Devidas Maroti Boke v. Nilkanthrao Narayanrao Deshmukh

1. Does a civil revision lie on a question of limitation? That is what I have to decide now among other things. The defendant who is the applicant before me contends it does, the plaintiff, that it doss not. The former relies on 27 NLR 251 1931 Nag 17 , 130 IC 145 , 27 NLR 251, the latter, on 4 NLR 184 (1908) 4 NLR 184. The issue between them was referred to a Full Bench of the Judicial Commissioner's Court which decided that both rulings are right, and that the apparent conflict between them does not exist. We are therefore back where we were, when we started in so far as it still has to be decided whether 27 NLR 251 1931 Nag 17 , 130 IC 145 , 27 NLR 251 or 4 NLR 184 (1908) 4 NLR 184 applies to the facts of this case. The question arises in this way. One Hossain Naik who owned two houses mortgaged them to the plaintiff several years ago, and later sold them to the defendant, who undertook to satisfy the mortgage. This was on 22nd September 1922. In the same year the defendant demolished the house and removed most of the materials. After this, in the year 1930, the plaintiff sued on his mortgage, and obtained a preliminary decree for foreclosure on 29th January 1931. It was made final on 16th April 1932, but the plaintiff was naturally unable to obtain possession, as the property no longer existed. He therefore instituted the present suit for compensation. It was filed on 10th January 1933, and is obviously beyond time, if the date of the demolition is the starting point of limitation.

2. The plaintiff contends it is not.

3. He says he had no right to possession till he obtained his final decree for foreclosure on 16th April 1932, and so that must be the starting point. The lower Court agreed with him, and decided the preliminary issue on this point in his favour. It is not clear which Article of the Limitation Act the learned Judge has applied. He holds that neither Article 48, nor Article 49 can apply, because they both contemplate a suit by a person having a right to possession. But he does not say which Article would apply in their places, although he holds in the alternative that, even if they applied, the suit would still be in time, as limitation would not commence till the plaintiff's right to possession accrued on 16th April 1932. However, I need not pursue this further, for it seems to have been accepted throughout that, whatever the right Article may be, the suit would be within time, if limitation runs from 16th April 1932, and beyond time, if it does not. The question really turns on the character of the plaintiff's right, and the nature of his remedy. The lower Court's view is that the defendant's act in demolishing the house, and removing the materials, was not wrongful in its inception, because he had purchased the house and so had the right to repair and rebuild it, but that it became wrongful on the date of the final decree, when he neither replaced what he had removed, nor rebuilt what he had dismantled.

4. The contention on behalf of the defendant is that an act which was rightful in its inception cannot become wrongful, later. If it is wrongful it must have been so from the beginning, and consequently limitation would run from the date of the act itself. The argument on the other side is that the lower Court evidently regards the matter as one of conversion, and in that view of course it is right in holding that there is nothing wrong in a man doing what he likes with his own property even if it is mortgaged. The cause of action in snob, a case is not the demolition and removal, but the refusal to hand over the property when the plaintiff's right to it accrues. Now I am not here to consider which of these views is correct, or whether either of them is right. The plaintiff has brought a certain claim, and the lower Court considers he has a legal right to it, and that it is within time. Their Lordships of the Privy Council have pointed out in 40 Mad 793 1917 PC 71 , 40 IC 650 , 44 IA 261 , 40 Mad 793 (PC) at p. 799, that Section 115 of the CPC,

applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved.

5. If no such question is involved, then however wrong the decision may be, whether on facts or law, it is final so far as a Court of revision is concerned: 11 Cal 6 (1885) 11 Cal 6 , 11 IA 237 (PC), at p. 8; 16 Cal 749 (1889) 16 Cal 749 , 16 IA 104 , 5 Sar 362 (PC); 25 Bom 337 (1901) 25 Bom 337 , 27 IA 216 , 2 Bom LR 927 , 7 Sar 739 (PC), at p. 347 and 37 All 485 1915 PC 99 , 30 IC 849 , 42 IA 171 , 37 All 485 (PC), at pp. 494 and 495. In my opinion here can be no doubt that the lower court had jurisdiction to decide the natters at issue between the parties in his case. The distinction between an exercise of jurisdiction, and the existence of jurisdiction has been lucidly explained by Mookerjee, A.C.J, in 48 Cal 138 1921 Cal 34 , 58 IC 806 , 24 CWN 723 , 48 Cal 138 (FB), A pp. 148 to 150:

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

6. The list is not exhaustive. It is explained in an earlier passage that considerations of the place of suing, the value of the suit, and the nature of the subject, natter are also fundamental. But given these, “then jurisdiction is entirely independent of the manner of its exercise.” The former involves the power to act at all, and is independent of the decision reached in the exercise of that power. The latter is confined to “the authority to act in the particular way in which the court does act,” The test between the two is clear, and is given in the following words in that judgment:

The boundary between an error of judgment and the usurpation of power is this the former is reversible by an appellate Court within a certain fixed time and is therefore only voidable the latter is an absolute nullity.

7. 11 Bom 488 (1887) 11 Bom 488, at p. 491 is much to the same effect, and limits questions involving the existence of jurisdiction to matters relating either to “the person, the place, or the character of the suit.” These decisions have my entire and respectful concurrence. I have drawn a similar distinction between jurisdiction in its fundamental sense, and the powers exercisable after an assumption of it in 31 NLR 212 1935 Nag 33 , 157 IC 242 , 31 NLR 212, at p. 215. So there can be no question that the Court had jurisdiction to decide, as it did, and the only question is whether it acted illegally, or with material irregularity, within the meaning of Section 115(c) of the CPC. Here also I am clear, the matter is circumscribed by the decision of their Lordships of the Privy Council in 40 Mad 793 1917 PC 71 , 40 IC 650 , 44 IA 261 , 40 Mad 793 (PC) at p. 799. Even cl. (c) cannot be invoked “when the question of jurisdiction is not involved”; or at least a question of procedure, as explained by Sir Lawrence Jenkins in 41 Cal 323 1914 Cal 388 , 23 IC 977 , 41 Cal 323, at p. 338; for example, proceeding in the absence of a necessary party to the suit: 54 Cal 338 1926 PC 142 , 99 IC 749 , 53 IA 271 , 54 Cal 338 (PC), at p. 344. 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. A good working test would appear to be this: if the decision had been the other way, would the illegality still be there? If not, the flaw must lie in the decision, and not in the manner in which it is reached. Consequently it would not be revisable. It is possible this test would not work in every case. But where it does, it would seem to be decisive. In the present case the only matter which can be said to relate to jurisdiction is the decision, such as it is, about the nature of the suit. But under whatever head of law the claim may be said to fall, there is no doubt it is one of a civil nature cognizable by the lower Court. I am clear then that the decision whether on the question of limitation, or the character of the suit, or the starting point of limitation, is not revisable under S. 115.

8. It is true 27 Nag 251 1931 Nag 17 , 130 IC 145 , 27 NLR 251 interfered in revision on a question of limitation. It is unnecessary for me to decide whether this Court is bound by the decisions of the Judicial Commissioner's Court: 4 Rang 313 1927 Rang 4 , 98 IC 526 , 4 Rang 313 (FB); or whether I agree with that view. The reply from the Full Bench in this case explains that the lower Court, in 27 NLR 251 1931 Nag 17 , 130 IC 145 , 27 NLR 251 while professing to apply the provisions of Section 14 of the Limitation Act, actually acted in contravention of it. That has not happened here. All that the lower Court has done has been to decide the starting point of limitation, and that it had every power to do. So the matter does not fall within the purview of that decision. I desire to meet one more point.

9. It is urged that a question of limitation goes to the root of a claim, and if it is thrown out in the beginning, then parties are saved the trouble and expense of conducting a litigation doomed to failure from its inception, and the Courts, a useless waste of time. There is authority for that view. Judges have held that justifies the consideration of such questions in revision. In my opinion they are wrong. Considerations of this kind are irrelevant, moreover the argument ignores the other side of the picture. If the applicant fails in revision, the parties have been put to an expense, which might have been avoided, and the time of the High Court wasted in considering a case piecemeal. I can see no virtue in entertaining an application for revision in interlocutory matters on the score of a balance of convenience. This case, I may add, is an excellent example of that. The claim therefore falls within the purview of 4 NLR 184 (1908) 4 NLR 184 and not of 27 NLR 251 1931 Nag 17 , 130 IC 145 , 27 NLR 251. The application is rejected with costs, which will not be costs in the suit, and will include those of the Full Bench. Pleaders fee Rs. 50.

D.L/R.K

10. Application rejected.