ORDER OF REFERENCE

Bose, J.:— The question here is whether the High Court has jurisdiction to entertain a revision under Section 115 of the CPC, against an order of trial Court dealing with an amendment of a pleading and the framing of certain issues consequent on the amendment.

2. This is the sort of question which arises frequently and as Judges of this Court hold such widely divergent views on the subject, I feel the matter should be settled, at any rate in principle, by a Full Bench, particularly as it is one of great practical importance and seriously affects the conduct of trials, in the first Court, as also the length and costs of litigations. The immediate cause of the reference is a recent decision of Sen, J. in I.L.R (1945) Nag. 6341 at p. 640 with which with the utmost respect, I disagree, particularly as I have taken the contrary view in a series of cases. This conflict requires to be resolved.

3. The facts are as follows. The suit as originally framed was for possession, the plain-tiff basing his title on a document which purported to be a sale-deed. The defence to the action was that it was not a sale but a mortgage, and that accordingly the suit did not lie.

4. This issue was fought through three Courts and eventually a Division Bench of this Court held in a Letters Patent appeal (revising a decision of mine) that the document was a mortgage and not a sale. As a corollary to this the Division Bench permitted the plaintiff to amend his plaint and sue for foreclosure on the basis of the same document now held to be a mortgage. In a foot-note to its judgment the Division Bench said,

“Liberty to defendants to amend Written Statement if desired to contest new matter introduced but not otherwise.”

5. The defendants availed themselves of this permission and were permitted to amend by the first Court, that is, the Court to which the case had been remanded for a fresh trial on the basis of the amended plaint. Having permitted the amendment, the first Count struck certain issues—numbers 3 to 7 inclusive—on the basis of the amended written statement. These issues raise questions which had been raised, but not tried before the remand and which were repeated in the amended written statement. Plaintiff 1 objected, but the lower Court overruled his objections in the order now under revision, and the question now is whether the High Court has jurisdiction to entertain this revision.

6. I have long refused to entertain revisions of this interlocutory nature and very strongly hold the view, first, that the High Court has no jurisdiction in cases of this kind, and secondly that if it has, then, revision being a matter of discretion, it ought not to interfere.

7. Touching first the question of jurisdiction I will repeat what I have endeavoured to expound at length in a number of cases including the Full Bench case in I.L.R (1943) Nag. 1762 and a Full Bench in a criminal case reported in Crown v. Dattatraya Sadashiv Kharve3 where the view I took regarding the extent of a jury's jurisdiction has now been taken by the Privy Council in A.I.R 1946 P.C 151 at pp. 153, 154; also when sitting as a single Judge in I.L.R (1936) Nag. 73,5 and again in I.L.R (1941) Nag. 5436 at pp. 548, 550.

8. To begin with I think it is elementary that no appeal can be claimed as of right on grounds of justice or as inherent in the very nature of things. Unless a right of appeal is expressly conferred by statute there can be no remedy by way of appeal against an order of a Court made with jurisdiction however erroneous the order may seem to be. The Privy Council has so decided in 40 Mad. 7937 at p. 801, 11 Mad. 26,8 40 Cal 21,9 9 Lah. 28410 and in (1905) 74 L.J.P.C 7711 and so has this Court on many occasions, as for example, in I.L.R (1941) Nag. 58812 at p. 592. If this basic principle is accepted then it must follow that there is some fundamental distinction between a revision and an appeal. It is idle for the Privy Council to lay down this principle again and again if Courts are going to entertain an appeal in the guise of a revision whenever an appeal is not allowed by law and that is what must happen, and in fact does happen, when a clear cut distinction is not drawn between an appeal and a revision, and not merely drawn in theory but rigidly adhered to in practice.

9. Now, it is indubitable that the High Court has been vested with jurisdiction to entertain revisions in certain cases, but it is not an unlimited jurisdiction any more than its jurisdiction in second appeal is unlimited. As long ago as 1855, their Lordships of the Privy Council observed in 6 M.I.A 13413 at p. 155, that:

“Wherever jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these teems must be complied with, in order to create and raise the jurisdiction, for if they be not complied with the jurisdiction does not arise.”

10. I fully agree that the existence of jurisdiction usually involves the decision of some question of fact collateral to the main issue, and when that is the case

“The general rule is that where the jurisdiction of any tribunal depends upon facts, it has power to determine those facts. (Halsbury's Laws of England, Hailsham Edn., Vol. 26, page 279).”

11. Therefore, when the High Court decides that a certain matter lies within its revisional jurisdiction its order is not a nullity however wrong it may be. (See 2 Cal. 13114 at p. 141). But that, in my opinion, is no justification for usurping a jurisdiction which this Court does not possess if that is in fact the case, and to that extent the observations of the Privy Council which I have just cited stand.

12. It will perhaps be advisable to explain this at greater length, for, on the face of it, the matter seems anomalous. The truth is that term jurisdiction is used in two senses, one absolute and the other limited. In its absolute sense there is a complete lack of jurisdiction. Thus if the station master of some railway station purports to write a judgment and pass a decree there is complete absence of jurisdiction, and his so called order is a complete nullity. The same applies if a Civil Court attempts to encroach upon a province exclusively reserved by the legislature for a revenue tribunal and vice versa.

13. But in its second sense, though the matter touches jurisdiction, the order of a properly constituted Court vested with authority to decide the facts on which its jurisdiction rests is not necessarily a nullity. I will give two illustrations.

14. It is well known that the jurisdiction of the lower Courts is limited as to value. If a lower Court is invested with jurisdiction to entertain claims up to Rs. 5,000 it cannot proceed to decide cases in which the value of the subject-matter is say Rs. 7,000/- or even Rs. 5001/-. But it is obvious that some authority must be vested with jurisdiction to determine what the correct value of the claim is. That tribunal is the Court in which the suit is launched. If it holds that the value of the subject matter is below Rs. 5000/- then prima facie it is invested with jurisdiction to try the case, and if its order is not challenged or reversed either in appeal or by revision no objection on that score can be taken at a later stage. The decree cannot, for instance, be challenged in execution or in a subsequent suit. But as the question of valuation touches jurisdiction as it is one of the basic elements which go to build up the fabric of jurisdiction, the matter is revisable, because, however much the Court has authority in the first instance to decide whether it has jurisdiction nevertheless the fact which it is determining is not an issue on the merits but an issue of jurisdiction, and such an issue is always revisable. It is something which touches the Court itself.

15. The second illustration is taken from the Privy Council decision reported in 25 Bom. 332.15 One of the ingredients as to jurisdiction is as regards the person. A Court has no jurisdiction (except in certain cases which do not arise here, as for example, in matters which operate in rem) to decide matter foe or against persons who are not before it, that is to say, against persons who have not been joined to the action and who have not been noticed. Thus, if X wants a decree against A he cannot get it by joining B to the action and omitting A. But if a question arises regarding the identity of A and B appears before the Court and contends that he is B and not A, and the Court holds that he is A in spite of the fact that he is B then B is bound by the decree even if it is passed in A's name however grievous the Court's error may be, unless B has the matter set right by an appropriate tribunal.

16. Here again, the matter would be revisable. The Court is invested with jurisdiction to determine, in the first place, whether it has jurisdiction, that is to say, whether the person who appears before it is B or A. But the question it is determining is not one on the merits but whether it has jurisdiction. It is something which touches itself, and if it decides that B is A and not B (that was what happened in the Privy Council case) and if B does not have the error set right by the proper tribunal (which is also what happened in the Privy Council case) then B is bound by the decision and cannot challenge it either in execution or in a subsequent suit. That was what the Privy Council decided.

17. But that sort of situation can only arise in matters touching jurisdiction. It does not arise when the matter touches not jurisdiction, that is to say the right to entertain a claim at all, but the merits, that is to say, a decision by a competent Court, by which I mean a Court competent to entertain that sort of claim and to decide that sort of issue. Exactly what those matters include and embrace may sometimes give rise to difficulty, but in general there is no doubt. However, I will deal with this later.

18. This explains what is sometimes puzzling on the surface and explains what their Lordships of the Privy Council mean by saying that the Court has no jurisdiction to entertain second appeals on facts or revisions on the merits but nevertheless uphold their decrees and orders in subsequent proceedings despite that fact. It also explains the passage from Halsbury which I have just quoted.

19. The High Court is not invested with revisional jurisdiction in civil cases by the Letters Patent. Therefore, its sole authority to act in such cases is derived from the Code of Civil Procedure.

20. Now, the Code is clear regarding appeals. It provides for appeals from original decrees under S. 96 and for appeals from appellate decrees in S. 100. It also provides for appeals from certain orders under S. 104. Then Ss. 101, 102 and 104 say, that there shall be no other appeals apart from those expressly provided. I take it that is intended to have some meaning.

21. Then as regards revisions, S. 115 expressly limits them to the three cases mentioned therein. All three relate to jurisdiction. It will, therefore, be necessary to examine the meaning of jurisdiction.

22. It is defined in Halsbury's Laws of England (Hailsham Edn.) vol. 8, p. 531), to mean:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted.”

23. One of the tests given by Halsbury in an earlier passage regarding the superior Courts is,

24. “An objection to the jurisdiction of one of the superior Courts of general jurisdiction must show what other Court has jurisdiction, so as to make it hear that the exercise by the superior Court of its general jurisdiction is unnecessary.”

25. That does not apply in its entirety to a lower Court, but the test is nevertheless of value. If the lower Court had no jurisdiction to decide the matter in hand then what other Court had?

26. Now, we are concerned here with the amendment of a pleading and the framing of an issue. We are also concerned with the interpretation of a remand order by this Court. Let us consider the last of these first. When this Court makes a remand order and issues directions to a lower Court, which is the proper Court to read that order and interpret it? Surely, the only Court which can do that is the Court to which the matter is remanded. It may err in its interpretation but that is something quite different from its jurisdiction to entertain the remand and read and construe the order. The only Court which can do that is the Court to which the remand is made. If therefore the Court entertains the matter after remand, considers and construes the order of remand and reaches a judicial conclusion therein then, whether the conclusion is right or wrong, no question of jurisdiction is involved. It had jurisdiction and it exercised it.

27. Next consider the question of amendment. Has a trial Court, whether before or after remand, jurisdiction to allow or to disallow an amendment of a pleading? The answer is obvious. Order 6, R. 17 of the CPC, specifically provides for amendment and states that “The Court may at any stage of the proceedings etc.…”

28. Now, which Court is referred to? Surely, not the High Court. It is patent on the face of it that the application for amendment must be made to the Court which is at the moment of the application seised of the proceedings. It is equally patent that an application for amendment cannot be allowed automatically any more than it can be disallowed without consideration. There are rules which govern these matters and so some authority has to decide whether the application in question falls within the purview of those rules or not, and the only possible authority is the Court to which the application has to be made. In that event it is patent that is the Court which is vested with jurisdiction to determine this matter, and if that Court entertains the application and considers it in accordance with the prescribed forms of law, that is to say, after hearing the parties and so forth, and reaches a conclusion judicially, that is to say, after formally setting out reasons in writing, I find it impossible to say either that Court has not exercised a jurisdiction vested in it by law or that it has refused to exercise such a jurisdiction. What else is it doing when it decides the matter and either allows or disallows the amendment? What other Court has the authority and the power to entertain the application and decide it?

29. The same reasoning applies to the framing of issues. O. 14, R. 1 of the Code deals with the matter and lays down a set of rules. If is clearly for the Court which is seised of the proceeding to decide whether a particular issue arises or not and to decide the form in which it should be couched. As I say apply the test given in Halsbury. If that is not the Court to do this then what other is there? If the Code provides for a certain matter it is obvious that some Court must have the jurisdiction to deal with it, and if it is not the Court trying the case then what other Court is there?

30. It is perfectly true that after the case has been finally decided the appellate Court becomes seised of the matter if an appeal is preferred, and then it can, under S. 107, exercise all the powers of the first Court. But if the Coda expressly prohibits an appeal till the appropriate stage surely it equally prohibits the exercise of those interlocutory powers except in the narrow circumstances prescribed by S. 115. In any case it is obvious, to my mind, that the Court vested with jurisdiction to frame issues is the Court which is at the moment seised of the proceedings. Therefore, when it either frames an issue or refuses to frame one I find it impossible to say that it is not exercising jurisdiction, and even more impossible to hold that it is failing to exercise jurisdiction.

31. The distinction between an error of fact or law committed in the exercise of jurisdiction and an inherent lack of jurisdiction is brought out by the Privy Council in 2 Cal. 131 at p. 141.

“In the first case “(that is, when a Court of appeal is correcting an error of law made by a lower Court)” the Appellate Court reverses the order, because the Judge has erred in the mode in which he has exercised a judicial discretion; in the latter case “(that is, when the order is made without jurisdiction)”, it quashes the order, because there was no discretion at all to be exercised.”

32. This analysis reveals, to my mind, that cases like the present can in no event fall within clauses (a) and (b) of S. 116. I turn now to clause (c):

“To have acted in the exercise of its jurisdiction illegally or with material irregularity”.

33. I am clear that the words “illegally” and “material irregularity” do not cover either errors of fact or of law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been duly complied with both in letter and in spirit. As I have said in I.L.R (1936) Nag. 73 at p. 77.

“It must be something independent of the decision itself; an irregularity or illegality in the manner of arriving at it, not in the conclusion reached.”

34. I do not wish to be precise regarding this in fact that is impossible as well as undesirable. But, generally speaking, certain matters are now regarded as essential for a fair and proper trial. For example, both sides must be given an opportunity of appearing and of being heard. If they appear they must be heard. They must be given a chance of presenting their cases. The Judge must reach his conclusion judicially and not arbitrarily, and so forth. Therefore, if a Judge refuses to hear the parties or one of them, or if he flips a coin instead of applying his mind to the case and giving a judicial decision, or if he acts arbitrarily such as deciding on the colour of a man's eyes or that of his hair, or if he gives no reasons in cases where the law requires reasons to be recorded, then he is not complying with the procedure which the law prescribes for a fair and proper trial. In that event interference is called for under clause (c). But if he does all that and acts fairly and judicially the matter cannot, in my judgment, fall within clause (c).

35. I am in good company in so thinking. Sir Lawrence Jenkins, C.J so held in 41 Cal. 32316 and so did Woodroffe, J. Sir Lawrence Jenkins said at page 338.

“It appears to me that S. 115 can only be called in aid when the failure of justice (if any) has been due to one or other of the faults of procedure indicated in that section. If there was an error committed by Mr. Dobbin, it was an error of law and not of procedure and at page 337 the learned Chief Justice placed in a nutshell the exact position which applies in all these cases. He said:

“But how can it be fairly said that the Court failed to exercise a jurisdiction vested in it by law? It dealt with the matter; it was prepared to exercise its jurisdiction, but the learned Judge considered as a matter of law that there was no relationship of landlord and tenant. The Court was entitled to come to that conclusion even if it was erroneous, and if it did come to that conclusion it cannot be said that the Court has failed to exercise a jurisdiction vested in it by law.”

36. So also Woodroffe, J. said at page 339.

“Then as regards the alleged irregularity, this according to the general trend of the cases applies to the commission of an error of procedure.”

37. I followed this in. I.L.R (1936) Nag. 73 at p. 77 and again in principle in I.L.R (1943) Nag. 176, and in the latter case the Full Bench agreed with me; also in I.L.R (1938) Nag. 10617 at p. 112 that was actually the decision of another Full Bench regarding the construction of S. 115(c). and still later of a Division Bench in I.L.R (1941) Nag. 543 at pp. 556, 567. I cannot see how any other conclusion is possible in view of a series of Privy Council decisions quite apart from the intrinsic logic of the position.

38. In 40 Mad. 793 at p. 799 the Privy Council in dealing with S. 115 said;

“It will be observed that the section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. One section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved”.

39. Those words appear to me to be emphatic and to be free from any sort of ambiguity. But even if there is difficulty it is resolved by the illustrations given by their Lordships. One is (p. 799):

“If the civil Court should absolutely and whimsically decline to exercise its jurisdiction and to make any orders etc.….”

40. Another at p. 800:

“Any order made…… in disregard of the requirements of natural justice, such, for instance, as proceeding without giving the member sought to be removed notice, or affording him an opportunity of defending himself”.

41. Other attributes of jurisdiction will be found set out in Halsbury's Laws of England (Hailsham Edn.) vol. 8, pp. 531 to 537. They are as to area (territorial), as to value (pecuniary), as to subject-matter, and as to person. The question was elaborately discussed by Mookerji, Ag. C.J in a Calcutta Full Bench, 48 Cal. 13818 at pp. 148, 160, and that decision was followed by me in I.L.R (1936) Nag. 73 at p. 76.

42. This was the view of the Privy Council as early as 1884 under the old Code of Civil Procedure. Their Lordships said, construing S. 622 which corresponded to S. 115:

“The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity”.

43. The questions which the lower Courts had to decide in that case were of res judicata and of what is now O. 2, R. 2 under the present Code of Civil Procedure. The lower Courts there held that the suit was not barred for either reason and proceeded with the trial. The Court of the Judicial Commissioner entertained a revision and set aside the orders of the lower Courts on the ground they were wrong. The Privy Council held:

“The Judicial Commissioner had no jurisdiction in the case”.

44. And this not because the lower Courts were right but because whether they were right or wrong they had jurisdiction and accordingly the Judicial Commissioner had no jurisdiction to sit in judgment over them in revision.

45. I fail to see how anything can be stronger and more emphatic than this. I equally fail to see how an issue of res judicata or of O. 2, R. 2, is less fundamental or goes less to the root of a case than a question of amendment or the framing of an issue. After all the issues were framed by the lower Courts in that case and the Privy Council held that whether they were rightly framed or wrongly, whether the decision was right or wrong, the Judicial Commissioner had no jurisdiction to interfere in revision.

46. This decision was followed by the Privy Council 5 years later. The head-note in 16 Cal. 74919 runs:

“A decision by judgment of a competent Court whether right or wrong which by law is final and without appeal, were the Court has not acted in the exercise of its jurisdiction illegally, or with material irregularity, cannot be set aside under Section 622 of the CPC.:”

47. This was reiterated for a third time in 37 ALL. 48520 at pp. 494, 495:

“Their Lordships think it is very trite and very familiar that a challenge of the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction. The former has reference to the merits of the case”.

48. Now, it is pertinent to observe that with these three decisions before it the legislature did not see fit to alter S. 622 in any material respect when it enacted S. 115. I take it that was done with deliberate intent and I, think it is elementary that Courts in India are expected faithfully to carry out the intention of the Legislature and to obey the decisions of the Privy Council also to follow their own Full Bench rulings. This is particularly so when their Lordships have continued to construe the section as before in clear and emphatic terms. I have already referred to their decision in 40 Mad. 793 at p. 799. I have also referred to the Nagpur Full Bench in I.L.R (1938) Nag. 106 at p. 112.

49. In 25 Bom. 33721 at p. 347 the Privy Council again stressed the distinction between an error of law and an order made without jurisdiction. Their Lordships said:….

“In doing so the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken “[and I would add, if that course is not open under the law],” the decision, however wrong, cannot be disturbed.”

50. I might mention here that in cases where the High Court has wrongly interfered in second appeal on questions of fact the Judicial Committee have made the matter one of jurisdiction: See, for example, 18 Cal. 2322 at p. 30:

“It is enough in the present case to say…. that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be.”

51. That, to me, seems obvious. If the law is that no appeal shall lie except where a statute expressly provides for one and if a statute permits an appeal only under circumscribed conditions it seems obvious that if a Court entertains an appeal in circumstances which the law does not warrant it travels beyond its jurisdiction; and what applies to appeals appears to me to apply with even greater force to revisions. However, as revisions are so often entertained on discretionary grounds on matters touching the merits and having nothing to do with jurisdiction I will deal with that aspect also in case my views on the other matter do not meet with the approval of the Full Bench but before doing so I wish to repeat what I said as a member of the Full Bench in I.L.R (1943) Nag. 176 at p. 197. As I said there:

“I am not enamoured of the view that the High Court has the right to interfere on questions of law but that it need not do so unless it thinks fit and that it will not think fit unless there has been ‘substantial injustice’ and the like.”

52. I will not repeat here the reasons I gave there. All I will say is that:

“If the matter falls squarely within the ambit of its powers it cannot shirk a decision and it must act and decide according to the principles and laws which are administered in Courts of justice. It cannot pick and choose.”

53. Now, the usual ground given for interference at an interlocutory stage is that it cuts short litigation and saves the time of the Courts and the money of the parties. But is that really so? and in any event is it a valid consideration? I do not think so.

54. In one sense, of course, a decision by the High Court saves time tod money except the time and money of the State. But if that is a valid consideration every preliminary issue of law ought to be sent up to the High Court immediately. It will save time, the time of the first Court spent in hearing the arguments and in writing an order. Why bother about the decision of the first Court? and so also preliminary issues of fact. Let the first Court record the evidence and send the records to the High Court direct. Also, if it is legitimate for the High Court to cut short litigation by entertaining preliminary issues regarding limitation and res judicata and on questions of amendment in cases where an appeal from the decree would go to a lower appellate Court (as it would in the normal course in this case) then why is it not legitimate to skip a lower Court of appeal, come straight up to the High Court in revision and be done with it? Regarded from that angle the matter is obvious, but if so, where is the logic or the consistency in advancing the particular reason as a ground for interference in revision? The usual rule undoubtedly is that questions of limitation and res judicata and the like should be decided by the lower appellate Court in cases open to second appeal. A remedy by appeal is provided and so no revision lies; and that, with all due respect, is what S. 115 says. Apart from the limitations regarding jurisdiction the section lays down a second limitation, namely, ‘and in which no appeal lies.’

55. Now, of course, it is perfectly obvious that no appeal lies from an interlocutory decision of the nature we have here but an appeal does lie regarding the subject-matter of the decision and express provision for this is made in S. 105 of the Code. It states in substance that no appeal shall lie from interlocutory orders of the nature we are considering here but

“where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.”

56. Therefore, an appeal is directly provided, and as such questions do not touch jurisdiction S. 115 expressly bars their entertainment in revision. I do not see how Courts can ignore such express provisions on grounds of convenience.

57. Next, consider the absurdly illogical conclusions which flow from such a practice. Consider first a; question of limitation or res judicata. If a Court proceeds to decide either or both of these questions as a preliminary issue and reaches the conclusion that the suit is not barred, according to the view under consideration, a revision lies to the High Court. But if the Court reaches the other conclusion and dismisses the suit then an appeal lies to the lower appellate Court, and the matter cannot reach the High Court except by way of second appeal. In other words, if one side fails it has direct access to the High Court whereas if its opponent fails on the same issue he has to go to a lower Court. The same sort of situation can arise on a question of amendment.

58. Then consider another anomaly. Revisions are heard by single Judges whereas second appeals above a certain value are entertained by a bench of two Judges. In this very case I am asked to decide questions, sitting singly, which, in the normal course, would have been decided by a Division Bench. The anomaly is even greater in suits above the value of Rs. 10,000. The same point in the same litigation is decided by one Judge if one side loses and by two if the other side loses. Surely, any practice which leads to such absurdities is not only undesirable but must be radically wrong.

59. Next consider the sheet anchor on which this practice is usually defended, namely the shortening of litigation and the saving of costs and doing ‘justice.’

60. Now statistics show that a large percentage of cases which reach this Court are in the end dismissed. I do not know the exact figure but I am told it is in the neighbourhood of 75 to 80 per Cent. The exact figure does not matter but the percentage is large. I refer here to cases which are dismissed after being set down for hearing parties. I do not include in this those which are dismissed summarily. Therefore, what does this argument amount to in the end? In the majority of such cases the litigation is not shortened, on the contrary it is unduly prolonged and everybody's time and money are wasted. The result is that cases are admitted on this basis not in the hope of shortening litigation as a whole but in the sure knowledge that 75 per cent of litigants in this class of cases must be penalised in the hope that 25 per cent will benefit, and that their litigation must be lengthened and not shortened. That hardly seems fair or just.

61. I am strongly of opinion that justice delayed is justice denied and hold the view that anything which can reasonably be done to shorten litigation as a whole should be done. I am clear that it was never the intention of the legislature that cases should be tried piecemeal—bits by this Court, bits by another and the rest by a third. The whole scheme is to vest certain Courts with jurisdiction to try certain classes of cases and to leave them to try it, and leave them to decide the matter right or wrong. After the matter is finally concluded by a decree then and only then, save in special cases expressly provided for, can a higher Court entertain the question, and not even then if no appeal is allowed.

62. The High Court is given judicial superintendence over Courts subordinate to it but only for determining whether they are in fact vested with jurisdiction to try the issue in question and if so, to see whether the trial is proceeding in accordance with the usual and recognised forms of procedure. The revisional jurisdiction of the High Court does not, in my opinion, extend beyond that.

63. If it is legitimate to interfere on a question of amendment then why is it not proper to interfere when a Judge allows or disallows a question during the examination of a witness, or when he rejects a document? Once the principle which I am contesting is conceded it will be almost impossible to draw the line and the High Court will be flooded with applications as is being attempted now, and, if logic is to have any place, the High Court will be bound virtually to try the bulk of the cases in the Province.

64. I refer the following questions for decision by a Full Bench:

(1) Was I.L.R (1945) Nag. 634 rightly decided in so far as it holds that an order amending or refusing to amend a plaint or other pleading is open to revision?

(2) Has the High Court jurisdiction to entertain revisions touching

(i) the proper interpretation by a lower Court of a remand order,

(ii) a question of amendment of a pleading and

(iii) a question relating to the framing of an issue; and

(3) If there is jurisdiction ought the High Court, as a matter of discretion, to entertain such applications on such questions?

OPINION

Padhye, J.:— The following questions have been referred to us for decision:

(1) Was I.L.R (1945) Nag. 634 rightly decided in so far as it holds that an order amending or refusing to amend a plaint or other pleading is open to revision?

(2) Has the High Court jurisdiction to entertain revisions touching

(i) the proper interpretation by a lower Court of a remand order,

(ii) a question of amendment of a pleading, and

(iii) a question relating to the framing of an issue; and

(3) If there is jurisdiction ought the High Court, as a matter of discretion, to entertain such applications on such questions?

65. Civil Revision No. 275 of 1945 which came for hearing before Bose, J. gave rise to this reference by the learned Judge. This revision was against an order passed by the trial Court in Civil Suit No. 37 of 1933 allowing an amendment of the defendants' written statement and framing additional issues on the basis of the amended statement.

66. Civil Suit No. 37 of 1933, as originally instituted, was for possession of a field on the strength of a deed dated 24th April 1923 which, according to the plaintiffs, was a deed of sale with a condition for reconveyance, but according to the defendants was a mortgage by conditional sale. The plaintiffs succeeded in the trial Court and in the first and a second appeal and a decree for possession was passed in their favour. In the Letters Patent appeal by the defendants, a Divisional Bench of this Court held that the deed dated 24th April 1923 on which the suit was based was a mortgage with a condition of foreclosure and the plaintiffs' remedy was not to sue for possession as purchasers but to enforce and to foreclose the mortgage. The plaintiffs were permitted by the appellate Court to amend the plaint so as to convert it into a plaint for the enforcement of the mortgage. The defendants were also given liberty to amend their Written statement, if desired, and to contest such new matter as might be introduced by the plaintiffs by way of amendment of the plaint but not otherwise.

67. The defendants' application for amendment of the written statement was opposed by the plaintiffs mainly on the ground that the amendment sought was not necessary to contest any new matter introduced by the plaintiffs. The trial Court overruled the plaintiffs' objection and allowed the amendment and further struck additional issues (issues 3 to 7). This order was challenged in civil Revision No. 275 of 1945 before Bose, J. and the question before the learned Judge was whether the order could and should be interfered with by the High Court in its revisional jurisdiction.

68. In para 7 of the order of reference Bose, J. had made it clear that in his view the High Court has no jurisdiction to entertain revisions of this interlocutory nature and even if it has, then a revision being a matter of discretion it ought not to interfere. In his view the decision of Sen, J. in I.L.R (1945) Nag. 634 in which the learned Judge in his revisional jurisdiction set aside the order of the subordinate Court disallowing amendment was not correctly decided. The learned Judge being however aware that other Judges of this Court held widely divergent views on the subject decided to refer the questions stated above for decision by a Full Bench so that the matter could be settled at least in principle.

69. In Halsbury's Laws of England (Hailsham Edition) vol. 8, p. 632 the learned author observed:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented, in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted.”

70. In 48 Cal. 138 the Full Bench of the Calcutta High Court observed:

“The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and the subject-matter the decision of all other questions arising in the case is but an exercise of that jurisdiction.”

71. These observations are noted with approval by Bose, J. in I.L.R (1936) Nag. 73 at p. 76.

72. In the present reference, as I under, stand it, Boes, J. has raised questions both regarding the jurisdiction to entertain revisions of an interlocutory nature and to the exercise of that jurisdiction in a particular way only, i.e, by refusing to interfere with the order of the lower Court. Though the words used are not quite unambiguous, I understand Bose, J.'s view to be that the High Court has no jurisdiction to enter, tain revisions against interlocutory orders, i.e, against orders not disposing of the suit one way or the other but such orders as are passed from time to time in a pending suit deciding matters necessary for the further progress and the final disposal of a suit and that the High Court should never interfere with such orders of the subordinate Courts, even assuming that it has power in the exercise of its revisional jurisdiction to interfere.

73. The material points which need consideration in this reference are, in my opinion, as follows: (i) Whether the High Court has jurisdiction to entertain revisions against interlocutory orders particularly the orders mentioned in question (2) and (ii) If the High Court has jurisdiction, then revision being a matter of discretion, can the High Court lay down and should it lay down a positive rule that it should always exercise its jurisdiction in refusing to interfere in such revisions? I have not been able to find any principle on which the particular interlocutory orders which are specifically mentioned in question (2) are distinguished from other interlocutory orders.

74. It is pointed out correctly in para 19 of the order of reference that the revisional jurisdiction of the High Court in civil cases is derived from the Code of Civil Procedure (S. 115), and the proper analysis of that section is of great help in answering the points noted in para 8 above and in fact in deciding the questions referred to the Full Bench. In this respect I find the observations of the Divisional Bench of the Allahabad High, Court in 57 ALL. 81023 at p. 821 very instructive and they are reproduced below with approval:

“A preliminary objection is one that challenges the competence of a Court to hear and decide a particular case before it … … All that is necessary to bring into play the revisional jurisdiction of this Court under S. 115 is that (i) there be a case decided, (ii) the decision be of a Court subordinate to this Court, and (iii) the decision be not appeasable.’

75. The question whether or not the Court below exercised its jurisdiction illegally or with material irregularity is tantamount to the consideration of the revision on merits. It is one thing to say that the High Court has no jurisdiction to entertain an application in revision against a particular order passed by a particular Court, and it is quite another thing to say that, though this Court can entertain the revision application, it ought to reject it as in passing the order the lower Court did not assume jurisdiction that it did not possess or fail to exercise jurisdiction that it did possess or act in the exercise of its jurisdiction illegally or with material irregularity.

76. It is thus clear that the first part of Section 115 of the CPC, deals with the jurisdiction of the High Court to entertain revisions; that jurisdiction is made dependent on three conditions set out therein, and the power to exercise that jurisdiction is dealt with in the second part of the section and is dependent on the subordinate Courts being guilty of what is stated in cls. (a), (b) and (c) of the section. It is not disputed that the revisional powers are discretionary both in the matter of entertaining revisions and interfering with the order of the subordinate Court.

77. Out of the three conditions necessary for the exercise of jurisdiction to entertain revisions there is in the present case no dispute regarding two conditions, viz. that the order sought to be revised is passed by a Court subordinate to High Court and that no appeal from that order lies to the High Court. The question is whether the third condition on which the jurisdiction depend, namely whether it is a ‘case decided’ is satisfied.

78. For a long time the exact meaning and scope of the word ‘case’ was a subject of keen difference of opinion between different High Courts in India. The word ‘case’ is not defined in the Code of Civil Procedure or in the General Clauses Act or in any other Act. The dictionary meaning of the word is “the state, of facts juridically considered.” 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 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.

79. The Calcutta High Court always favourd the wider interpretation, as is clear from 14 Cal. 76824 and 62 Cal. 616.25 This is the view approved and followed by the High Courts of Madras and Bombay. The view of the Patna High Court appears by no means consistent, as is clear from the different views taken in 3 Pat. 93026 and 15 Pat. 340.27 This inconsistency is however now removed and a wider interpretation of the word ‘case’ is accepted in a Full Bench decision in A.I.R 1938 Pat. 22.28 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. These cases have been noted by Sen, J. in I.L.R (1945) Nag. 634 and need not be repeated fully here. In 13 N.L.R 20330 at p. 208 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.”

80. In 27 N.L.R 251 Niyogi, A.J.C laid down quite unequivocally that the word ‘case’ in Section 115 of the CPC, is wide enough to cover an interlocutory order.

81. These dicta have been followed by the Nagpur High Court in several cases.

82. In A.I.R 1938 Nag. 21031 Bose, J. 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. In another decision reported in A.I.R 1938 Nag. 35832 Bose, J. observed that the High Court would 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. In I.L.R (1942) Nag. 25833 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.

83. The other group of High Courts which at a time favoured the narrow view and held that no revision could be entertained against interlocutory orders consisted of the Allahabad, Lahore and Lucknow High Courts. Even these Courts have however changed their views and are now in line with other High Courts in adopting liberal interpretation of the word ‘case.’ So far as the Allahabad High Court is concerned this change is apparent from the decision in 48 ALL. 175.34 In I.L.R (1940) ALL. 56435 the Allahabad High Court held that an order refusing an amendment of the plaint is a case decided within the meaning of Section 115 of the CPC, and a revision lies against it. In 57 ALL. 67836 it was held that where an application to join a party to a suit was disposed of without proper consideration and on a misapprehension of its nature a revision lies against that order under Section 115 of the CPC.

84. In 3 Luck. 65037 an order of stay in a pending suit was held to be within the purview of Section 115 of the CPC. In 5 Lah. 28838 consisting of five judges it was held by majority that the word ‘case’ should be read in a restricted sense so as not to include interlocutory orders. That High Court in a later Full Bench decision in I.L.R (1943) Lah. 25739 reconsidered its earlier Full Bench decision and after considering the entire case law on the subject held that the word ‘case’ in Section 115 of the CPC, is wide enough to include interlocntory orders. In that case the order of the subordinate Court staying the suit on receipt of a robkar from the Debt Conciliation Board was held to be a case within the meaning of S. 115 of the Code. The divergence of view can now be said to have been resolved in favour of the liberal interpretation of the word according to which the word ‘case’ includes interlocutory orders.

85. 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 mentioned 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. In this connection the following observations of the Madras High Court in I.L.R (1942) Mad. 453. are worth noting:

“The fact that a finding on a question of jurisdiction could be challenged in an appeal from the decree passed in the suit does not preclude the High Court from interfering in revision on a question of jurisdiction when it arises at a preliminary stage in a suit.”

86. It does not however follow that the High Court will interfere with every order against which a revision is entertainable. The interference will depend firstly upon whether the requirements of clauses (a), (b) and (c) of Section 115 of the CPC, are satisfied and secondly on the Court's regarding it a proper case where the discretionary power of revision should be exercised.

87. It was pointed out by Woodrooffe, J. in 41 Cal. 323 that S. 115 could only be called in aid when the failure of justice, if any, has been done due to one or other fault of procedure mentioned in clauses (a), (b), and (c) of Section 115 of the CPC. The High Court would not exercise its revisional jurisdiction only because the subordinate Court has gone wrong on facts or on law. Their Lordships of the Privy Council very aptly pointed out in 11 Cal. 641 that when a Court decides a suit with jurisdiction that decision cannot, merely on account of the fact that it was wrong, be said to be without jurisdiction as a Court acting with jurisdiction has jurisdiction to decide rightly or wrongly.

88. In 40 Mad. 793 their Lordships again pointed out:

“It will be observed that the section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.”

89. Clauses (a) and (b) of S. 115 which deal with usurpation of jurisdiction and the non-exercise of jurisdiction are simple enough, and Bose, J. has correctly pointed out that though the subordinate Court decides that a certain matter lies within its jurisdiction that order is not a nullity; but where such an order results in the usurpation of jurisdiction which that Court does not possess to that extent that order is open to revision. In other words, where the issue is an issue of jurisdiction it is always open for revision. The real difficulty is experienced in the application of clause (c) of S. 115 where the subordinate Court is accused of having acted within its jurisdiction illegally or with material irregularity.

90. It is difficult to lay down exhaustively what constitutes acting illegally or with material irregularity and also to narrate the circumstances when the High Court should and when it should not exercise its discretionary power of revision. These matters have to be decided on the facts and circumstances of the individual case judged in the light of the rules of procedure and the principles which can be gathered from the several reported decisions, a few of which are noted below:

In I.L.R (1937) ALL. 80542 it was held that where the Court failed to consider a material question and did not apply its mind at all to the mandatory provisions of the law relevant on the question it acted in the exercise of its jurisdiction with material irregularity.

91. In 57 ALL. 668 it was observed that where an application to join a party was disposed of without proper consideration and on a misapprehension of its nature it is a material irregularity.

92. In 56 Bom. 58543 at p. 589 it is observed that a wilful disregard or apparent violation of any provision of law amounted to acting with material irregularity.

93. In 58 Mad. 93644 it was held that there the previous order of the Court was misinterpreted or misconstrued and as a result the Court did not go into the application under O. 21 R. 97 of the CPC it amounted either to a failure to exercise jurisdiction or to the exercising of the jurisdiction with material irregularity.

94. In 15 Luck 64145 it was held that where a Judge proceeds with a suit as a result of misinterpretation of law, for example, Section 10 of the CPC, he acts with material irregularity.

95. A wrong interpretation of the provision of law renders the orders of the subordinate Court open to revision as held in I.L.R (1945) ALL. 604.46 In 25 Pat. 5847 it was held that where the Court misinterprets the statutory provision and commits a mistake with regard to the ambit of its jurisdiction its order is open to revision. In I.L.R (1946) Mad. 64048 it was held that an abuse of the powers of the executing Court is a ground for revision. In 21 Luck. 16749 it was held that the High Court should interfere if non-interference would result in multiplicity of suits, delay and unnecessary expenses to the parties. Many more cases can be collected, and in fact some of them were cited at the in which the High Court either interfered or refused to interfere in revision. I however think it needless to refer to them. The aforesaid citation is sufficient to show that no hard and fast rule can be laid down for the application or otherwise of clause (c) of Section 115 of the CPC or for the exercise of the revisional jurisdiction which is after all discretionary and each case must be considered on the facts and circumstances of that case.

96. Before the High Court entertains a revision it shall have in every case to decide (i) whether it has jurisdiction to entertain a revision, i.e, whether the conditions mentioned in Part 1 of S. 115 are satisfied, (ii) whether it has power to interfere with the order of the lower Court, i.e whether the subordinate Court has committed an error which fell under clauses (a), (b) and (c) of S. 115, (iii) and whether in the circumstances of the case it should in its discretion exercise the revisional power and interfere with the order of the subordinate Court and pass any suitable order in the case. It would indeed be trenching on the province of legislature to lay down that particular order or an order dealing with a particular subject should not be interfered with or that the High Court should, as a rule, exercise its jurisdiction in not interfering with the interlocutory orders of the subordinate Court because they deal with particular subjects or only because they are interlocutory.

97. The trial Court has no doubt a jurisdiction to interpret the order of remand. It does not however follow that the High Court has no jurisdiction to entertain a revision and to interfere with the lower Court's order passed as a result of its interpretation and that such a revision should always be rejected. A patent mistake in interpreting the remand order and the violation of well-established principles of interpretation would amount to acting with material irregularity specially when the interpretation is so unjustified or patently wrong that the lower Court could not be deemed to have applied its mind in interpreting the remand order. Where, moreover as in this case, the interpretation of the remand order is linked with the question of jurisdiction of the subordinate Court after remand it would be open to revision if by putting a wrong interpretation the subordinate Court either enlarges its own jurisdiction or narrows it down.

98. In 58 Mad. 936 the executing Court passed an order in a claim petition under O. 21, R. 58 of the CPC. It was dismissed subject to note that whatever interest the defendant has in the lands be put to auction and the petitioner's rights are not prejudiced thereby. This order was misinterpreted by the Court and it consequently declined to go into the merits of the case when an application was filed by the claimant for enquiry into his claim that he had permanent occupancy rights. It was held that the order of the Court was liable to be revised. In the present case, the jurisdiction of the trial Court in the matter of allowing or refusing amendment of the defendants' written statement was limited by the remand order and the interpretation of that order was therefore linked up with the question of jurisdiction.

99. It is true that under O. 6, R. 17 of the CPC, the power to allow or refuse amendment is in the discretion of the trial Court. It has, however, to exercise that, discretion according to judicial principles which are well recognised and according to the rules laid down for the guidance of the subordinate Courts, as will be found in the reported cases e.g, 48 Cal. 11050 and 48 Cal. 832,51 I.L.R (1939) Nag. 19452 and others. The High Court before refusing to interfere with the order of the subordinate Court has to satisfy itself that the subordinate Court did judicially exercise its discretion and did not merely make a show of doing so. It has further to satisfy itself that the subordinate Court has not passed its) order by violating the well-established principles of law and relevant rules on the subject. Where a subordinate Court is however found to have acted illegally or with material irregularity, in either not allowing or allowing amendment, such an order, even though discretionary, would be open to revision. According to O. 6, R. 17, ‘all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.’ In a case reported in I.L.R (1945) Nag. 634 Sen, J. found that the order of the subordinate Court refusing to allow amendment sought to be revised in that case deprived the party of the opportunity of placing his case before the Court so as to enable it to determine the real question in controversy between the parties. This was contrary to O. 6, R. 17 of the CPC, and the subordinate Court was guilty of either not exercising jurisdiction vested in it by law or of exercising it with material irregularity. It is on this ground that Sen, J. interfered with the order of the subordinate Court and allowed the amendment which fell within the ambit of O. 6, R. 17 of the Code. I do not find anything wrong with this decision.

100. The subject of settlement of issues is dealt with in O. 14 of the CPC and Rule 1(3) of the Order provided that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. The material propositions as defined by R. 1(2) of O. 14 are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. If a Court refused to frame an issue on a material proposition affirmed by one party and denied by the other, it would be guilty of not exercising jurisdiction vested in it by law requiring it at the first hearing of the suit to record issues on which the right decision of the case, depends. If, on the other hand, it framed issues which do not arise out of the material propositions of law or fact affirmed by one party and denied by the other, it would be acting either in excess of its jurisdiction or with material irregularity, and in either case the order of the subordinate Court may be open to revision. In fact, by refusing to frame an issue which actually does arise in the case, the Court shuts out a trial of a part of his case. In such a case it would be necessary for the High Court to interfere in revision and to set the matter right so as to avoid waste of time and costs: 21 Luck. 167.

101. I am however in agreement with Bose, J. that the revisional jurisdiction of the High Court under Section 115 of the CPC, should not be so liberally exercised as to convert a revision into an appeal and further that every order of the sub-ordinate Court should not be interfered with only because it was wrong either in law or on facts. I also agree that the revision against an interlocutory order should not be encouraged unless it was necessary to interfere with the order at that stage in order to shorten litigation and to avoid waste of time and money. It is however necessary, on the other hand, that Section 115 of the CPC, should not be too narrowly and too technically construed as it provides a salutary check on the careful discharge of functions by the subordinate Court. It is necessary in the interests of justice that there should be a tribunal where patent injustice can be removed, and removed in due time. Section 115, if properly construed, affords sufficient guarantee against unwarranted use of be revisional powers of the High Court. It is neither proper nor permissible that new terms and conditions should be introduced by Courts into S. 116 and on which either the entertaining of a revision or the exercise of the power of interference should be made dependent. It is equally not proper and not permissible that a rigid rule should be laid down by the High Court that particular revisions should either be not entertained or that those revisions should always be dismissed.

102. In the light of what has been said above, my answers to the questions referred are: Question 1: In the affirmative. Question 2: In the affirmative. Question 3: No hard and fast rule can be laid down; each case should depend on its own facts and circumstances and the discretion should be exercised judicially and according to correct and well-established principles.

Pollock, J.:— I agree in the answers proposed by Padhye, J. but I wish to add a few words.

103. I am not quite sure what Bose, J. means by “entertain revisions” in the second question that he has posed. If there has been a case decided by a civil Court and no appeal lies, then it is clear from Section 115 of the CPC, that the High Court has power to send for the record. If Bose, J. meant more than that by “entertain revisions” and was asking whether the High Court has power to interfere in revision, then that depends on whether in such a case the subordinate Court has acted in a way hit by cl. (a) or (b) or (c) of Section 115.

104. I agree with Bose, J. that, if the lower Court has jurisdiction to decide a point and has decided it, then neither cl. (a) nor cl. (b) can ordinarily apply, but I think there may be cases in which, as Bose, J. has put it, the fact which the Court is determining is not an issue on the merits but an issue of jurisdiction, in which case the finding may be revisable. When a case has been remanded to the lower Court for decision of a particular issue I do not think that the Court has jurisdiction to decide any other issue, nor has it jurisdiction to misinterpret the order of remand so as to get jurisdiction to decide some other issue, and therefore there may be cases in which it is permissible to interfere under cl. (a). So also it may be permissible to interfere under cl. (b) if the Court refuses to decide the issue sent down for trial. These difficulties however could be avoided if remand orders were more clearly worded.

105. In most cases, however, there is no question of exercising a jurisdiction that is not vested in the Court or refusing to exercise a jurisdiction that is vested, and the question turns on whether the Court has acted illegally or with material irregularity. I agree with the dictum of Sir Lawrence Jenkins, C.J in 41 Cal. 323 that there must be an error of procedure and not merely of law to justify interference under cl. (c). I also agree with what Bose, J. said in I.L.R (1936) Nag. 73 that “It must be something independent of the decision itself; an irregularity or illegality in the manner of arriving at it, not in the conclusion reached,” though I find some difficulty in reconciling that dictum with his decision in I.L.R (1938) Nag. 106 where he held in effect at p. 112 that a wrong decision by a Court that the court-fee paid is inadequate is a material irregularity, however correct the procedure may have been because it shuts the plaintiff out from all hope of redress in the suit itself, assuming of course that he refuses to pay the additional court-fee demanded, with the result that the application for revision is treated as if it were an appeal. It is, however, I think 1 impossible to define what is meant by “illegally or with material irregularity,” as Bose, J. himself has recognized; but I think that there may be an illegality or material irregularity if the Court acts in obvious disregard of some statutory enactment or some well-established principle. That, in my opinion, might amount to an error of procedure and not merely an error of law.

106. I would therefore say that there may be cases in which the High Court has power to interfere in revision with the lower Court's interpretation of a remand order or on a question of amendment of a pleading or on a question relating to the framing of an issue, and I would say that I.L.R (1945) Nag. 634 was rightly decided in so far as it held that such an order may be open to revision. On the question whether the Court rightly interfered in revision in that particular case I think it unnecessary to express any opinion. Finally, I agree with Bose, J. that the less interference by this Court in interlocutory matters the better, and that, while interference in some cases may do good, interference on the whole probably does, more harm than good. The harm is done when notice is issued. If, after the issue of notice and the lapse of perhaps two or three years, the parties appear before the Court and the case is argued, then the Court might as well interfere and put the matter right. Ordinarily, however, I would say that the interests of justice are better served by allowing the lower Court to proceed in its own way and that it is undesirable to delay the decision in many cases in order to do good in a few. I do not, however, think it possible to lay down any hard and fast rule about how this jurisdiction to interfere should be exercised.

Hemeon, J.:— I concur in the answers given by Padhye, J. and in the observations of Pollock, J. and have nothing to add.

107. Answered accordingly.