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PETITIONER: M. L. SETHI

       Vs.

RESPONDENT: R. P. KAPUR

DATE OF JUDGMENT19/07/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN REDDY, P. JAGANMOHAN

CITATION:  1972 AIR 2379            1973 SCR  (1) 697  1972 SCC  (2) 427  CITATOR INFO :  F          1977 SC 477  (6)  RF         1978 SC1341  (12)  E          1988 SC1531  (189)  R          1992 SC 232  (30)

ACT: Code  of Civil Procedure (Act 5 of 1908), s. 115  and  O.33, rr. 6 and I-Jurisdictional error, what is-Power of Cour.  to order discovery of documents relating to pauperism.

HEADNOTE: The respondent filed an application for permission to sue in forma  pauperis  against the appellant, and  notice  of  the petition was-given to the state Government and the appellant under  O.33,  r. 6, CPC.  The Government and  the  appellant filed objections, that the respondent was not a pauper.  The appellant  also filed an application for discovery of  docu- ments  from the respondent for proving that  the  respondent was  not a pauper.  The Court passed an order directing  the respondent  to discover on affidavit the documents  relating to  bank accounts of the respondent for a specified  period. The respondent did not- file the affidavit on the prescribed date but filed applications for time which were dismissed by the Court and the Court thereafter dismissed the application for  permission  to sue in form pauper is as  there  was  no evidence  to  show  that the respondent  was  a  pauper  and directed   the  respondent  to  pay  the  court-fees.    The respondent  challenged  the orders  directing  discovery  of documents  and dismissing the application for permission  to sue  in forma pauperis in revision before the  High  Court., The  High Court set aside the two orders holding  that;  (1) Since  the proceedings under O.33, rr. 6 and 7 are  summary, discovery  should not have been ordered : (2) the  documents of  which  discovery was sought were not  specified  in  the application  of the appellant, (3) the inquiry  under  O.33, rr.  6  and 7 was a matter between the  respondent  and  the State  Government  and  discovery  and  inspection  at   the instance  of a private party like the appellant  should  not have  been ordered;(4) the trial court acted  with  material irregularity  as  it did not consider  the  question  of-the necessity for discovery of the documents or the relevance of the  documents of which discovery was sought; (5) the  trial

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court overlooked the right of the respondents to claim  pri- vilege; and (6) the trial court, rejected the application to sue in forma pauperis for statistical purposes. Allowing the appeal to this Court, HELD : (1) The suit commences from the moment an application for permission  to  sue in forma paupers as  required  by  O..33 C.P.C. is presented and the provisions of Order 1, r. 10, of O.9 and O.39 would apply to it.  If that be so, there is  no reason  why  the  provisions  of  O.11  r.  12  relating  to discovery  should not also apply to proceedings under  O.33. [701B-C] Vijay Pratap Singh v. Dukh Haran Nath Singh and Anr., [1962] S.C.R. Supp., 2, 675. followed. (2)  When the’ Court makes order for discovery the  opposite party  is bound to make an affidavit of documents and if  he fails to do so he will be subject to the penalties specified in  O.11, r. 21.  An affidavit of documents shall set  forth all  the documents which are or have been in his  possession or  power  relating  to  the  matter  in  question  in   the proceedings.  As to documents which are not but have been in his  possession  or power he must state what has  become  of them in order that the other Party may -Ll529upCI/73 698 be  able  to get their production.   Therefore,  unless  the party  discovery  knows  what  are  the  documents  in   the possession  of custody of the other party which would  throw light. upon the matter in controversy it is not possible for him  to  ask  for  discovery  and  inspection  of   specific documents., In the circumstances therefore the order was  as specific as it could be., [702C-F] (3)  Order  33,  r. 6 provides that it the  Court  does  not reject  the application under r. 5 notice shall be given  to the opposite party and the Government pleader for  receiving such  evidence  as  the applicant may, adduce  in  proof  of pauperism and for hearing any evidence in disproof  thereof. Also  under  O.,33,  r. 9 it is open to  the  Court  on  the application  of the defendant to disappear the plaintiff  on the  grounds  specified therein one of which  is,  that  his means are such that he should not be allowed to continue  to sue  as a pauper.  Since an immunity from litigation  unless the  requisite  court  fee is paid by the  plaintiff,  is  a valuable   right  for  the’  defendant,  the  inquiry   into pauperism is not a matter exclusively between the Government and the plaintiff. [703C-G] (4)  The  High  Court  was not right  in  holding  that  the documents were not relevant for the inquiry.  The  documents sought  to be discovered need not be admissible in  evidence in  the  inquiry or proceedings.  It is sufficient  if  they would  be relevant for the purpose of throwing light on  the matter in controversy.  A document might. be inadmissible in evidence  and yet may contain information which  may  either directly  or indirectly enable the party  seeking  discovery either to advance his case or damage the adversary’s case or which  may lead to a trail of inquiry which may have  either of  these two consequences.  Since documents of  which  dis- covery  was  sought would throw light on the  means  of  the respondent  to pay the court fee they are  relevant.  [702H; 703A-C] (5)  The   High  Court  was  wrong  in  holding   that   the plaintiff’s  right  to claim privilege was affected  by  the order, because, the stage for claiming privilege had not yet been reached., That would be reached only when the affidavit of discovery is made, and the plaintiff objects under  O.11,

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r.  13,  to  produce for inspection by  the  Opposite  party specific documents. [702E-G] (6)  (a)   A  distinction  must  be  drawn  between   errors committed by subordinate courts in deciding questions of law which have relation to, or are concerned with, questions  of jurisdiction  of the Court and errors of law which  have  no such  relation  or connection, for the purposes of  s.  115, C.P.C. If there was an entitlement to enter upon an  inquiry into  a question then any subsequent error committed by  the Court  could  not be regarded as an error  of  jurisdiction, because the question of jurisdiction is determinable at  the commencement  and  not  at the conclusion  of  the  inquiry. [705A-B, G-H; 706A] Manidra  Land  and  Building Corporation  Ltd.  v.  Bhutnath Banerjee  &  Ors,  A.I.R. 1964  S.C.R  1336  Vora  Abbashhai Alimahommed  v. Haji Gulamnabi Haji Safibhai,  A.I.R.  1964, S.C. 1341 and Pandurangh Dhoni Chougule v.   Maruti     Hari Jadhav, [1966] 1 S.C.R. 102, followed. Rajah  Amir Hassan Khan v. Sheo Baksh Singh, [1884] L.R.  II I.A.  237,  Balakrishana Udayar v.  Vasudeva  Aiyar,  [1917] L.R.44  I.R.  261, Venkatagiri Ayyangar v.  Hindu  Religious Endowments   Board,  Madras,  (.194849)  L.R.76   I.A.   67, Anisminic Ltd., v. Foriegn Composition, Commission [1969]  2 A.C.  147 and R. v., Botton, [184,41],, I Q.B.  66  referred to. 699 (b) But   the  effect of the observations in  the  Anisminic case  is to reduce the difference between  a  jurisdictional error and an error, of law within jurisdiction, almost to  a vanishing  point.  The practical effect of the  decision  is that any error of law can be reckoned as jurisdictional.[706 H] In the present case even if lack of jurisdiction is  assumed to result from every material error of law--even an error of law  within  the jurisdiction  as  generally  understood-the order  of  the  trial court (was not vitiated  by  any  such error.  of  law  and the High court  was  not  justified  in interfering  with  it  in revision.   The  trial  court  had jurisdiction to pass the order for discovery.  The rejection of the application for time and the consequent dismissal  of the petition for permission to sue in forma pauperis  cannot be  said  to  sound  in jurisdictional  error  even  in  its extended  sense. The refusal to adjourn had  not  occasioned any  failure of natural justice, nor is there any  thing  to show  that in rejecting the application for time  the  trial court  acted illegally or with material irregularity in  the exercise of its jurisdiction. [707D-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  665(N)  of 1972. Appeal  by special leave from the judgment and  order  dated August 27, 1971 of the High Court of Judicature at Allahabad in Civil Revision No. 680 of 1970. V. M. Tarkunde and Hardev Singh, for the appellant. Respondent appeared in person. The Judgment of the Court was delivered by Mathew, J. This appeal, by special leave, is from the  order of  the High Court of Allahabad allowing on application  for revision  of orders passed by the Civil  Judge,  Saharanpur, directing  discovery  of  documents by  the  respondent  and dismissing an application by him for permission to sue forma pauperis.

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The  respondent filed a suit in forma pauperis on April  29, 1962,  against  the appellant and his wife for  recovery  of damages  to  the  tune  of  Rs.  7,48,000/-  for   malicious prosecution.   Notice  of  the petition.  to  sue  in  forma pauperis was given to the State Government and the appellant under  Order 33, Rule 6 of the Civil Procedure  Code.   Both the  Government and the appellant filed  objections  stating that  the  respondent  is  not  a  pauper.   The   appellant thereafter  filed an application for discovery of  documents from  the respondent for proving that the respondent is  not a. pauper.  The Court passed an order on February 23,  1970, directing  the  respondent  to  discover  on  affidavit  the documents  relating to the bank accounts of the  respondent, namely,  pass books cheque books, counterfoils,  etc.,  from March  1,  1963,  to the date of  filing  the  affidavit  of discovery,   as  also  the  documents  in  respect  of   the properties held by him and the personal accounts  maintained by him.  The respondent was to file the affidavit of 700 discovery on March 8, 1970.  It was specifically stated that no  extension  of  time  will  be  allowed  for  filing  the affidavit  and that the discovery should be made within  the time.   The  respondent  did  not  file  the  affidavit   in pursuance  to  the order.  On March 31, 1970,  he  moved  an application  stating.  that  he, wants to  file  a  revision against  the order dated February 23, 1970, before the  High Court  and  that  two months’ time may be  allowed  for  the purpose.   The  Court rejected the application for  time  on April  4,  1970,  on the ground  that  the  application  for permission   to  sue in forma pauperis was pending  for  the last seven years and that the respondent had ample time  for filing  the revision if he was diligent in the matter.   The respondent’s  counsel then moved another application on  the same  day  stating  that  the  respondent  wants  to  adduce evidence  and  that since he had not come to  Court  in  the expectation  that  his earlier application dated  March  31, 1970,  for  adjournment would be allowed, the  case  may  be adjourned.  This application was also rejected by the Court. And  as counsel for the respondent reported  no  instruction and as there was no evidence to show that the respondent was a pauper, the Court dismissed the application for permission to sue in forma Pauperis and directed the respondent to  pay the court fee within 15 days. The  respondent challenged the order directing discovery  of documents  passed on February 23, 1970, and that  dismissing his  application  for permission to sue  in  forma  pauperis passed on April 4, 1970, in revision before the High Court. The High Court hold that since the proceedings under rules 6 and   7   of  Order  33  are  summary  in   character,   the "sophisticated procedure" for discovery should not have been resorted  to by the appellant, that the documents  of  which discovery  was sought were not specified in the  application of  the  appellant  and,  therefore,  the  application   for discovery  was bad, that the enquiry under rules 6 and 7  of Order  33 was primarily a matter between respondent and  the State  Government and that the trial court should  not  have adopted  the procedure for discovery and inspection  at  the instance  of a private party like the appellant.  The  Court further held that the trial Court acted with material  irre- gularity  as  it  did  not  consider  the  question  of  the necessity for discovery of the documents or the relevancy of the documents of which discovery was sought and also for the reason that, in ordering discovery of the documents relating to  personal  accounts, and pass books,  it  overlooked  the right of the respondent to claim privilege.  And as  regards

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the   order  passed  on  April  4,  1970,   dismissing   the application  for permission to sue in forma  pauperis  after rejecting  the application for adjournment, the  Court  said that the trial Court betrayed an anxiety to get rid of 701 an  application to add to the figures of its disposal.   The Court, therefore, set aside the order for discovery as  well as  the order dismissing the application for  permission  to sue in forma pauperis. The respondent submitted that the procedure for discovery of documents  is not permissible in proceedings under Order  33 and  that it is not salutary to adopt the procedure even  if permissible.  In Vijay Pratap Singh v. Dukh Haran Nath Singh and another(1), this Court has held that "the suit commences from  the  moment an application for permission  to  sue  in forma  pauperis  as required by Order 33 is  presented."  If that  be so, the provisions of rule 12 of Order 11  relating to discovery would in terms apply to proceedings under Order 33.  There is also no reason why, if the provisions of Order 1,  rule  10 relating to additions of parties,  of  Order  9 dealing  with appearance of parties and consequence of  non- appearance,   and   of  Order  39  relating   to   temporary injunctions would apply to proceeding under Order 33, the provisions in Order 11 dealing with dis- covery  of documents should not apply to, such  proceedings. In England, discovery is ordered in any ’pause’ or  ’matter’ in the Supreme Court to which the rules of the Supreme Court apply.   And  ’cause’  includes any action,  suit  or  other original  proceeding  between  a  plaintiff  and  defendant. Generally  speaking,  discovery  is  granted  there  in  all proceedings  except purely criminal proceedings,  and  civil proceedings where the action is brought merely to  establish a forfeiture or enforce a penalty(1).  There is no reason to hold,  if costs could be saved, that it is not  salutary  to resort to the procedure in proceedings under Order 33. We think that the High Court was wrong in holding that since the application for discovery did not specify the  documents sought to be discovered, the lower Court acted illegally  in the  exercise  of its jurisdiction  in  ordering  discovery. Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other  party’s  evidence of his case or title.  If  a  party wants  inspection  of  documents in the  possession  of  the opposite  party,  he cannot inspect them  unless  the  other party  produces  them.  The party wanting  inspection  must, therefore,  call  upon  the opposite party  to  produce  the document.  And how can a party do this unless he knows  what documents  are  in the possession or power of  the  opposite party  ? In other words, unless the party seeking  discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in  controversy, how is it possible for him to ask for  dis- covery of specific documents ? Order 1 1, rule 12 provides : (1) [1962] S.C.R. Supp. 2,675. (2) Halsbury’s Laws of England, ’Vol. 12, P. 2. 702 "12.  Any party may, without filing any affidavit, apply  to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been  in his possession or power, relating to any matter  in question  therein.  On the hearing of such  application  the Court  may either refuse or adjourn the same,  if  satisfied that  such  discovery is not necessary or not  necessary  at that stage of the suit, or make such order, either generally or  limited to certain classes of documents, as may, in  its

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discretion,  be thought fit: Provided that  discovery  shall not  be  ordered when and so far as the Court  shall  be  of opinion that it is not necessary either for disposing fairly of the suit or for saving costs". When the Court makes an order for discovery under the  rule, the  opposite  party  is  bound  to  make  an  affidavit  of documents  and if he fails to do so, he will be  subject  to the  penalties  specified  in  rule 21  of  Order  1  1.  An affidavit  of  documents shall set forth all  the  documents which are, or have been in his possession or power  relating to the matter in question in the proceedings.  And as to the documents which are not, but have been in his possession  or power,  he must state what has become of them and  in  whose possession they are, in order that the opposite party may be enabled to get production from the persons who have  posses- sion of them (see form No. 5 in Appendix C of the Civil Pro- cedure  Code).  After he has disclosed the documents by  the affidavit, he may be required to produce for inspection such of  the  documents  as he is in possession  of  and  as  are relevant. The High Court was equally wrong in thinking lb-at in  pass- ing the order for discovery, the trial Court acted illegally in  the  exercise  of its jurisdiction as  it  deprived  the respondent  of  his  right  to  claim  privilege  for   non- production  of his pass book and personal accounts,  because the stage for claiming privilege had not  yet been reached.  That would be reached only when  the affidavit of discovery is made.  Order 11, rule 13  provides that every  affidavit  of documents should specify which  of  the documents therein set forth the party objects to produce for inspection  of the opposite party together with the  grounds of objection.. Nor  do  we think that the High Court was right  in  holding that  the  documents  ordered  to  be  discovered  were  not relevant  to  the  injuiry.   The  documents  sought  to  be discovered need not be admissible in evidence in the enquiry or proceedings.  It is sufficient it the documents would  be relevant for the purpose of throwing light on the matter  in controversy.   Every document which will throw any light  on the case is a document relating to 703 a matter in dispute in the proceedings, though it might  not be admissible in evidence.  In other words, a document might be  inadmissible in evidence yet it may contain  information which  may  either directly or indirectly enable  the  party seeking  discovery either to advance his case or damage  the adversary’s  case  or which may lead to a trail  of  enquiry which  m  have either of these two consequences.   The  word ’document’  may  this  context  includes  anything  that  is written or printed, no matter what the material may be  upon which the writing or printing is inserted or imprinted.   We think that the documents of which the discovery was  sought, would  throw  light on the means of the  respondent  to  pay court fee and hence relevant. We venture to think that the High Court was laboring under a mistake  when  it said that the enquiry  into  the  question whether the respondent was a pauper was exclusively a matter between him and the State Government and that the  appellant was  not interested in establishing that the respondent  was not  a pauper.  Order 33, rule 6 provides that if the  Court does  not  reject the application under rule  5,  the  Court shall  fix a day of which at least 10 days’ notice shall  be given  to the opposite party and the Government pleader  for receiving such evidence as the applicant may adduce in proof

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of  pauperism  and  for hearing  any  evidence  in  disproof thereof.  Under Order 33, rule 9, it is open to the Court on the  application of the defendant to dispauper  the  plain-. tiff  on the grounds, specified therein, one of  them  being that his means are such that he ought not to continue to sue as  a  pauper.  An immunity from a  litigation  unless.  the requisite  court fee is paid by the plaintiff is a  valuable right  for  the  defendant.  And does it  not  follow  as  a corollary  that  the  proceedings  to  establish  that   the applicant-plaintiff  is a pauper, which win take  away  that immunity, is a proceeding in which the defendant is  vitally interested  ? To what purpose does Order 33, Rule  6  confer the  right  on  the opposite party  to  participate  in  the enquiry into the pauperism and adduce evidence to  establish that  the  applicant is’ not a pauper  unless  the  opposite party  is interested in the question and entitled  to  avail himself of all the normal procedure to establish it ? We can think  of  no reason why if the procedure for  discovery  is applicable  to  proceeding  under Order  33,  the  appellant should not be entitled to avail himself of it. We  also  do  not  think that there  is  any  point  in  the criticism of the High Court that the order for discovery was vague.   The first item in the order was in respect  of  the documents  relating to the bank accounts of  the  respondent from  March  1,  1963, to the date of  the  affidavit.   The second item related to documents in respect of the immovable properties held by him during the same 704 period  and  the  third item was  in  respect  of  documents relating to  the  personal accounts maintained by him  for  the  same period. The order was as specific as it could be. Counsel  for the appellant contended that even if the  order for  discovery of documents was bad in law, the  High  Court was  not justified in interfering with it.  And  as  regards the  order dated April 4, 1970, dismissing  the  application for permission to sue in forma pauperis after rejecting  the application  for  time, be said, the High Court  was  really interfering  with the discretion of the trial Court  in  the matter  of adjournment, The jurisdiction of the  High  Court under  section 115 of the C.P.C. is a limited one.  As  long ago  as  1884,  in  Rajah Amir Hassan  Khan  v.  Sheo  Baksh Singh(1),  the Privy Council made the following  observation on s.     622  of the former Code of Civil Procedure,  which was replaced by     s. 115 of the Code of 1908               "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  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."               In  Balakrishna Udayar v.  Vasudeva  Aiyar(2),               the Board observed :               "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."

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In N. S. Venkatagiri Ayyangar v. Hindu Religious  Endowments Board,  Madras(1), the Judicial Committee said that  section 115  empowers  the  High Court to satisfy  itself  on  three matters,  (a)  that the order of the  subordinate  court  is within  its jurisdiction; (b) that the case is one in  which the  Court ought to exercise jurisdiction; and (c)  that  in exercising  jurisdiction the Court has not acted  illegally, that  is,  in  breach  of some provision  of  law,  or  with material irregularity, that is, by committing some error  of procedure  in the course of the trial which is  material  in that it may have affected he ultimate decision.  And if  the High  Court is satisfied on those three matters, it. has  no power  to interfere because it differs from the  conclusions of the subordinate court on questions of fact or law. (1)[1884] L. R. 11 1. A. 237. (2) [1917] L. R. 44 1. A. 261, 267. (3) [1948-49] L. R. 76, 1. A. 67. 705 This  Court in Manindra Land and Building  Corporation  Ltd. v.   Bhutnath Banerjee and others(1) and Vora Abbashhai Ali- (2   mahomed v. Haji Gulamnabi Haji Safibhai ) has held that a    distinction must be drawn between the errors  committed by  sub-ordinate courts in deciding questions of  law  which have relation  to,  or  are  concerned  with,  questions  of jurisdiction of the said      Court, and errors of law which have  no  such relation or connection.  In  Pandurang  Dhoni Chougute v. Maruti Hari Jadhav(3), this Court said :               "The  provisions of s. 115 of the  ’Code  have               been  examined   by  judicial   decisions   on               several   occasions.   While    ex               ercising its jurisdiction under S. 115, it  is               not   competent  to the High Court to  correct               errors of fact  however gross they may be,  or               even errors of law, unless     the said errors               have relation to the jurisdiction of the     Court               to try the dispute itself. As clauses (a), (b)               and   (c)  of s.  15 indicate, it is  only  in               cases where the      subordinate   Court   has               exercised a jurisdiction not        vested  in               it  by  law,  or has  failed,  to  exercise  a               jurisdiction  so vested, or has acted  in  the               exercise of its jurisdiction illegally or with               material irregularity that the      revisional               jurisdiction of the High Court can be properly               invoked. It is conceivable that points of  law               may   arise  in proceedings instituted  before               subordinate courts   which   are  related   to               questions of jurisdiction. It is well    settled               that  a  plea  of  limitation  or  a  plea  of               rasjudica is    a  plea of law which  concerns               the jurisdiction of the   Court  which   tries               the proceedings. A finding on these      pleas               in favour of the party raising them would oust               the   jurisdiction  of  the court and  so,  an               erroneous decision   on  these  pleas  can  be               said   to  be  concerned  with  questions   of               jurisdiction which fall within the purview of    s.               115 of the Code. But an erroneous decision  on               a     question   of   law   reached   by   the               subordinate court which   has  no relation  to               questions of jurisdiction of that court  cannot               be corrected by the High Court under s. 115." The  "jurisdiction"  is  a  verbal  coat  of  many   colours Jurisdiction originally seems to have had the meaning  which Lord  Reid  ascribed  to it in  Anisminic  Ltd.  v.  Foreign Compensation  Commission   (4 )  , namely,  the  entitlement

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"to enter upon the  enquiry  in question". If there  was  an entitlement to enter upon     an enquiry into the  question, ben any subsequent error could only     be  regarded  as  an error within the jurisdiction. The best known     formulation of this theory is that made by Lord Denean in R. v. (1)  A.I.R. 1964 S.C. 1336. (2)  A.I.R. 1964 S.C. 1341. (3)  [1956] 1 S.C.R. 102. (4)  [1969] 2 A.C. 147. 706 Bolton(1).   He  said that the question of  jurisdiction  is determinable  at the commencement, not at the conclusion  of the enquiry. In Anisminic Ltd. (2) , Lord Reid said:               "But there are many cases where, although  the               tribunal  had  jurisdiction to  enter  on  the               enquiry it has done or failed to do  something               in the course of the enquiry which is of  such               a  nature that its decision is a nullity.   It               may have given its decision in bad faith.   It               may have made a decision which it had no power               to make.  It may have failed in the course  of               the enquiry to comply with the requirements of               natural justice.  It may in perfect good faith               have  misconstrued  the provisions  giving  it               power  to act so that it failed to  deal  with               the  question remitted to it and decided  some               question which was not remitted to it.  It may               have  refused to take into  account  something               which  it was required to take  into  account.               Or  it  may have based its  decision  on  some               matter which, under the provisions setting  it               up,  it had no right to take into account.   I               do not intend this list to be exhaustive."               In the same case, Lord Pearce said               "Lack  of  jurisdiction may arise  in  various               ways.   There  may  be  an  absence  of  those               formalities  or. things which  are  conditions               precedent   to   the   tribunal   having   any               jurisdiction to embark on an,enquiry.  Or  the               tribunal may at the end make an order that  it               has  no  jurisdiction  to make.   Or,  in  the               intervening  stage while engaged on  a  proper               enquiry,  the  tribunal may  depart  from  the               rules of natural justice; or it may ask itself               the  wrong  questions;  or it  may  take  into               account  matters which it was not directed  to               take   into  account.Thereby  it  would   step               outside  its jurisdiction.  It would turn  its               inquiry   into  something  not   directed   by               Parliament and fail to make the inquiry  which               the  Parliament  did  direct.   Any  of  these               things  would cause its purported decision  to               be a nullity." The dicta of the majority of the House of Lords in the above case  would show the extent to which ‘lack’ and ’excess’  of jurisdiction  have been assimilated or, in other words,  the extent  to  which we have moved away  from  the  traditional concept of "jurisdiction".  The effect of the dicta in  that case  is  to reduce the difference  ’between  jurisdictional error  and  error  of  law  within  jurisdiction  almost  to vanishing  point.  The practical effect of the  decision  is that  any  error of law can be reckoned  as  jurisdictional. This (1) [1841] 1 Q.  B. 66. (2) [1969] 2A.  C. 147.

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707 comes perilously close to saying that there is  jurisdiction it  the  decision is right in law but none if it  is  wrong. Almost  any misconstruction of a statute can be  represented as  "basing their decision on a matter with which they  have no  right to deal", "imposing an unwarranted  condition"  or "addressing  themselves to a wrong question".  The  majority opinion  in  the,  case  leaves a  Court  or  Tribunal  with virtually no margin of legal error.  Whether there is excess of  jurisdiction or merely error within jurisdiction can  be determined only by construing the empowering statute,  which will, give little guidance.  It is really a question of  how much latitude the Court is prepared to allow. in the end  it can   only   be   a  value  judgment   (see   H.W.R.   Wade, "Constitutional and Administrative Aspects of the  Anismanic case", Law Quarterly Review, Vol. 85, 1969, p. 198).  Why is it that a wrong decision on a question of limitation or  res judicata  ’was treated as a jurisdictional error and  liable to be interfered with in revision ? It is a it difficult  to understand  how  an  erroneous decision  on  a  question  of limitation  or res judicata would oust the  jurisdiction  of the Court in the primitive sense of the term and render  the decision or a decree embodying the decision a nullity liable to collateral attack.  The reason can only be that the error of  law was considered as vital by the Court.  And there  is no  yardstick to determine the magnitude of the error  other than the opinion of the Court. The  trial  Court  had jurisdiction to pass  the  order  for discovery.   Even  if lack of jurisdiction  is’  assumed  to result  from every material error of law--even an  error  of law  within the jurisdiction in the primitive sense  of  the term-we do not think the order was vitiated by any error  of law.   The  rejection of the application for  time  and  the consequent  dismissal of the petition for permission to  sue in  forma pauperis can hardly be said to sound in  jurisdic- tional  error  even  in  its  extended  sense,  as   already explained.   We are also not satisfied that the  refusal  to adjourn  occasioned any failure of natural justice so as  to render  the order a nullity.  Nor is there anything to  show that  in rejecting the application for time the Court  acted illegally  or with material irregularity in the exercise  of its jurisdiction. We  would, therefore, set aside the order of the High  Court and allow the appeal but in the circumstances make no  order as  to  costs.  This order will not in any  way  affect  the validity of the order passed by the High Court on August 26, 1971,  directing  the respondent to delete the name  of  the wife of the appellant from the array of parties. V.P.S.                               Appeal allowed. 708