word ‘case’ were to be taken to mean a ‘suit’, the High Court would not have the power to interfere during the pendency of a suit, even if the errors are gross or palpable and it is perfectly clear that the final decision will have to be set aside eventually in the interests of justice owing to those errors. It will obviously mean enormous waste of money, if errors of this type could not be rectified by the Court at once and have to await the final decision, to be rectified, and if that is so the wide powers conferred upon the High Con its by S. 115 will be rendered nugatory to a large extent. This could, it is argued, scarcely have been the intention of the Legislature in enacting the section. It is secondly contended that the narrow interpretation placed on the word ‘case’ in the early Lahore and Allahabad cases is now generally considered to be untenable by several High Courts. In support of his contentions, the learned advocate has cited a number of authorities.

32. On behalf of the other side Shri Subbarayudu, advocate, contended first that Section 115 of the CPC provides that the High Court may call for the record of any case:

(i) “Which has been decided,

(ii) in which no appeal lion thereto”,

33. Which means that it may call for the record of any suit or other description of suit which has been decided, and unless the suit has been decided the record cannot be called. Therefore, he contends that the word ‘case’ cannot be held to mean a branch of the case. In other words, he argued that all cases are not suits but every suit is a case. Relying on Section 105 of the CPC, it is further contended that the Code has provided for the correction of any error, defect or irregularity the appeals; that being the case, the same matter cannot be the subject of the jurisdiction of the revisioaal court. In other words he contends that the legislature did not contemplate that an order made by a Court before the final judgment from which an appeal is allowed should be challenged on an application for revision. Following up the contention it is urged that the fact that it would cause hardship to a party would not be a sufficient ground for invoking the power under S. 115.

34. In order to decide the question a inference to Section 115 of the CPC is necessary, which runs as follows:

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 courts appear—

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

(b) to have failed to exercise a jurisdiction vested, or

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

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

35. This section provides for the exercise of revisional powers of the High Court. The revisional jurisdiction of the High Court in civil cases is derived from this section. But the following conditions must be satisfied before the revisional powers of the High Court can be exercised:

(i) there must have been a case decided by the subordinate court;

(ii) the Court deciding the case must be one subordinate to the High Court;

(iii) the decision must be one in which no appeal lies, and

(iv) the subordinate court must have, in the decision of the case, exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction vested in it or must have acted in the exercise of its jurisdiction illegally or with material irregularity.

36. The powers under this section are intended to be exercised with a view to subserve and not to defeat the ends of justice. The result is that the High Court cannot in the exercise of its revisional powers under this section, attack findings of facts of the subordinate courts or substitute its own decision on the evidence for that of the primary court. These are functions of the court exercising appellate jurisdiction: but the High Court, in the exercise of revisional jurisdiction can, however, look into the evidence with a view to determine whether a subordinate court has assumed a jurisdiction which it had not or declined to exercise a jurisdiction which it had or acted illegally or with material irregularity in the exercise of its jurisdiction. A party cannot be allowed to obtain in revision what he will not be able to obtain in appeal, nor will be allowed to take in revision a point which he could have taken, but did not take in the subordinate court. High Courts have also, in addition to the power given under this section, powers of superintendence over subordinate courts under Article 227, Constitution of India (corresponding to Section 224 of the Govt. of India Act, 1935). The exercise of revisional powers of the High Court is entirely discretionary. The High Court will not take a technical view nor necessarily interfere in every case where an order has been made irregularly, or even improperly unless grave injustice or hardship would result from a failure to do so.

37. The crucial question, therefore, is whether the word ‘case’ when used with reference to a suit must be taken to be the whole ‘suit’ and nothing else. The question is primarily that of the meaning to be assigned to the word ‘case’. There has been a great divergence of opinion regarding this. The word ‘case’ has not been defined either in the Code of Civil Procedure or in the General Clauses Act. It is used in different senses in legal phraseology. The Oxford Dictionary gives various meanings:

(i) State of facts judicially considered;

(ii) A cause or suit brought into a court for decision;

(iii) A cause which has been decided judicially;

(iv) a statement of facts of another matter sub-judice for consideration of a higher court; and

(v) Case as presented or put to court by one of the parties to the suit.

38. It is not clear whether it means the state of facts of the whole case or a branch of a case, and whether the word ‘case’ is synonymous in its scope with the word ‘suit’ or whether it is wider. This gave rise to two interpretations of the word ‘case’. According to one interpretation which was favoured by a group of High Courts, the word was wide enough to include not only the order finally disposing of the ‘lis’ but also an interlocutory order, while according to the other and a narrower interpretation favoured by another group of the High Courts the words ‘case decided’ do not include a part of the case decided; in other words, the words do not include interlocutory orders. It has, however, been held to have a wider meaning than the word ‘suit’ or ‘appeal’.

39. In — ‘7 All 661 (E)’ Mahmood, J. observed as follows:

“The word ‘case’ as used in S. 662 of the Code is nowhere defined: but adopting the general rule of construing statutes I hold that the word should be understood in its broadest and most ordinary sense unless there were specific reasons for narrowing its meaning.”

40. In — ‘AIR 1917 PC 71 (A)’, where the question was whether an ex parte proceeding under the Religious Endowments Act 1863 constituted a ‘case’ within the meaning of this section, their Lordships of the Privy Council observed as follows:

“It cannot in their Lordships' view be confined to a litigation in which there is a plaintiff who seeks to obtain particular relief in damages or otherwise against a defendant who is before the Court. It must, they think, include an ex parte application such as that made in this case praying that persons or officials should perform their trusts or discharge their official duties.”

41. This Privy Council decision was relied on in the case of — ‘Venkatagiri Iyengar v. Hindu Religious Endowments Board, Madras’, AIR 1949 P.C 156 (R&S). This was a case where the High Court had interfered on the ground that the subordinate court had made a serious mistake in the construction of a will. Their Lordships held:

“the order of the High Court was without jurisdiction”,

42. And observed as follows:

“Sec. 115 only applies 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 upon these 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 upon these three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the Subordinate Court upon question of fact or law.”

43. There can be no justification whatsoever for the view that Sec. 115(c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate courts. It would indeed be difficult to formulate any standard by which the degree of errors of subordinate courts could be measured.

44. In this case the question whether the order is a ‘case decided’ has not been discussed. The question that now arises for consideration, is whether the expression ‘case decided’ in Section 115 of the CPC includes interlocutory orders and if so what classes of interlocutory orders. There is a conflict of view among the various High Courts as to whether an interlocutory application is a ‘case’ and an interlocutory order a ‘case decided’ within the meaning of this section. It has been held by the High Court of Allahabad in the Case of AIR 1948 All 288 (B) that it is not. The view is based on the ground that though the word ‘case’ is more comprehensive than the word ‘suit’, no instance can be quoted of its use in the Code where we cannot include a suit and where the case in which the revisional jurisdiction of the High Court is invoked happens to be also a suit, then the suit itself is the case which requires to be decided before the record is called tor. It was, therefore, held that an interlocutory order in a suit which does not decide the suit itself, is not a ‘case decided’ and cannot be interfered with under Section 115 of the CPC.

45. Similar observations were made by the Allahabad High Court in the cases of — ‘Sheo Baran Singh v. Lachmi Narain’, AIR 1933 All 749 (T); — ‘AIR 1934 All 620 (FB)(P)’; — ‘Sunaerial v. Mt. Razia Begam’, AIR 1934 All 735 (U); — ‘Mukundlal v. Gaya Pershad’, AIR 1935 All 599 (FB)(V); — ‘Wali Mohammad v. Hingalal’, AIR 1935 All 80 (W); — ‘Misra Ranganath v. Misra Murarilal’, AIR 1936 All 179 (X) and — ‘Rammanial v. Baburam’, AIR 1941 All 50 (Y).

46. ‘AIR 1933 All 749 (T)’ was a case where the Subordinate Judge, Aligarh rejected the application made by the applicant to the effect that he should decide a particular issue in a civil suit in his court before proceeding to hear evidence on the rest of the issues. Kendall, J. held:

“It is, however, for the trial court to decide in what order it will decide the issue, and I do not think that I should interfere in revision in order to make a direction on this point.”

47. Accordingly, the revision petition was rejected.

48. In — ‘AIR 1934 All 620 (FB)(P)’ the question decided was that a mere decision given by a Court as to the amount of the court-fee payable does not amount to a ‘case decided’.

49. ‘AIR 1934 All 785 (U)’ was a case where an amendment of the plaint was allowed. It was held that it does not amount to a ‘case decided’.

50. ‘AIR 1935 All 599 (FB)(V)’ was a case where certain questions were disallowed to be put to a witness. It was laid down that no case can be said to have been decided. ‘AIR 1936 All 80 (W)’ was a case in which the court ordered the legal representatives of judgment-debtor to be impleaded in appeal; it was held that such an order was not a decision revisable under Section 115 of the CPC ‘AIR 1936 All 179 (X)’ was a case under the Guardians & Wards Act. The Judge held that he had jurisdiction to go into the accounts which was an interlocutory order. The High Court refused to interfere holding that the order did not amount to a ‘case decided’.

51. The same High Court (Allahabad) in certain cases had held that the Court has power to interfere but refused to interfere as another remedy was open under S. 105 of the Code; vide — ‘Chattar Singh v. Lekhraj Singh’, 5 All 293 (Z) and — ‘Farid Ahmed v. Dulari Bibi’, 6 All 233(Z1).

52. The High Court of Bombay has also accepted the same view as that of the Allahabad High Court in the case of — Isa Adam v. Bai Mariam’. AIR 1927 Bom 664(Z2); — ‘Nasarwanji Hormusji v. Jamshedji Navroji’, AIR 1932 Bom 232 (Z3); — ‘Senaji Kapurchand v. Pannaji Bevichand’, AIR 1932 Bom 81 (24), on the ground that the case does not include a branch of a case such as an interlocutory order. Later on however, this very Court in the cases of — ‘Motibhai Jesingh Bhai v. Ranchhodbhai Shambhubhai Patel’, AIR 1935 Bom 222 (Z5); — ‘Jamnadas Vrijlal v. Chandulal Jamnadas’, AIR 1937 Bom 167 (Z6) and — ‘AIR 1941 Bom 361 (K)’ has taken a contrary view and has held that:

“The High Court while it should be very slow to interfere in its revisional jurisdiction with orders which are merely interlocutory, has certainly jurisdiction to do so and the jurisdiction can be exercised in a proper case. A revision application is, therefore, competent in respect of a preliminary order passed by a subordinate court, where such an order goes to the jurisdiction of the court. In other words, it suggests that interlocutory orders can be revised under this section.”

53. The Calcutta High Court favoured the wider interpretation and held that:

“the word ‘case’ in Section 622 of the CPC is wide enough to include interlocutory orders and the words ‘records of any case’ include so much of the proceedings in any suit as relate to an interlocutory order”

vide — ‘14 Cal 768 (F)’ This view was accepted by the same High Court in the case of — ‘Sarat Chandra Sen v. Mrityunjay Ray’, AIR 1935 Cal 336 (2) (Z7 & 8).

54. The Madras High Court also approved and followed the view of the Calcutta High Court in the cases of — ‘Satyanarayan v. Subramanayam’, AIR 1935 Mad 547 (Z9): —‘Khaja Moin Saheb v. Abdul Gafoor’, AIR 1942 Mad 247 (Z10) and —‘Bagyalakshmi Ammal v. Bappu Iyer’, AIR 1946 Mad 90 (Z11).

55. The view of the Patna High Court appears by no means consistent, as is clear from the different views taken in — ‘Manilal v. Durga Pershad’, AIR 1924 Pat 673 (Z12) and — ‘Raghunandan Gir v. Deoraj Gir’, AIR 1936 Pat 85 (Z13). This inconsistency is, however, now removed and a wider interpretation of the word ‘case’ is accepted in a Full Bench decision in — “Ram Khelawan Sahu v. Bir Surendra Sahi’, AIR 1938 Pat 22 (FB) (Z14).

56. The view of the Calcutta High Court was always accepted as correct by the Nagpur Judicial Commissioner's Court and also by the Nagpur High Court. In — ‘Bisan Dayal Sitaram v. Bodulal Ladhuram’, AIR 1916 Nag 123 (Z15), Stanyon, A.J.C observed:

“I am not in favour of using Section 115 of the CPC in a narrow and technical way. I regard it as a section which gives plenary powers of interference by this Court.”

57. In — ‘Laxman Das v. Chunnilal’, AIR 1931 Nag 17 (Z16), Niyogi, A.J.C laid down quite unequivocally that:

“This word ‘case’ in Section 115 of the CPC is wide enough to cover an interlocutory order.”

58. These dicta have been followed by the Nagpur High Court in several cases: In — ‘Krishna Kumar v. Radha Lal’, AIR 1938 Nag 210 (Z17) Bose, J. (now Judge of the Supreme Court) held that:

“The word ‘case’ used in S. 115 is wide enough to include an interlocutory order and the High Court has power to interfere with such orders provided they otherwise fulfil the requirements of Section 115 of the CPC”

59. In another decision reported in — ‘Bhaiya Saheb Dajibabhau v. Ramnath Rampratap’, AIR 1938 Nag 353 (Z13) Bose, J. observed that:

“the High Court could not ordinarily exercise its revisional jurisdiction in a purely interlocutory matter, namely, about the admission of a certain piece of evidence, but it may do so in certain circumstances involving the question of jurisdiction or inflicting irreparable injury on the party.”

60. In — ‘K.C Mujamdar v. Suraj Singh Ramnaresh Singh’, AIR 1941 Nag 205 (Z19) Bose, J. interfered in revision in a case where the party on whom interrogatories were served, filed a reply but the affidavit was sworn to not by the party personally but by his agent and therefore, the lower court asked that party to file answers again in a proper form.

61. In — ‘Narayan Sonaji v. Shesh Rao Vithoba’, AIR 1948 Nag 258 (FB) (Z20), the Full Bench observed as follows:

“It is thus clear that the jurisdiction to entertain a revision does not depend on the order sought to be revised being interlocutory or final. Nor does it depend upon the particular matter disposed of by that order. The High Court has jurisdiction to entertain revision against orders deciding a particular matter provided the three conditions in the first part of S. 115 are satisfied. It may be noted that according to one of those conditions the order sought to be revised must not by itself be appealable to the High Court. It is immaterial that an appeal would lie to the High Court from the decree which may ultimately be passed in the suit.”

62. The Chief Courts of Sind and Oudh and the Peshawar Judicial Commissioner's Court have also held that:

“the expression ‘case decided’ will not include an interlocutory order”

63. Vide — ‘Mt. Zaralbibi v. Shamsuddin’, AIR 1946 Sind 141 (Z21); — ‘Shanti Bai v. Motiram Sitaram’, AIR 1946 Sind 30 (Z22); — ‘Deputy Commr. Bareli v. Bhola Nath’, AIR 1942 Gudh 432 (Z23); — ‘Ghani v. Mustafa Khan’, AIR 1948 Oudh 305 (Z24) and — ‘Firm Devidas Gulzari Lal v. Firm Mitha Shah Ramditta Mal’, AIR 1943 Pesh 8 (Z25). ‘AIR 1946 Sind 30 (Z22)’ was a case where the question was whether the commission shall or shall not issue & it was held that it is not a ‘case decided’. ‘AIR 1946 Sind 141 (Z21)’ was a case under the Arbitration Act and the order remitting an award for reconsideration by arbitrators was held to be not a ‘case decided’. ‘AIR 1942 Oudh 432 (Z23)’ was a case of remodelling the issues. It was held that the order remodelling the issues is interlocutory and no revision lies. ‘AIR 1948 Oudh 305 (Z24)’ was a case where the plaint was returned for presentation to the proper court. ‘AIR 1943 Pesh 8 (Z25)’ was a case where additional court-fee was ordered to be paid. In the case of — ‘AIR 1946 Sind 30 (Z22)’ it has been held that:

“it cannot be laid down as an invariable rub that no application in revision will lie against any interlocutory order.”

64. Similar observations were made in the cases of — ‘Prithvinath v. Bhagirath Tandon’, AIR 1942 Oudh 208 (Z26); — ‘Mrs. Svble Massey v. Mr. J.K Massey’, AIR 1947 Pesh 53 (Z27) and it has been held that:

“The rule that ordinarily no interlocutory order is revised by the High Court is not inflexible. It depends on the nature of the interlocutory order passed.”

65. In the Lahore High Court also before the decision of the Full Bench of that Court in — ‘AIR 1943 Lah 65 (C)’, the view adopted was that “interlocutory orders could not be revised as there was no case decided”. This was the view taken in a previous Full Bench — ‘AIR 1924 Lah 425 (FB)(D); — “Ghulam Ali v. Niaz Ali’, 172 Ind Cas 497 (Lah) (Z28); — Peoples Bank of Northern India Ltd. v. Kanayalal’, AIR 1938 Lah 80 (Z29); — Manoharlal v. Nanhe Mal’, AIR 1938 Lah 548 (Z30); — Ghela Ramsingh v. Gul Sher’, AIR 1934 Lah 165 (1) (Z31); — ‘Sriram v. Khawaju’, AIR 1934 Lah 235 (Z32); — ‘Brandro Nath v. Kishori Lal’, AIR 1934 Lah 401 (1) (Z33); — ‘Asa v. Mt. Bhitran’, AIR 1836 Lah 466 (Z34) and — ‘Firm Gulab Singh Johri Mal v. Dharampal Dalip Singh’, AIR 1936 Lah 538 (Z35). This view has been overruled by the later Full Bench decision in —.‘Bibi Gurudevi's case (C)’ referred to above in which it has been held that:

“the word ‘case’ is wide enough to include the decision of any substantial question in controversy between the parties affecting rights even though such an order is passed in the course of the trial of the suit.”

66. The Judicial Commissioner's Courts of Ajmer Merwar and Kutch have expressed the same view as that of the later Lahore Full Bench vide — ‘Municipal Committee v. Mool Chand’, AIR 1951 Ajmer 90 (236) and — Thaker Murarji v. Jayant Trading Corporation’, AIR 1949 Kutch 5 (Z37).

67. In this Court also there has been a considerable divergence of opinion. In the Full Bench case of — ‘8 Deccan LR 505 (M)’, the majority view was similar to that taken by the Allahabad High Court but the minority view was that taken by the Lahore High Court later.

68. In the case of — ‘Mohd. Subhan Khan v. Md. Taber Ali Khan’, 12 Deccan LR 616 (Z38), the High Court interfered in revision in an interlocutory order. Similar interference is seen in the case of — ‘Bahu v. Pnulchand’, 22 Deccan LR 203 (Z39) and the ground for interference was that the order of the court was contrary to law. In the case of — ‘Pirdi Chand v. Gangadhar’, 35 Deccan LR 438 (Z40), however interference was refused on the ground that it was an interlocutory order.

69. From this it would appear that there is a marked divergence of judicial opinion. The Calcutta High Court always favoured the wider interpretation. Some High Courts have held that the High Court is not entitled to interfere in the suit until the whole suit has been decided and cannot, therefore, interfere with orders passed during the pendency of the suit. Others have held that the word ‘case’ used in the section does not necessarily mean the ‘whole suit’ but includes even a branch of the suit and that interlocutory orders are therefore, revisable. The main point for consideration is the interpretation to be placed on the word ‘case’ as used in the section. The question has to be determined according to well-known canons of interpretation of Statutes:

“It is well established that the words of a statute when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject and the object which the legislature has in view. Their meaning is to be found not so much in strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used and the object to be attained. (See F. Maxwell's Interpretation of Statutes 8th Edn p. 48).

70. It is further observed that:

“even if there is some room for doubt, such construction should be placed on the words as shall suppress the mischief and advance the remedy. Therefore, even when the usual meaning of the language falls short of the whole object of the legislature a more extended meaning may be attributed to the words if they are fairly susceptible of it” (See Maxwell on Interpretation of Statutes p. 61).

71. It is, therefore, necessary to consider the scope and object of S. 115 in order to determine the interpretation of the word ‘case’ which would be most appropriate to that section. In the Code of Civil Procedure of 1850 there was no provision for revision corresponding to S. 115 of the present Code. That provision was first incorporated in the Code of 1877 in S. 622. It was amplified in 1879 by the addition of what is now Cl. (c) and has been reproduced with certain verbal modifications in the present S. 115. The section confers power on the High Courts to call for the record of a ‘case decided’ by a subordinate court in which no appeal lies to the High Court and if the High Court finds that the subordinate court has committed any error in the exercise of jurisdiction falling within the scope of cls. (a) to (c) of this section, the High Court may make such order in the case as it thinks fit.

72. It would thus appear that the section confers very wide powers on the High Court to interfere when the subordinate court has committed certain kinds of errors in the exercise of its jurisdiction. If however, the word ‘case’ were to be taken to mean a ‘suit’, the High Court cannot interfere during the pendency of a suit even if the errors are gross or palpable and it is perfectly clear that the final decision will have to be set aside in the interests of justice owing to those errors in the case. But this would mean enormous waste of money, if errors of this type cannot be rectified by the High Court at once and the wide powers conferred upon the High Court by S. 115 will be rendered nugatory to a large extent. This could scarcely have been the intention of the legislature in enacting the section. It seems, therefore, in consonance with the object of S. 115 to place a wide, rather than a narrow interpretation on the word ‘case’ as used in that section and the general trend of decisions in all the High Courts is in favour of such an interpretation.

73. The first important decision in support of the contrary view seems to be the Full Bench decision of the Allahabad High Court in — ‘AIR 1021 All 1 (FB)(O)’. In that case it was held by the majority of the learned Judges constituting the Full Bench (3 out of five) that the High Court has no power to interfere with the order of a subordinate court, holding that the court had no jurisdiction to try the suit. It is, therefore, noteworthy, however, that one of the three learned Judges who supported this view (Ryves, J.) was absolutely not prepared to go so far as his two colleagues with whose conclusions he agreed. The same interpretation was placed on Section 115 of the CPC by the Full Bench of five Judges of the Lahore High Court in the case of — ‘AIR 1924 Lah 425 (D)’ and this ruling appears to be the most authoritative pronouncement in favour of the narrower interpretation of the expression ‘case decided’ as used in Section 115 of the CPC. In this case Sir Shadilal, C.J remarked as follows:

“Neither the Code of Civil Procedure nor the General Clauses Act defines the word ‘case’. There is no other statute which can throw any light upon the subject. It is beyond question that ‘case’ is not synonymous with ‘suit’. While every suit is a case it cannot be said that every case is a suit. The word ‘suit’ is a very comprehensive expression and includes not only a suit but other proceedings under the Guardians and Wards Act. Probate and Administration Act, Succession Certificate Act, Religions Endowments Act, Provincial Insolvency Act, etc. But can a branch of a suit be regarded as a case within the meaning of the section? I would answer the question in the negative. The scheme of the Code shows that while certain orders to which importance was attached by the Legislature are made appealable, other orders not included in the list can be interfered with by the Superior Court only on an appeal provided that they affect the decision of the case it seems to me that the Legislature did not contemplate that an order made by a court before the final judgment from which no appeal is allowed, should be challenged on an application for revision, and that the trial of the suit should be delayed pending the disposal of that application.”

74. Some support is lent to this view by the recent judgment of the Rajasthan High Court in the case of — ‘AIR 1953 Raj 137 (FB)(L)’, wherein the expression: “in which no appeal lies thereto” according to Section 115 of the CPC has been interpreted to mean that:

“Where it is open to a party to raise a ground of appeal under Section 105 of the CPC from the final decree or order with respect to any order which has been passed during the pendency of the case it would be held that an appeal in that case lies to the High Court.’

75. The Punjab High Court in — ‘Pandit Rama Kant v. Pandit Ragdeo’, 60 Pun Re 1897 (Z41) gave a different interpretation to the word ‘case’ it was held that:

“the word ‘case’ does not necessarily in every instance, mean the whole case, but may mean a particular branch of a case for which an independent remedy or a different procedure is provided in the Code and may include an interlocutory order.”

76. The reasons given for the narrower interpretation may be summarised as follows:

(i) that there is the danger of delay in the disposal of the suit;

(ii) that Section 115 of the CPC contemplates that the record of the case which has been decided should be sent for and that this will not be possible until the whole case has been decided;

(iii) that the Code of Civil Procedure (Act No. 5 of 1908) has provided remedies to the party aggrieved by any order by the trial court prior to the delivery of the final judgment; as for instance S. 104 of the said Code has provided the right of appeal against the above orders dealing with arbitration or with the exercise of the punitive jurisdiction of the courts. The last clause of this section ‘relegates’ to the Schedules, the list of the other orders against which a right of appeal is given;

(iv) Sec. 105 of the said Code also empowers the party to challenge in appeal from the final order any order which has affected the decision of the case, that is to say, any order passed by the trial court but for which the decision might have been other than what it was;

(v) If the question relates to the balance of convenience, the court can lay down rules prescribing the proper form of procedure and right of appeal to determine the preliminary issues in a suit; and

(vi) Interfering in revision in such matters would amount to ousting the jurisdiction of a proper court of appeal to which the Legislature has given power for reviewing decisions of the Munsiff's Court upon the particular issue.

77. To my mind these points are not weighty enough. It must be noted that Section 115 of the CPC imposes various restrictions on the exercise of revisional jurisdiction conferred by it. Thus it is clear that the extent of the orders open to revision is very much narrowed down by the conditions imposed by the section itself. The danger of delay will, moreover, be greatly reduced if proper care is taken at the time of admitting petitions for revision. For, revisions need not be admitted unless a prima facie case is made out. The fact that Section 104 of the CPC provides remedies against orders and S. 105 of, the said Code makes provisions against the decree, cannot, in my opinion, be regarded as a bar to the exercise of the powers under Section 115 of the CPC nor can such exercise be deemed to be an ouster of jurisdiction of the appellate court.

78. I find that the words ‘case’ and ‘suit’ are both used in various parts of the Code of Civil Procedure and in different contexts and neither of them is defined. “A suit commences with the presentation of a plaint (see S. 26 of the Code) and terminates in a decree”, according to the definition in S. 2, Cl. 2 while a case need not da either of these things. It follows from this, therefore, that the word ‘case’ is either a comprehensive expression intended to apply to other proceedings as for instance those under the Guardians & Wards Act and under the Provincial Insolvency Act as well as ‘suits’; or that it is practically synonymous with ‘suits’ as it is used in O. 14, R. 2.

79. Justice Mahmood has observed in the case of — ‘7 All 661 (E)’ that:

“the word ‘case’ as used in S. 622 of the Code is nowhere defined: but adopting the general rule of construing statutes I hold that the word should be understood in its broadest a and most ordinary sense unless there were specific reasons for narrowing its meaning.”

80. Sulaiman, C.J has observed as follows in the case of — ‘AIR 1934 All 620 (FB)(P):

“It seems to me that it is not possible to lay down any complete or exhaustive definition of the word ‘case’. Certainly the word ‘case’ is not an exact equivalent of the word ‘suit’. Obviously, it is something wider. At the same time, it may not be so wide as to include every order that is passed during the trial of a suit or proceedings pending before it”.

81. It seems to me also that it is not possible to lay down any complete or exhaustive definition of the word ‘case’ and, therefore, to my mind it should be understood in its broadest and most ordinary sense unless there are specific reasons for narrowing down its meaning. I am, therefore, inclined to hold that the word ‘case’ is wide enough to include decisions on any matter in controversy affecting the rights of the parties to a suit. This interpretation is supported not only by the dictionary meaning of the word but also by the sense in which it is used in some other sections of the Code itself and also by the rule of interpretation which requires that a beneficial construction should be placed upon the provisions of a statute when this appears to be consonant with its object. The grave injustice which resulted from the narrow interpretation placed on the word ‘case’ in the cases of — ‘AIR 1924 Lah 425 (D) and — ‘AIR 1921 All 1 (O)’ was, however, soon realised in a Full Bench ruling of the Allahabad High Court in — ‘AIR 1934 All 620 (P)’ referred to earlier. It is laid down there that:

“Ordinarily, orders by the same Court from time to time during the trial of a suit would not be regarded as so many different cases decided by the Court each, of them revisable Under Section 115 of the CPC. But where the case is a proceeding which can be considered separate and distinct and is finally disposed of by an order which terminates it, it may well be considered to be a ‘case decided’ although the suit has not in one sense been completely disposed of.”

82. A similar view has been taken in the case of — ‘AIR 1936 All 686 (Q)’. It will thus appear from the above that the trend of recent decisions in Allahabad also is to place a much wider interpretation on the word ‘case’ than was given to it by the majority of Judges in — ‘AIR 1921 All 1 (O)’ and as the counsel for the revision petitioner has put it the rule has been swallowed by the exceptions. The question is: What is the test to be laid down? Is it the importance of the order from the stand Joint of the rights of the parties or is it the likelihood of grave injustice or irreparable loss, in case no revision is allowed, or is it something else? It seems to me that logically, the two intelligible positions are either to hold that the word ‘case’ does not apply to a branch of a suit or to hold that the word ‘case’ is wide enough to include interlocutory orders, and then to limit the exercise of the revisional power conferred by S. 115 to that class of cases for which it appears to be really intended. The narrow interpretation placed on the word ‘case’ in the earlier Lahore and the Allahabad Full Bench cases is now generally considered to be untenable. I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a ‘case’ for the purpose of Section 115 of the CPC is to be deduced from the proper scope and limits of revisional jurisdiction conferred upon the High Court by that section. Taking into view the language there seems to be no good reason why one branch of a suit should be held to be a ‘case’ but not another. This does not of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc., could be looked upon as ‘cases’. But when a decision relates to some matter in controversy affecting the rights of the parties, I do not see why it should not be looked upon as a ‘case’. This wide interpretation of the word ‘case’ is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction. Bearing in mind the above well established limitations on the exercise of this jurisdiction, it seems to me that no decision can be properly held to be a ‘case’ for the purpose of Section 115 of the CPC, unless it relates to some substantial question in controversy between the parties. I am supported in the view by the recent decision of — ‘Tarachand Ratan Chand v. Ved Parkash’, AIR 19133 Popsu 120 (Z42), wherein it has been held:

“The term ‘case’ mentioned in Section 115 of the CPC does not mean the whole case and is not synonymous with ‘suit’ or ‘cause’. It includes the case of one party as distinct from that of the other party.”

83. This was a case in which the lower Court had refused to frame an issue and it was held:

“a revision from such an order would lie and that the order on the point must be regarded as ‘case decided’.”

84. Thus my answer to the first question referred to by the Full Bench would be that the word ‘case’ is wide enough to include the decision of any substantial question in controversy between the parties affecting their rights even though such an order is passed in the course of the trial of the suit and that its scope should not be restricted to mean the whole suit and not a branch of the suit.

85. My answer to the second question would, be that an order under O. 18. R. 1 of the CPC can be deemed to decide a ‘case’.

86. By the Court: Let the opinions be sent to the Full Bench concerned: the answers to the question propounded are as follows:

(1)(a) Only such orders can be revised during the pendency of the suit as are not open to appeal either directly or indirectly and are separate from the principal current of controversy, in other words, as are in a sense independent of it, or

(b) Such orders as operate to terminate the suit itself

(2) An order under O. 13, R. 1 of the CPC directing a party to lead evidence does not constitute a ‘case’ decided within the meaning of Section 115 of the CPC.

A./D.R.R

87. Reference answered.