‘Case’ and ‘Suit’: Distinction
Q. Differentiate the words ‘case’ and ‘suit’?
The meaning of expression ‘case’ being of a comprehensive import, it includes civil proceedings other than suits and it is not restricted to the entirety of the proceedings in a civil suit. To interpret ‘case’ as in entire proceedings, and not a part of proceedings, would be to restrict the supervisory jurisdiction of the High Court resulting in gross injustice to an aggrieved litigant. In view of that, ‘case’ includes a part of the case, there is no escape from the conclusion that a revisional jurisdiction may be exercised in respect of the question whether an appeal lies from the ultimate order or decree passed in the suit.1 Therefore, the word ‘case’ is more comprehensive than the word ‘suit’; Patna Municipal Corporation v. Brij Raj Krishna, MANU/BH/0011/1958 : AIR 1958 Pat 22.
Section 115 of the Code of Civil Procedure, 1908 is clearly limited to keep subordinate courts within the bounds of their jurisdiction. This section concerns jurisdiction alone involving:
(i) exercise by court of jurisdiction not vested in it by law; or (ii) failure to exercise jurisdiction; or
(iii) a court in exercise of its jurisdiction has acted illegally or with material irregularity-.
______________
1. Mulla on Code of Civil Procedure, 16th Edn., Vol. 1, p. 1206.
The word ‘jurisdiction’ originally seems to mean the entitlement ‘to enter upon the enquiry in question’. In MX. Sethi v. R.P. Kapur, MANU/SC/0245/1972 : AIR 1972 SC 2379: (1972) 2 SCC 427: (1973) 1 SCR 697 it was held by the Supreme Court, through Mathew, ]. that, “it is a verbal case of many colours.” A court may have jurisdiction to entertain a suit or appeal, and yet it may have no jurisdiction to pass a particular order in the suit or an appeal. Section 115 is not attracted against a conclusion of law or of a fact, in which question of jurisdiction is not involved. However, where the question of court-fee simpliciter, in case of a combined question of court-fee and jurisdiction, the defendant can request the High Court to interfere in a revision with the impugned order of the lower court; A.P. State Electricity Board v. K. Venkateswara Rao, MANU/AP/0087/1981 : AIR 1981 AP 197.
(i) Exercise by court of jurisdiction not vested in it by law.–
Where a Civil Court exercised jurisdiction not vested in him by a statue and violated the procedure laid down by the statute and thus, committing an illegality in exercise of its jurisdiction, the High Court must rectify the error by the exercise of its revisional jurisdiction; Chandrika Singh v. Raja V.P. Singh, MANU/SC/0241/1992 : (1992) 3 SCC 90: AIR 1992 SC 1318: JT 1992 (3) SC 55: (1992) 1 SCALE 883: (1992) 2 SCR 640. Following cases reflect unauthorized jurisdiction by subordinate court:
(a) assumes jurisdiction beyond its pecuniary or territorial limit or by reason of subject-matter of suit; or
(b) entertains an appeal from an order which is not appealable; or
(c) entertains a suit or appeal which it has no jurisdiction to entertain; or
(d) making ultra-vires order; or
(e) grant an injunction without considering whether a prima facie case is made; or
(f) allows withdrawal of suit on a ground not contemplated under Order XXIII, rule 1; or
(g) directs a subordinate court to try a suit not triable by it.
There is distinction between cases in which on a wrong decision the Court has assumed jurisdiction which is not vested in it and those in which in exercise of its jurisdiction the Court has arrived at a conclusion erroneous in law or in fact. In the former class of cases. Revisional power is permissible, while in latter class of cases it is not. Thus, if by an erroneous decision on a question of fact or law touching its jurisdiction, the subordinate court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final and is subject to the revisional jurisdiction of the High Court under section 115 [M.L. Sethi v. R.P. Kapoor, (1973) 11 SCJ 543].
(ii) Failure to exercise its jurisdiction.–
Where a court having jurisdiction to decide a matter, thinks erroneously under misapprehension of law or fact that it has no jurisdiction and declines to exercise it, the High Court can interfere in revision.
(iii) Exercise of jurisdiction illegally or with material irregularity.–
The expression “illegality” and “material irregularity” cannot be precisely defined but the substance can be culled from the observations of the Supreme Court in D.L.F. case.
In D.L.F. Housing & Construction Co. Ltd. v. Sarup Singh, MANU/SC/0491/1969 : AIR 1971 SC 2324: (1969) 3 SCC 807: (1970) 2 SCR 368, the Supreme Court observed that:
“While exercising the jurisdiction under section 115, it is not competent to the High Court to correct error of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself… The words “illegally” and “with material irregularity” do not cover either errors of fact or of law, they do not refer to the decisions arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to the breach of some provision of law or to material defects of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law; after the prescribed formalities have been complied with.
Five instances of material irregularity are:
(1) court decides the case without considering evidence on record;
(2) evidence not legally taken or otherwise inadmissible;
(3) fails to follow a decision of the High Court to which it is subordinate;
(4) follow a decision inapplicable to the facts of the case;
(5) framing issues wrongly places burden of proof, etc.
Section 115 bestows revisional power on the High Court with a view to subserve and not to defeat the ends of justice. Where substantial justice has been done by the orders of the lower court, the High Court will not interfere with it, in the “Revision” in spite of the fact that the reasons or the order are not correct or the order is improper or irregular. If order reflect grave injustice or hardship or substantial failure of justice, the High Court will interfere. High Court will not exercise revisional jurisdiction in case the aggrieved party has alternative remedy, available against the order passed by lower court, or who suppresses material fact from the Court. Another exception was introduced by the Code of Civil Procedure (Amendment) Act, 1999, by adding provision its sub-section (1) of section 115 stating that High Court shall not vary or reverse any order passed in course of a suit or other proceedings except where the order, if it had been made in favour of the applicant, it would have finally disposed of the suit or other proceedings.
Sub-section (2) as inserted by the Amendment Act of 1999 clarifies that mere filing of revision in the High Court would not operate as stay of suit or other proceeding are pending unless such stay is granted by the High Court.
The High Court will exercise revisional powers on the application of aggrieved party, but in appropriate cases where the conditions laid down in this section are satisfied, it may suo motu call for any record and pass necessary orders. The Supreme Court in Swastik Oil Mills v. H.B. Munshi, MANU/SC/0317/1967 : AIR 1968 SC 843: (1968) 2 SCR 492: (1968) 21 STC 383 (SO held, the proceeding for revision, if started suo motu, must not, of course, be based on a mere conjecture and there should be some ground for invoking the revisional powers. Once those powers are invoked, the actual interference must be based on sufficient grounds, and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding the further enquiry or directing such an enquiry to be held by some appropriate authority