05 December 1958
Supreme Court
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CHAUBE JAGDISH PRASAD AND ANOTHER Vs GANGA PRASAD CHATURVEDI

Case number: Appeal (civil) 153 of 1955


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PETITIONER: CHAUBE JAGDISH PRASAD AND ANOTHER

       Vs.

RESPONDENT: GANGA PRASAD CHATURVEDI

DATE OF JUDGMENT: 05/12/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER DAS, S.K.

CITATION:  1959 AIR  492            1959 SCR  Supl. (1) 733  CITATOR INFO :  R          1970 SC1193  (8)  R          1970 SC1727  (7)  R          1979 SC 404  (23)

ACT:        Revision-Revisional  Powers  of High  Court-jurisdiction  of        subordinate  court dependent on existence of  fact-Erroneous        finding  as  to  such  fact-Competence  of  High  Court   to        interfere-Code of Civil Procedure (Act V of 1908), S. 115.

HEADNOTE: Landlord  and Tenant-Accommodation-Agreed monthly  rent  New construction-Enhancement  of rent-House Allotment  Officer’s findings-Power  of  the  civil courts to  interfere  U.   P. Templeton Control of Rent and Eviction Act, 1947 (U.P. 3  of 1947), SS. 2(a)(f) 3A, 5(4), 6. In  1938 the respondent took on rent from the appellant  the accommodation  in dispute on a monthly rent of  Rs.  21-4as. On  January 28, 1950, the appellant made an  application  to the  House  Allotment  Officer  under  s.  3A  of  the  U.P. Temporary  Control  of Rent and Eviction Act, 1947,  for  an increase  in rent, on the allegation that according  to  the instruction   of   the  respondent  lie  had  made   a   new construction in January, 1949.  The 734 Officer  considered that the accommodation was not  a  newly constructed  one  as the respondent had been a  tenant  from 1938, but he increased the rent to Rs. 40 per mensem on  the basis   of   the  building  that  was  added  by   the   new construction.   The  appellant thereupon instituted  a  suit under s. 5(4) Of the Act for the enhancement of " reasonable annual rent ". The respondent’s defence inter alia, was that the  new  construction  was undertaken in order  to  put  up another  storey on the top of the old building, that so  far as  the accommodation in his possession was concerned  there was  no  new construction of accommodation  after  June  30, 1946,  and that, therefore, the suit was  not  maintainable. The  trial  court  found  that  as  a  result  of  the   new construction the accommodation had increased and was of  the opinion  that  the portion of the building  which  had  been newly  replaced must be treated as a new  accommodation  and

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hence the, court could determine its rent under s. 5(4).  In revision,  the High Court held that though the  construction on  the upper storey was a new construction, so far  as  the accommodation  in  the  occupation  of  the  respondent  was concerned the construction could not be called a new one and therefore S. 3A of the Act was not applicable.   Accordingly the   revision  petition  was  allowed  and  the  suit   was dismissed.  On appeal by special leave to the Supreme  Court it was contended for the appellant that the House  Allotment Officer  having  decided in his favour the question  of  the date  of construction which S. 3A of the Act authorised  him to decide, the High Court could not in revision go into  the correctness  of  the  decision ; and, in any  case,  it  was within  the  jurisdiction of the trial court to  decide  the question  of  the date of construction and in  doing  so  it could  decide rightly or wrongly, and as the matter was  one of  fact the High Court had no power to interfere  under  s. 115 Of the Code of Civil Procedure. Held:(1) that a wrong decision made by the House Allot- ment Officer under s. 3A of the Act or an order made by  him in  excess  of  his  powers  under  that  section  could  be rectified by a suit under S. 5(4) of the Act; and (2)that  the maintainability of the suit brought under  s. 3A  of  the  Act  depended  on  the  determination  of   the jurisdictional  fact  i.e.,  date  of  construction  of  the accommodation,  whether it was after June 30, 1946,  and  if the  court  wrongly decided that fact  and  thereby  assumed jurisdiction not vested in it, the High Court had the  power to  interfere under s. 115 of the Code of  Civil  Procedure, and  once  it had the power it could determine  whether  the question of the date of construction was rightly or  wrongly decided. Joy  Chand Lal Babu v. Kamalaksha Chaudhury, (1949) L.R.  76 I.A. 131, relied on. Queen  v.  Commissioner for Special Purposes of  the  Income Tax,  (1888)  21 Q.B.D. 313; Venkatagiri Ayyangar  v.  Hindu Religious  Endowment Board, Madras, (1949) L.R. 76  I.A.  67 and Keshardeo Chamria v. Radha Kissen Chamria, [1953] S.C.R. 136, considered.             735 Rai Brij Raj Krishna v. S. K. Shaw and Bros., [1951]  S.C.R. 145, distinguished The relevant provisions of the Act are set out in the  judg- ment.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 153 of 1955. Appeal  by Special Leave from the judgment and decree  dated August  30,  1954,  of the Allahabad  High  Court  in  Civil Revision  Application  No. 540 of 1951, arising out  of  the judgment  and decree dated March 31, 1951, of the  Court  of the Additional Civil Judge, Mathura, in Suit No. 19 of 1950. G.   C. Mathur, for the appellants. C.   B. Aggarwala and Ganpat Rai, for the respondent. 1958.   December 5. The Judgment of the Court was  delivered by KAPUR,  J.-This  is an appeal by special leave  against  the decision of the High Court of Judicature at Allahabad passed in  revision  under s. 115 of the Code of  Civil  Procedure. The landlord who was the plaintiff in the trial court is the appellant before us and the tenant who was the defendant  is the respondent. The  facts  of this appeal are that in 1938  the  respondent

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took on rent the accommodation in dispute which is termed  a ’  tal’  on a monthly agreed rent of Rs. 21-4  as.  and  was using  the  same  for the purpose  of  stacking  timber.   A portion of it was a covered godown which had three walls and a  kucha roof.  On January 28, 1950, the appellant  made  an application  to the House Allotment Officer under s. 3-A  of the  United  Provinces  (Temporary)  Control  of  Rent   and Eviction Act, 1947 (U.  P. III of 1947) (hereinafter  termed the  Act) for the fixation of " reasonable annual rent "  of the  accommodation in dispute.  He therein alleged  that  in January  1949 he had " constructed anew " a big godown 80  x 25 x 11 feet according to the instructions of the respondent and  expended  a  fairly large sum of money on  it  and  was therefore entitled to a monthly rent of Rs. 165.  The  House Allotment  Officer fixed on February 18, 1950, the  rent  at Rs. 35 736 per  mensem which on review was raised on May 25,  1950,  to Rs. 40 per mensem.  He held that the accommodation was not a newly constructed accommodation as the respondent had been a tenant from 1938.  He determined the increase of rent on the basis   of   the  building  that  was  added  by   the   new construction.  He also held that: "  The  cost of land, the floor area of godown and  rent  of other  similar premises would be irrelevant as all of  these existed  before new construction and were included  in  rent before new construction ". The  appellant thereupon instituted a suit on the ground  of inadequacy  of the reasonable annual rent under s.  5(4)  of the Act alleging that he had constructed the portion of  the accommodation  " anew " and put up ferro-concrete roof 80  x 25  feet  and that the construction was  undertaken  at  the request  of  the respondent who had agreed to  pay  enhanced rent  but  had  refused to do so; that  although  the  House Allotment  officer,  Mathura,  had fixed  the  rent  of  the accommodation at Rs. 35 which wag subsequently raised to Rs. 40  per mensem, the proper rent should not be less than  Rs. 115 per mensem and therefore prayed for the enhancement of " reasonable annual rent ". The defence was that there was  no construction  at  the request of the respondent but  it  had been undertaken in order to put up another storey on the top of  the  old building; that as far as the  accommodation  in possession of the respondent was concerned there was no  new construction of accommodation after June 30, 1946; that  the ferro-concrete  roof  had in no way benefited  him,  on  the other hand the space at his disposal had diminished  because of the number of pillars constructed and the lowering of the roof.   He also pleaded that the suit was  not  maintainable under  the Act and that no suit could be filed "  after  the order of the House Allotment Officer ". The relevant  issues raised were :- (1)"  Whether the suit is not maintainable in view of  any provisions of the Act No. 3 of 1947 ? (2)Whether  the  suit after the fixation of  rent  by  the House Allotment Officer is not maintainable ? 737    (5) What should be the reasonable and proper rent of  the accommodation in suit ? " The  learned Additional Civil Judge found that the suit  was not  barred  because of the Act; that the suit  against  the order of the House Allotment Officer was maintainable;  that newly constructed accommodation on the whole was bigger  and more  spacious  than  the  old  kacha  hall  and  that   the accommodation   had   increased  and   after   taking   into consideration  the  amount  spent  on  the  construction  be

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increased the " reasonable adequate rent " to Rs. 55-8-0. Against this decree of the learned Judge the respondent took a  revision  to the High Court under s. 115 of the  Code  of Civil Procedure.  The High Court was of the opinion that  if the accommodation was a new construction erected after  June 30,  1946,  the suit was maintainable and-  the  High  Court could  not interfere with the finding of the Civil Judge  as to  the  amount  of  rent.   If  on  the  other  hand,   the construction  was an old one, the suit did not lie  and  the agreed rent would continue to be payable.  It also held that the construction on the upper storey was a new  construction but  as  far as the accommodation in the occupation  of  the respondent  was  concerned  the construction  could  not  be called  new  construction  and  therefore  B.  3-A  was  not applicable  and  as  no  suit lay at  the  instance  of  the landlord  to have the agreed rent enhanced, the  tenant  was only  liable  to  pay  the agreed rent  and  no  more.   The revision petition was therefore allowed and the suit of  the appellant was dismissed. The main controversy raised between the parties was  whether the  High Court could, in revision under S. 115 of the  Code of  Civil  Procedure, interfere with this  decision  of  the trial  court.   The respective contentions were  these:  The appellant  contended that it was within the jurisdiction  of the  Additional  Civil Judge to decide the question  of  the date of construction of the accommodation and in doing so he could decide rightly or wrongly as the matter was within his 93 738 jurisdiction  and therefore the High Court had no  power  to interfere  merely  because in its opinion the  decision  was erroneous.  In other words, this question was -merely one of the  facts  in issue between the  parties  unconnected  with jurisdiction.   He also contended that the  House  Allotment Officer  having  decided in his favour the question  of  the date of construction which s. 3-A of the Act authorises  him to  decide, his right to bring the suit was established  and therefore the High Court could not in revision under s. 115, Code  of  Civil Procedure, go into the correctness  of  that decision.   The  respondent’s  counsel  on  the  other  hand submitted  that the decision of the court as to the date  of construction  was in this case a jurisdictional fact i.e.  a fact which went to the root of the jurisdiction of the court because unless the accommodation was held to have been a new construction  made after June 30, 1946, the appellant  would be bound by the agreed rent and would have no right of  suit under  s. 5(4) and the court would have no  jurisdiction  to entertain  the  suit.  In order to decide  the  question  at issue, it is necessary at this stage to refer to the  scheme of  the Act.  The object of the Act was to  control  letting and   the   rents   of   residential   and    nonresidential accommodations. "Accommodation" was defined in s. 2(a) as follows: 2.(a)  "accommodation means residential and  non-residential accommodation  in any building or part of the  building  and includes................... " Reasonable annnal rent " is defined in s. 2(f): 2.(f)   "   Reasonable  annual  rent  in  the   case   of accommodation constructed before July 1, 1946, means (1)if  it is separately assessed to municipal  assessment, its municipal assessment plus 25 per cent thereon ; (2)if it is a part only of the accommodation so  assessed, the proportionate amount of the municipal assessment of such accommodation plus 25 per cent. thereon ; (3)  if it is not assessed to municipal assessment-

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739 (i)but was held by a tenant on rent between April 1, 1942, and June 30, 1946, fifteen times the rent for the one  month nearest to and after April 1, 1942, and (ii)if  it was not so held on rent, the  amount  determined under section 3-A and  in  the case of accommodation constructed on  or  after July  1, 1946, means the rent determined in accordance  with section 3-A ". As  to  how reasonable annual rent of a building was  to  be determined was provided for in s. 3-A: S.3-A " (1) In the case of any accommodation  constructed after  June  30, 1946, or falling under  subclause  (ii)  of clause  (3) of sub _ section (f) of section 2, the  District Magistrate  may, on the application of the land lord or  the tenant, determine the reasonable annual rent thereof. (2)In  determining the reasonable annual rent  under  sub- section (1) the District Magistrate shall take into account- (a)if  the  accommodation was constructed after  June  30, 1946,  the  cost  of construction  and  of  maintenance  and repairs  of the accommodation, its situation and  any  other matter, which in the opinion of the District Magistrate,  is material and (b)  if it is accommodation- (i)  falling  under clause (2) or sub-clause (1)  of  clause (3)  of sub-section (f) of section 2, the principles therein ,set forth, and (ii)falling under sub-clause(1) of clause (3) of subsection (f)  aforesaid,  the principles set forth in clause  (a)  of sub-section (1) of section 6. (3)Subject  to  the result of any suit  filed  under  sub- section  (4)  of section 5, the rent fixed by  the  District Magistrate under this section shall be the annual reasonable rent of the accommodation."  "  Agreed  rent  " was defined in s. 5(1)  of  the  Act  to be........................  the  rent payable  for  any  ac- commodation  to which this Act applies shall be such as  may be agreed upon between the landlord and the tenant." Section 5(4) of the Act provided: 740 " If the landlord or the tenant, as the case may be,  claims that  the  annual reasonable rent of  any  accommodation  to which the Act applies is inadequate or excessive, or if  the tenant claims that the agreed rent is higher than the annual reasonable  rent,  he may institute a suit for  fixation  of rent   in  the  Court  of  the  Munsif  having   territorial jurisdiction,  if the annual rent claimed or payable is  Rs. 500  or  less, and in the Court of the  Civil  Judge  having territorial  jurisdiction  if it exceeds Rs.  500,  provided that  the Court shall not vary the agreed rent unless it  is satisfied  that the transaction was unfair, and in the  case of  lease for a fixed term made before April 1,  1942,  that the term has expired ". Section  6  provided for the procedure as follows (1)  " In  determining the amount of annual or monthly  rent in  any  suit  under section 5 the  court  shall  take  into account- (a)in the case of accommodation constructed before July 1, 1946,  the  pre-war rent, the reasonable annual  or  monthly rent,  the  prevailing  rent on the date  of  the  suit  for similar   accommodation  in  the  locality,  the   cost   of maintenance  and  repairs  of  such  accommodation  and  any material  circumstances  proved  by  the  plaintiff  or  the defendant, (b)in  the case of accommodation constructed on  or  after

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July  1, 1946, the cost of construction and  of  maintenance and  repairs of accommodation, its situation and  any  other circumstance which the court may consider material. (2)No  appeal  shall lie from any decree or order  of  the Munsiff  or  the Civil Judge in a suit  brought  under  sub- section (4) of section 5: Provided  that  (except as regards the rate of rent  but  no further) the decree or order so passed shall not operate  as res judicata between the parties or their representatives in interest in any suit or proceedings under any other law It is not necessary to refer to other sections of the Act. The  Act therefore in the preamble sets out the  objects  of the Act.  In s. 2(a) it defined the meaning of                          741 the  word  accommodation’  to  mean  residential  and   non- residential  accommodation  in any building or part  of  the building and in s. 2(f) it laid down in three parts what the reasonable   annual   rent  was,  one  part   dealing   with accommodation constructed before July 1, 1946, and  assessed to municipal assessment, the second part with  accommodation so constructed and not assessed to municipal assessment  but held  by a tenant between April 1, 1942, and June 30,  1946, and  the  third part with accommodation  constructed  on  or after July 1, 1946, and these last two were to be determined in accordance with the provisions of s. 3-A which  empowered the  District Magistrate to do so.  Sub-section (1) of  this section  gave power to the District Magistrate to  determine the  reasonable  annual rent in the  case  of  accommodation constructed  after June 30, 1946, or falling under cl.  (ii) of sub-s. 3 of section 2 (f) i.e. if it was not assessed  to municipal assessment though constructed before July 1, 1946, and was not held by a tenant between April 1, 1942, and June 30,1946.  Subsection 2 of s. 3-A laid down the factors to be taken  into  consideration  in  determining  the  reasonable annual  rent and under sub-s. 3 the rent so fixed was to  be the annual reasonable rent of the accommodation but this was subject  to  the  result  of a suit  filed  under  s.  5(4). Therefore under s. 3-A the District Magistrate was  entitled to  determine  the  amount of reasonable  annual  rent  when either  of  the two facts on which his  power  depended  was shown  to exist i.e. (1) the accommodation  was  constructed after  June 30, 1946, or (2) although it existed  previously it was not assessed to municipal assessment and had not been held by a tenant on rent between April 1, 1942, and June 30, 1946.  The District Magistrate’s power to determine the rent under  s.  3-A therefore was not confined  to  accommodation constructed after June 30,1946, alone.  The rent  determined by  the District Magistrate under s. 3-A was the  reasonable annual rent under the Act subject to the result of any  suit filed  under  sub-s. (4) -of s. 5. A wrong decision  by  the District Magistrate under s. 3-A or an order made by him  in excess of his 742 powers under that section could be rectified by a suit under s. 5(4). This  provision of the Act i.e. s. 5(4) provided  for  three classes  of  suits, one by a landlord  that  the  reasonable annual  rent was inadequate and (2) by the tenant  that  the annual  rent was excessive and (3) also by the  tenant  that the agreed rent was higher than the reasonable annual  rent. Hence  under this section the appellant landlord’s right  of suit  was  restricted to challenging the inadequacy  of  the reasonable annual rent but he could not sue for varying  the agreed rent.  The appellant in the present case brought  his suit  on the around of inadequacy of the reasonable rent  as

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determined under s. 3-A and consequently its maintainability depended on the determination of the jurisdictional fact  i. e. date of its construction, whether it was before or  after June  30,  1946, on the decision of which would  depend  his right  to  bring  the  suit; because if  there  was  no  new construction,  the  agreed rent would be operative  and  the appellant  would have no right of suit under s. 5(4) of  the Act. Consequently,  by wrongly deciding this question  the  court would be entertaining a suit by the landlord for enhancement of the agreed rent and thereby assuming jurisdiction it  did not  possess  and the landlord would  be  circumventing  the restriction  on his right to sue for enhancement  of  agreed rent which the law did not allow. As the issues raised show the learned Additional Civil Judge was  alive to the fact that the maintainability of the  suit depended  on  the  determination  of  this  question.    The appellant  had specifically alleged that  the  accommodation had  been constructed after June 30, 1946, a fact which  was denied  by the respondent.  That gave rise to the first  two issues and the learned Civil Judge held:- " I am therefore of the opinion that portion of the building in  suit which has been newly replaced must be treated as  a new  accommodation, and hence this Court can  determine  its rent  under the provisions of s. 5(4).  In view of the  fact that it is a new 743 accommodation  no  question of agreed rent  arises  and  the landlord can bring a suit for fixation of rent ". Two facts therefore stand out clearly in the judgment of the trial  court  (1)  that  it was the  existence  of  a  newly constructed  accommodation  which gave jurisdiction  to  the court  to determine its reasonable annual rent and (2)  that as it was a newly constructed accommodation, the question of agreed rent did not arise. The  High Court, in our view, approached the question  quite correctly when it stated that the question for determination was whether the accommodation had been constructed before or after  June 30, 1946, and that if it was constructed  before that  date the suit was incompetent and if after,  the  suit would  lie.  The contention raised by the appellant in  this Court was that the decision of the trial Court as to whether the  accommodation was constructed before or after  July  1, 1946, cannot be challenged in revision in the High Court and he relied on the following observation of Lord Esher, M. R., in  the  Queen v. Commissioner for Special Purposes  of  the Income Tax (1):- "  When an inferior court or tribunal or body, which has  to exercise  the power of deciding facts, is first  established by Act of Parliament, the legislature has to consider,  what powers it will give that tribunal or body.  It may in effect say that, if a certain state of facts exists and is shown to such  tribunal  or  body before it proceeds  to  do  certain things,  it shall have jurisdiction to do such  things,  but not  otherwise.   There it is not for them  conclusively  to decide  whether  that state of facts exists,  and,  if  they exercise  the jurisdiction without its existence, what  they do  may  be questioned, and it will be held that  they  have acted  without jurisdiction.  But there is another state  of things  which  may exist.  The legislature may  intrust  the tribunal  or  body with a jurisdiction, which  includes  the jurisdiction  to determine whether the preliminary state  of facts exists as well as the jurisdiction, on finding that it does  exist, to proceed further or do something more.   When the  legislature  are establishing such a tribunal  or  body

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with limited jurisdiction, (1)  (1888) 21 Q.B.D. 313, 319. 744 they also have to consider, whatever jurisdiction they  give them, whether there shall be any appeal from their decision, for otherwise there will be none.  In the second of the  two cases I have mentioned it is an erroneous application of the formula  to  say that the tribunal  cannot  give  themselves jurisdiction  by  wrongly deciding certain facts  to  exist, because the legislature gave them jurisdiction to  determine all  the facts, including the existence of  the  preliminary facts  on which the further exercise of  their  jurisdiction depends;  and if they were given jurisdiction so to  decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.   These  observations  which relate to  inferior  courts  or tribunals with limited jurisdiction show that there are  two classes  of cases dealing with the power of such a  tribunal (1)  where  the  legislature entrusts a  tribunal  with  the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of  its jurisdiction  depends exists and (2) where  the  legislature confers jurisdiction on such tribunals to proceed in a  case where a certain state of facts exists or is shown to  exist. The  difference is that in the former case the tribunal  has power  to determine the facts giving it jurisdiction and  in the  latter case it has only to see that a certain state  of facts exists.  In the present case the appellant asked for a determination of reasonable annual rent under s. 3-A on  the ground that the accommodation was constructed after June 30, 1946, and the House Allotment Officer therefore had power to determine the reasonable annual rent. In  order to give jurisdiction to the civil court there  bad to be in existence a reasonable annual rent as defined under s. 2(f) whether it fell within its first two clauses or  was determined under s. 3-A.  The reason. able annual rent could be  varied at the instance of the landlord or the tenant  on the  ground  of its inadequacy or excess  but  the  landlord could  not. bring a suit to vary the agreed rent  nor  could the court entertain such a suit although it was open to  the tenant  to  do  so  and the  court  could  at  his  instance entertain 745 such a suit.  The proceedings before the civil court are not by way of an appeal from any order under s.  3-A made by the District Magistrate. Section  115,  Code of Civil Procedure,  empowers  the  High Court,  in cases where no appeal lies, to satisfy itself  on three  matters:- (a) that the order made by the  subordinate court  is within its jurisdiction; (b) that the case is  one in  which the court ought to exercise its jurisdiction;  (e) that in exercising the 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.   Per  Sir John  Beaumont  in Venkatagiri Ayyangar v.  Hindu  Religious Endowment  Board,  Madras (1).  Therefore  if  an  erroneous decision  of a subordinate court resulted in its  exercising jurisdiction not vested in it by law or failing to  exercise the   jurisdiction  so  vested  or  acting   with   material irregularity   or   illegality  in  the  exercise   of   its jurisdiction the case for the exercise of powers of revision by  the  High Court is made out.  In Joy Chand Lal  Babu  v. Kamalaksha  Chaudhury  (2), the subordinate  court  gave  an

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erroneous  decision that the loan was a commercial loan  and therefore  refused to exercise jurisdiction vested in it  by law and the Privy Council held that it was open to the  High Court  to  interfere  in revision under s.  115.   Sir  John Beaumont said at p. 142: " There have been a very large number of decisions of Indian High Courts on s. 115, to many of which their Lordships have been   referred.    Some  of  such  decisions   prompt   the observation  that  High Courts have not  always  appreciated that  although  error in a decision of a  subordinate  court does  not by itself involve that the subordinate  court  has acted  illegally  or  with material irregularity  so  as  to justify   interference   in  revision  under   sub-s.   (c), nevertheless,  if  the  erroneous decision  results  in  the subordinate court exercising a jurisdiction not vested in it by law, (1)(1949) L.R. 76 I.A. 67, 73. (2) (1949) L.R. 76 I.A. 131. 94 746 or failing to exercise a jurisdiction so vested, a case  for revision  arises under sub-s. (a) or sub.s. (b),  and  subs. (c)  can be ignored.  The cases of Babu Ram v. Munnalal  (1) and Hari Bhikaji v. Naro Vishvanath (2), may be mentioned as cases  in  which a subordinate court by  its  own  erroneous decison (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other on a   question  of  res  judicata,  invested  itself  with   a jurisdiction  which in law it did not possess; and the  High Court  held, wrongly their Lordships think, that it  had  no power to interfere in revision to prevent such a result.  In the  present  case their Lordships are of opinion  that  the High Court, on the view which it took that the loan was  not a commercial loan, had power to interfere in revision  under sub-s. (b) of s. 115 ". In Keshardeo Chamria v. Radha Kissen Chamria (3) both  these judgments  of  the  Privy  Council  as  also  the   previous judgments in Rajah Amir Hassan Khan v. Sheo Baksh Singh (4 ) and  Balakrishna Udayar v. Vasudeva Aiyar (5) were  reviewed and  it was held that s. 115 of the Code of Civil  Procedure applies  to  matters of jurisdiction  alone,  the  irregular exercise or non exercise of it or the illegal assumption  of it.   Thus if a subordinate court had jurisdiction  to  make the  order  it  made  and has not acted  in  breach  of  any provision  of law or committed any error of procedure  which is  material  and may have affected the  ultimate  decision, then  the High Court has no power to interfere.  But  if  on the other hand it decides a jurisdictional fact  erroneously and  thereby  assumes  jurisdiction  not  vested  in  it  or deprives itself of jurisdiction so vested then the power  of interference under s. 115 becomes operative. The  appellant also relied on Rai Brij Raj Krishna v. S.  K. Shaw and Bros. (6) where this Court quoted with approval the observations  of  Lord Esher in Queen  v.  Commissioner  for Special Purposes of the Income Tax(7) and The Colonial  Bank of Australia v. Willan where Sir James Co] ville said :- (1)(1927) I.L.R. 49 All. 454. (3)[1953] S.C.R. 136. (5)(1917) L.R. 44 I.A. 261. (7)(1888) 21 Q B.D. 313, 319. (2)  (1885) I.L.R. 9 Bom. 432. (4)  (1884) L.R. 11 I.A.237. (6)  [1951] S.C.R. 145. (8)  (1874) L.R. 5 P.C. 417, 443.                          747

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" Accordingly the authorities............... establish  that an  adjudication  by a Judge having  jurisdiction  over  the subject  matter is, if no defect appears on the face of  it, to  be taken as conclusive of the facts stated  therein  and that the Court of Queen’s Bench will not on certiorari quash such  an  adjudication  on the ground that  any  such  fact, however essential has been erroneously found ". But  these  observations  can have  no  application  to  the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of s. 5(4) of the Act.  And the power of the High Court to correct questions  of  jurisdiction is to be found within  the  four corners of s. 115.  If there is an error which falls  within this  section  the  High  Court  will  have  the  power   to interfere, not otherwise. The only question to be decided in the instant case is as to whether the High Court had correctly interfered under s. 115 of  the Code of Civil Procedure with the order of the  Civil Judge.   As  we  have held above, at  the  instance  of  the landlord  the suit was only maintainable if it was based  on the  inadequacy of the reasonable annual rent and  for  that purpose  the necessary jurisdictional fact to be  found  was the date of the construction of the accommodation and if the court  wrongly  decided  that  fact  and  thereby  conferred jurisdiction  upon  itself  which it  did  not  possess,  it exercised jurisdiction not vested in it and the matter  fell within  the  rule  laid down by the  Privy  Council  in  Joy Chandlal  Babu v. Kamalaksha Chaudhury (1).  The High  Court had  the  power to interfere and once it had  the  power  it could  determine  whether  the  question  of  the  date   of construction was rightly or wrongly decided. The High  Court held  that  the  Civil Judge had wrongly  decided  that  the construction  was  of  a  date  after  June  30,  1946,  and therefore fell within s. 3-A. In these circumstances the appeal must fail and is dismissed with costs throughout. Appeal dismissed. (1) (1949) L.R- 76 I.A. 131. 748