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PETITIONER: MAJOR S. S. KHANNA

       Vs.

RESPONDENT: BRIG.  F.J. DILLON

DATE OF JUDGMENT: 14/08/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1964 AIR  497            1964 SCR  (4) 409  CITATOR INFO :  RF         1970 SC 406  (10)  F          1973 SC1096  (5)  RF         1988 SC 812  (16)

ACT: Civil  Procedure-Revisional  jurisdiction  of  High   Court- Meaning of "case" in s. 115 of the Code of Civil  Procedure- Separate  trial of issues of law and issues of fact-Code  of Civil Procedure, 1908 Act 5 of 1908), s. 115, 0.14, r. 2.

HEADNOTE: The appellant and the respondent entered into a  partnership to  do  business as Construction Engineers but  in  February 1956  they  agreed to dissolve it.  It was agreed  that  the respondent  was to take over all the assets and  liabilities of  the partnership and keep the appellant indemnified  from all liability.  Later on, a suit was filed by the  appellant for  dissolution of partnership and rendition  of  accounts. That  suit  ended in a compromise which  provided  that  all realisations of the old partnership would be converted  into cash  and  placed in joint account in the name  of  the  two partners  before being paid towards the liabilities  of  the partnership. The respondent filed two suits against the appellant for re- covery  of  certain  amounts  on  the  allegation  that  the appellant had taken that amount as loan.  The defence of the appellant was that as the money was still in the joint  name of  the  two partners and he had taken the  money  from  the joint  account,  suits  between the two  partners  were  not maintainable. In  trying preliminary issues raised in the suits the  trial Judge held that the suits were not maintainable, but instead of dismissing the suits there and then, he set them down for a  future  date.  Against the findings of the  trial  Judge, revision petitions were filed in the High Court under s. 115 of  the Code of Civil Procedure.  The High Court  set  aside the orders passed by the Trial judge and held that the suits could  not  be  held as  not  maintainable.   The  appellant appealed by special leave. The appellant challenged the order of the High Court on  the ground that the order of the trial Judge did not amount to

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27-2 S. C. India/64 410 "a case which has been decided" within the meaning of s. 115 of  Code of Civil Procedure, that the decrees which  may  be passed  in  the suits being subject to appeal  to  the  High Court, the power of the High Court was by the express  terms of  s. 115 excluded, and that the orders of the trial  Judge did  not fall within any of the three clauses (a),  (b)  and (c) of s. 115.  Rejecting the contentions of the appellant, Held  :The High Court was right in setting aside  the  order passed  by  the  trial Judge and  in  holding  that  without investigation  as  to  the respective  claims  made  by  the parties  by their pleadings on the matters in  dispute,  the suits  could not be held as not maintainable.  The  decision of  the trial Judge affected the rights and  obligations  of the  parties  directly.   It was the decision  on  an  issue relating  to the jurisdiction of the court to entertain  the suit  filed by the respondent.  The decision  attracted  cl. (c) of s. 115 of the Code of Civil Procedure. Per Sarkar and Shah, JJ. The expression "case" is a word  of comprehensive  import.  It includes civil proceedings  other than suits and is not restricted by anything contained in s. 115 to the entirety of the proceedings in a civil court.  To interpret the expression "case"as  an entire  proceeding only and not a part of the proceedingwould  be to  impose an unwarranted restriction on the exerciseof  powers   of superintendence  and may result in certain cases in  denying relief to the aggrieved litigant where it is most needed and may result in the ’perpetration of gross injustice. The  High Court is not obliged to exercise its  jurisdiction when  a  case  is decided by a  subordinate  court  and  the conditions in cls. (a), (b) or (c) of s. 115 are  satisfied. Exercise  of the jurisdiction is discretionary and the  High Court   is  not  bound  to  interfere  merely  because   the conditions  are satisfied.  The interlocutory  character  of the  order,  existence of another remedy  to  the  aggrieved party by way of appeal from the ultimate order or decree  in the proceeding or by a suit, and the general equities of the case  being served by the order made are all matters  to  be taken  into  account in considering whether the  High  Court even  in  cases  where  the  conditions  which  attract  the jurisdiction exist, should exercise its jurisdiction. Revisional  jurisdiction of the high Court may be  exercised irrespective of the question whether ;an appeal lies thereto from the ultimate decree or order passed in the suit or not. The  expression "in which no appeal lies thereto"  does  not mean  that  it  excludes  the  exercise  of  the  revisional jurisdiction  when  an appeal may be competent to  the  High Court  from the final order.The use of the word "in" is  not intended  to  distinguish orders passed in  proceedings  not subject  to appeal from the final adjudication,  from  those from  which no appeal lies.  If an appeal lies  against  the adjudication directly to the -High Court or to another court from the decision of which an appeal lies to the High Court, 411 it  has  no power to exercise  its  revisional  jurisdiction against  the adjudication, but where the decision itself  is not  appealable  to the High Court directly  or  indirectly, exercise  of the revisional jurisdiction by the  High  Court would not be deemed excluded. Under Or. 14, r. 2, where issues both of law and fact  arise in  the same suit and the court is of the opinion  that  the case ,or part thereof could be disposed of on the issues  of law  only,  it shall try those issues first,  and  for  that purpose,  may, if it thinks fit, postpone settlement of  the

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issues  of  fact  until after the issues of  law  have  been determined.   The  jurisdiction to try issues of  law  apart from  the issues of fact may be exercised only where in  the opinion  of the Court the whole suit may be disposed  of  on the  issues  of law alone, but the Code of  Civil  Procedure confers  no  jurisdiction upon the court to try  a  suit  on mixed  issues  of  law  and  fact  as  preliminary   issues. Normally,  all  issues in the suit should be  tried  by  the Court; not to do so ,especially when the decision on  issues even  of  law depends upon the decision of issues  of  fact, would result in a lop-sided trial of the suit. Per, Hidayatullah, J.-A decision of the subordinate Court is amenable  to the revisional jurisdiction of the  High  Court unless that jurisdiction is clearly barred by a special  law or  an appeal lies therefrom.  The expression "in  which  no appeal lies" does not speak’ of the Appeal "under the Code". The  expression  is  a  general one  and  applies  to  every decision  of a court subordinate to the High Court in  which no appeal lies, whether under the Code or otherwise. The decision of the trial Judge was erroneous because he de- nied himself the jurisdiction of holding that the suits were not  maintainable.   The fact that he did  not  dismiss  the suits  and  did not draw up decrees for  that  purpose,  was itself   an   exercise   of   jurisdiction   with   material irregularity,  if  not also illegality.  In so  far  as  the parties were concerned, the suits were no longer live  suits as the decision had put an end to them. The word "case" in s. 115 does not mean a concluded suit  or proceeding but each decision which terminates a part of  the controversy  involving a matter of jurisdiction.   Where  no question  of jurisdiction is involved, the court’s  decision cannot  be  impugned  under s. 115  because  the  court  has jurisdiction to decide wrongly as well as rightly. Balakrishna  Udayar  v. Vasudeva Aiyar, L.R.  44  I.A.  261, Ryots of Garabandho v. Zamindar of Parlakimedi, L.R. 70 I.A. 129; Budhulal v. Mewa Ram, I.L.R. 43, All. 564 (F.B.); Puro- hit   Swarupnaraian   v.  Gopinath,   I.L.R.   (1933)   Raj. 483(Fl.B.),  Pyarchand v. Dungar Singh, I.L.R.  (1953)  Raj. 608  and  Rex v. Nat Bell Liquors Ltd., [1922] 2  A.C.  128, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 320 of 1963. 412 Appeal  by special leave from the judgment and  order  dated October 26, 1962, of the Punjab High Court at Delhi in Civil Revision Nos. 525 and 526-D of 1960. N.C.  Chatterjee, M.K. Ramamurthy, R.K. Garg,  S.C.  Agarwal and D.P. Singh, for the appellant (in both the appeals). A.V.  Viswanatha Sastri, Bakshi Shiv Charan Singh  and  S.N. Anand, for the respondent (in both the appeals).  August 14, 1963.   The judgment of A.K. Sarkar and J.C. Shah, JJ.,  was delivered  by  Shah,  J.  M.  Hidayatullah,  J.delivered   a separate Opinion. SHAH, J.-Brig. F.J. Dillon and Major S.S. Khanna hereinafter called   ’Dillon’  and  ’Khanna’  respectively  carried   on business  in  partnership as Construction  Engineers.   They agreed to dissolve the partnership with effect from February 15,  1956.   By the deed of dissolution it was  agreed  that Dillon was to take over all the assets and properties of the partnership  as absolute owner and to pay all the debts  and to  discharge all the liabilities of the partnership and  to keep  Khanna indemnified against all demands and  claims  in

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relation to the partnership business. But  the  deed did not terminate the  disputes  between  the partners,  and Khanna commenced an action against Dillon  in the  Court of the Subordinate judge, 1st Class,  Delhi  "for dissolution  of the partnership and rendition of  accounts". On  January  12, 1957, the parties arrived at  a  compromise (which  was  incorporated  into  a  decree  of  the   Court) confirming  the  earlier  dissolution  of  the  partnership, subject  to  a  scheme  of  winding  up,  under  which   all outstanding  realised from the debtors of the firm  and  the sale  proceeds of certain assets were to go into  a  banking account to be opened in the joint names of Dillon and Khanna and  were  to be applied in the first instance to  meet  the liabilities  of the dissolved firm, and the balance in  that joint account was to belong to Dillon.  Some outstanding  of the dissolved partnership were collected by Dillon and  were deposited in the joint account of Dillon and Khanna. Dillon filed a suit in the Court of the Subordinate judge at Delhi for a decree for Rs. 54,250.00 with future 413 interest  alleging that between the months of May  1957  and November 1957 he had, at the request of Khanna, advanced  in three  sums an aggregate amount of Rs. 46,000.00  as  short- term  loans which Khanna had promised to but had  failed  to repay.   Khanna  pleaded that he did not borrow  any  loans- from  Dillon,  and that the amounts claimed  in  the  action being  advanced,  even on the pled of Dillon. out  of  joint funds belonging to the two partners, action for recovery  of those amounts was, in law not maintainable. Out of the issues raised by the Trial Court in the suit  the third,issue viz: "Whether this suit is not maintainable and the plaintiff  is not  entitled  to institute this suit, as alleged  in  paras Nos.  15,  16, 17, 18 of the written statement  was  at  the request  of Khanna tried as a preliminary issue, and it  was held  that  the  suit being by  a  partner  against  another partner  of  a dissolved firm which was in  the  process  of winding up, and in respect of advances from the  partnership assets, was not maintainable. The  High  Court  of Punjab in exercise  of  its  revisional jurisdiction set aside the order, and directed that the suit be heard and disposed of according to law. With special leave this appeal is preferred by Khanna. The jurisdiction of the High Court to set aside the order in exercise  of the power under s. 115 Code of Civil  Procedure is challenged by Khanna on three grounds :-               (i)   that the order did not amount to "a case               which has been decided" within the meaning  of               s. 115 Code of Civil Procedure               (ii)that  the decree which may be passed  in               the  suit being subject to appeal to the  High               Court  the power of the High Court was by  the               express terms of s. 115 excluded ; and               (iii)  that the order did not fall within  any               of  the three clauses (a), (b) and (c)  of  s.               115.  The validity of the argument turns  upon               the  true  meaning  of s. 115  Code  of  Civil               Procedure, which provides :               "The High Court may call for the record of any               case  which  has  been decided  by  any  Court               subordinate to such High Court and in which no               appeal  lies thereto, and if such  subordinate               Court appears-               414               (a)   to  have  exercised a  jurisdiction  not

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             vested in it by law, or               (b)   to    have   failed   to   exercise    a               jurisdiction so vested, or               (c)   to  have  acted in the exercise  of  its               jurisdiction   illegally  or   with   material               irregularity,               the High Court may make such order in the case               as it thinks fit." The  section consists of two parts : the  first,  prescribes the  conditions  in  which jurisdiction of  the  High  Court arises  i.e. there is a case decided by a subordinate  Court in which no appeal lies to the High Court ; the second, sets out  the  circumstances  in which the  jurisdiction  may  be exercised.  But the power of the High Court is  "exercisable in  respect  of  "any case which  has  been  decided".   The expression  "case"  is not defined in the Code, nor  in  the General Clauses Act.  It is undoubtedly not restricted to  a litigation in the nature of a suit in a Civil Court :  Bala- krishna  Udayar  v.  Vasudeva  Aiyar(1)  ;  it  includes   a proceeding in a Civil Court in which the jurisdiction of the Court  is  invoked for the determination of  some  claim  or right legally enforceable.  On the question whether an order of  a  Court which does not finally dispose of the  suit  or proceeding amount to a "case which has been decided",  there has arisen a serious conflict of opinion in the High  Courts in India, and the question has not been directly  considered by this Court.  One view which is accepted by a majority  of the  High Courts is that the expression "case"  includes  an interlocutory   proceeding  relating  to  the   rights   and obligations  of the parties, and the expression  "record  of any  case" includes so much of the proceeding as relates  to the  order disposing of the interlocutory  proceeding.   The High  Court  has therefore power to rectify an  order  of  a Subordinate Court at any stage: of a suit or proceeding even if there be another remedy open to the party aggrieved  i.e. by  reserving  his  right  to file  an  appeal  against  the ultimate decision, and making the illegality in the order  a ground  of  that  appeal.   The  other  view  is  that   the expression  "case’ does not include an issue or a part of  a suit or proceeding and therefore the order on an issue or  a part of (1)  L.R. 44 I.A. 261. 415 a suit or proceeding is not a "case which has been decided", and  the  High  Court has no power in exercise  of  its  re- visional   jurisdiction,   to  correct  an   error   in   an interlocutory order. An  analysis of the cases decided by the High  Courts  their number  is legion-would serve no useful purpose.   In  every High  Court  from time to time opinion has  fluctuated.  The meaning  of  the  expression "case" must be  sought  in  the nature  of  the jurisdiction conferred by s.  115,  and  the purpose for which the High Courts were invested with it. By  their constitution the High Courts of  Calcutta,  Madras and  Bombay were within Presidency towns, as  successors  to the  respective Supreme Courts competent to issue  writs  of certiorari, mandamus and ’prohibition.  This was so  because the jurisdiction of the Courts of King’s Bench and  Chancery in England to issue those writs was conferred upon the three Supreme Courts.  But exercise of this jurisdiction which was established by Charters of the British Crown, was (except as to British subjects and servants of the Company) restricted. The   jurisdiction   did  not  ordinarily  extend   to   the territories   beyond  the  Presidency  towns  :   Ryots   of Garabandho  v.  Zamindar of Parlakimedi(1).   The  appellate

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Courts, called the Sudder Adalats, which exercised appellate powers over the East India Company’s Courts in the  mofussil of the three Presidencies were not the Courts of the King of England  : they were the creatures of Regulations,  and  did not  administer  the law of England.  These  Courts  had  no power to issue any of the prerogative writs-except  probably the writ of habeas corpus.  But the power to superintend the exercise  of jurisdiction by the mofussil Courts  was  found essential  to the proper functioning of the  Sudder  Courts, and  the Sudder Courts were accordingly invested by  express legislative  enactments with authority to rectify orders  of the mofussil Courts subordinate thereto.  Bombay  Regulation 11  of 1827 of Ch. 1 s. 5(2) authorised the Sudder Court  at Bombay to call for the proceedings of any subordinate  civil court  and  to issue such orders thereon as, the  case’  may require.   No  Regulation  was  however  enacted   elsewhere conferring revisional jurisdic (1) L.R. 70 I.A. 129. 416 tion  upon the Supreme Court or the Sudder Court in  respect of  adjudication  by subordinate courts.  The Code  of  1859 contained no provision for the exercise of revisional powers by the Sudder Courts, but by s. 35 of Act XXIII of 1861  the Sudder  Courts  were invested with the power  call  for  the record  of  any case decided in appeal  by  the  subordinate courts and in which no further appeal lay, when it appeared, that  a  subordinate  court had exercised  jurisdiction  not vested  in  it  by law.  With the set tin’ up  of  the  High Courts  in the Presidency ’towns of:, Calcutta,  Madras  and Bombay  power of superintendence was conferred by s.  15  by the  Charter  Act  (24 & 25 Vict.  Ch. 104)  upon  the  High Courts  over subordinate Courts.  By s. 622 of the  Code  of 1877 revisional jurisdiction of. the High Court was defined, and made exercisable in the conditions set out in cls. (a) & (b)  of  the present s. 115.  Clause (c) was  added  by  the Amending Act XII of 1879.  This jurisdiction was exercisable suo  motu as well as on application to the High  Court.   It was  conferred  in the widest terms.  The  jurisdiction  was supervisory  and  visitorial and was  complementary  to  the powers conferred by cl. 15 of the Charter Act, 1861, and the subsequent  Constitution  Acts,  and was  conceived  in  the interest  of  maintaining  effective  control  over   Courts subordinate  to the High Courts.  It had to be so  conferred because  in  the historical evolution of the powers  of  the diverse High Courts supervisory jurisdiction to issue  writs of certiorari, and prohibition could not be effectively made in respect of the mofussil Courts. The  necessity arising out of the peculiar circumstances  to invest  the  High Courts with the powers to  rectify  errors committed  by  subordinate Courts in the exercise  of  their jurisdiction  and  the consequent investiture of  power  are indicative of the extent of that power.  The power being one of  superintendence  and visitorial and vested  because  the supervisory  jurisdiction to issue writs of certiorari’  and prohibition  over subordinate Courts in the  mofussil  could not be exercised, it would be reasonable to hold that it was intended in the absence of any overriding reasons  disclosed by  the statute (and none such appears on an examination  of the statute) to be analogous- with the jurisdiction to issue the high prerogative writs and the 417 power of supervision under the Charter Act and its successor provisions in the Constitution Acts. The expression "case" is a word of comprehensive import : it includes  civil  proceedings other than suits,  and  is  not

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restricted  by  anything  contained in the  section  to  the entirety  of the proceeding in a civil court.  To  interpret the expression "case" as an entire proceeding only and’  not a part of a proceeding would be to impose a restriction upon the   exercise  of  powers  of  superintendence  which   the jurisdiction  to  issue  writs,  and  the  supervisory   ju- risdiction are not subject, and may result in certain  cases in denying relief to an aggrieved litigant where it is  most needed, and may result in perpetration of gross injustice. It may be observed that the majority view of the High  Court of  Allahabad in Buddhulal v. Mewa Ram(1) founded  upon  the supposition  that  even though the word "case"  has  a  wide signification the jurisdiction of the High Court can only be invoked  from an order in a suit, where the suit and  not  a part  of  it  is decided, proceeded upon  the  fallacy  that because  the expression "case" includes a suit, in  defining the limits of the jurisdiction conferred upon the High Court the  expression "suit" should be substituted in the  section when the order sought to be revised is an order passed in  a suit.   The  expression  "case"  includes  a  suit,  but  in ascertaining  the  limits of the jurisdiction  of  the  High Court, there would be no warrant for equating it with a suit alone. That  is  not  to  say that the High  Court  is  obliged  to exercise  its  jurisdiction  when a case  is  decided  by  a subordinate  Court and the ’conditions in cls. (a),  (b)  or (c) are satisfied.  Exercise of the jurisdiction is  discre- tionary  : the High Court is not bound to  interfere  merely because  the  conditions are satisfied.   The  interlocutory character  of the order, the existence of another remedy  to an  aggrieved  party by way of an appeal from  the  ultimate order  of  decree in the proceeding or by a  suit,  and  the general equities of the case being served by the order  made are  all  matters to be taken into  account  in  considering whether  the High Court, even in cases where the  conditions which attract the jurisdiction, exist, should excr- (1)  I.L.R. 43 All. 564 (F.B.) 418 cise its jurisdiction. The  Subordinate  Judge  in  the present  case  held  by  an interlocutory  order that the suit filed by Dillon  for  re- covery  of  the  amounts advanced to Khanna  was  not  main- tainable.   That was manifestly a decision having  a  direct bearing on the rights of Dillon to a decree for recovery  of the loan alleged to have been advanced by him, which he says Khanna  agreed  to  repay,  and  if  the  expression  "case" includes  a part of the case, the order of  the  Subordinate Judge must be regarded as a "case which has been decided". The  next question which falls to be determined  is  whether the  High Court has power to set- aside an order which  does not finally dispose of the suit, and when from the decree or from  the final order passed in the proceeding an appeal  is competent.   Relying  upon the ’Use of  the  expression  "in which  no  appeal  lies thereto" in s.  115  Code  of  Civil Procedure it was urged that the High Courts jurisdiction  to entertain a petition in revision could be exercised only  if no appeal lay from the final order passed in the proceeding. But once it is granted that the expression "case" includes a part of a case, there is no escape from the conclusion  that revisional  jurisdiction of the High Court may be  exercised irrespective  of the question whether appeal lies  from  the ultimate decree or order passed in the suit.  Any other view would impute to the Legislature an intention to restrict the exercise   of   this   salutary   jurisdiction   to    those comparatively unimportant suits and proceedings in which the

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appellate  jurisdiction of the High Courts is  excluded  for reasons  of public policy.  Nor is the expression "in  which no  appeal lies thereto" susceptible of  the  interpretation that it excludes the exercise of the revisional jurisdiction when  an appeal may be competent from the final order.   The use  of the word "in" is not intended to distinguish  orders passed  in proceedings not subject to appeal from the  final adjudication  from those from which no appeal lies.  If   an appeal  lies against the adjudication directly to  the  High Court,  or  to another Court from the decision of  which  an appeal  lies to the High Court, it has no Power to  exercise its revisional jurisdiction, but where’ the decision, itself it not appealable to the High Court directly or  indirectly, exer- 419 cise of the revisional jurisdiction by the High Court  would not be deemed excluded.  The judgment of the Rajasthan  High Court  in Purohit Swarupnain v. Gopinath and  another(1)  on which strong reliance was placed by the appellant does  not, in our judgment, correctly interpret s. 115 of the Code.  In that  case the Court relying upon an earlier judgment  of  a Division Bench Pyarchand and others v. Dungar Singh(2)  held that  "where  it  is open to a party to raise  a  ground  of appeal  under  s. 105 of the Code from the final  decree  or order,  with  respect  to any order which  has  been  passed during  the  pendency of a suit, it should be held  that  an appeal  in  that  case lies to the  High  Court  within  the meaning  of  the  term ’in which  no  appeal  lies  thereto’ appearing in s. 115 Civil Procedure Code", and the  exercise of  revisional jurisdiction of the High Court  is  excluded. ’It was observed in that case that the use of the word  "in’ instead of the word "from" in s. 115 Code of Civil Procedure indicated an intention that if the order in question was one which could come for consideration before the High Court  in any  form in an appeal that may reach the High Court in  the suit  or proceeding in which the order was passed, the  High Court  has no revisional jurisdiction.  But the argument  is wholly  inconclusive,  if it be granted that the word  cc  " includes a part of case.  Again on the footing case that the use  of  the expression "in" and not "from"  indicates  some discernible  legislative intent, it must be remembered  that the  word "in" has several meanings a preposition and as  an adverb.  The use of the preposition "from"-in the sense of a source or point of commencement or distinction-would not  in the context of the clause, yield to greater clarity, because the relation established thereby would be between "case" and appeal,  and  not "decided" and appeal.  If the use  of  the expression  "in"  is inappropriate to  express  the  meaning that’  the  orders  not appealable to the  High  Court  were subject to the revisional jurisdiction, the substitution  of "from" for "in" does not conduce to greater, lucidity. In considering whether the revisional jurisdiction of (1)  I.L.R. [1953] Raj. 483 F.B. (2)  I.L.R. [1953] Raj. 608. 420 the  High Court was intended to cover decisions,  which  did not dispose of the suit or proceeding, possibility of  delay arising  in  the  disposal  of some  cases  because  of  in- vestigation  commenced  by  the High Court is  not,  in  our judgment,  a  sound ground for presuming, that,  the  juris- diction  was  to  be limited to  those  matters  which  were finally disposed of. For  the  effective  exercise  of  its  superintending   and visitorial  powers,  revisional jurisdiction  is  conferred; upon  the High Court and it would be putting an  unwarranted

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restriction  upon  the  jurisdiction of the  High  Court  to restrict it to those cases only where no appeal would  reach the  High  Court  from the final order passed  in  the  pro- ceeding.   We  are therefore unable to agree with  the  view which prevailed with the Rajasthan High Court that there  is a restriction placed upon the power of the High Court in the exercise  of the revisional jurisdiction as would limit  the exercise  of  that power only to cases where  no  appeal  is competent  from  the  final  order passed  in  the  suit  or proceeding. The  third  question may now be dealt with.   By  the  order passed by the Court of First Instance on the third issue  it was held that the suit filed by Dillon was not maintainable. That  decision,  in our judgment, affected  the  rights  and obligations  of the parties directly.  It was a decision  on an  issue  relating  to the jurisdiction  of  the  Court  to entertain  the  suit  filed by Dillon.   In  any  event  the decision  of the Court clearly attracted cl. (c) of  s.  115 Code of Civil Procedure, for the Court in deciding that "the suit  was not maintainable as alleged in paragraphs 15,  16, 17 and 18 of the written statement" purported to decide what in  substance  was an issue of fact without a trial  of  the suit on evidence.  Dillon alleged in his plaint that at  the request  of Khanna, he had advanced diverse loans (from  the funds  lying in deposit in the joint account) and  that  the latter  had agreed to repay the loans.  The cause of  action for   the   suit  was  therefore  the   loan   advanced   in consideration of a promise to repay the amount of the  loan, and  failure  to repay the loan.  By his  written  statement Khanna  had  pleaded  in paragraph 15 that  Dillon  had  not advanced  any money to him and that Dillon had  not  claimed the amount for himself and there- 421 fore he was not entitled to file a suit for recovery of  the amounts.   By  paragraph 16 he pleaded  that  Dillon  having admitted  in the plaint that the amounts in suit were to  be paid  back to the joint account he was not entitled to  file the suit.  By paragraph 17 it was pleaded that a suit by one joint  owner against the other joint owner for  recovery  of the  Joint  Fund  or  any item of the  joint  fund  was  not maintainable  and  by paragraph 18 he  pleaded  that  Dillon could  not institute a suit against him because  the  amount was not repayable.  All these contentions raised substantial issues  of  fact which had to be decided  on  evidence,  and Dillon  could not be non-suited on the assumption  that  the pleas  raised were correct.  At the threshold of  the  trial two problems had to be faced :               (1)   Whether   in  a  suit  to   enforce   an               agreement  to  repay  an  amount  advanced  in               consideration of a promise to repay the  same,               the  question as to the ownership of the  fund               out  of  which  the  amount  was  advanced  is               material ; and               (2)   if  the  answer is in  the  affirmative,               whether  the fund in fact belonged jointly  to               Dillon and Khanna. The  Judge  of  the Court of  First  Instance  unfortunately assumed without a trial an affirmative answer to both  these questions.  Under 0. 14 r. 2, Code of Civil Procedure, where issues  both of law and of fact arise in the same suit,  and the  Court is of opinion that the case or any  part  thereof may  be disposed of on the issues of law only, it shall  try those  issues first, and for that purpose may, if it  thinks fit,  postpone  the settlement of the issues of  fact  until after   the  issues  of  law  have  been  determined.    The

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jurisdiction  to try issues of law apart from the issues  of fact may be exercised only where in the opinion of the Court the  whole  suit  may be disposed of on the  issues  of  law alone,  but the Code confers no jurisdiction upon the  Court to try a suit on mixed issues of law and fact as preliminary issues.   Normally all the issues in a suit should be  tried by the Court ; not to do so, especially when the decision on issues  even  of law depend upon the decision of  issues  of fact, would result in a lop-sided trial of the suit. 422 We  are  at  this stage not expressing any  opinion  on  the question  whether the allegations made by Dillon and  Khanna are true ; we are only concerned to point out that what  was regarded  as  an issue of law as to maintainability  of  the suit  could  only be determined after several  questions  of fact  in  dispute between the parties were  determined.   In proceeding to decide the third issue merely on the pleadings and  on  the  assumption that the allegations  made  by  the defendant in his written statement were true and those  made by the plaintiff were not true, and on that footing treating the-  joint  account as of the common ownership of  the  two partners, the trial Judge acted illegally and with  material irregularity in the exercise of his jurisdiction. The  High  Court was therefore right in  setting  aside  the order passed by the Trial Court and in holding that  without investigation  as  to  the respective  claims  made  by  the parties  by  their pleadings on the matters in  dispute  the suit could not be held not maintainable. The  appeal  therefore fails and is  dismissed  with  costs. There will be one hearing fee for this appeal and also  C.A. 321 of 1963. HIDAYATULLAH  J.-I  have had the advantage of  pursuing  the judgment  of  my learned brother Shah, J. I agree  with  him that  these  appeals should be dismissed with costs,  but  I propose to give my reasons in brief in a separate  judgment. The  facts have been stated in detail by my learned  brother and I need not repeat them.  For the purpose of my  judgment I shall mention only the essential facts. Khanna  (the appellant) and Dillon (the respondent)  entered into a partnership to do business but in February 1956, they agreed  to  dissolve  it.  A deed was drawn up  and  it  was agreed  that  Dillon  was to take over all  the  assets  and liabilities  of the partnership keeping  Khanna  indemnified from  all liability.  Later, a suit -was filed for the  dis- solution of the partnership and rendition of accounts but it ended in a compromise.  The compromise nearly reaffirmed the terms of the earlier deed, but included a condition that all realizations of the old partnership would be converted  into cash  and placed in a joint account in the name of  the  two partners before being paid towards 423 liabilities of the partnership. These  appeals  arise out of two suits which were  filed  by Dillon  against  Khanna  for  recovery  of  certain  amounts aggregating  to  Rs.  46,000/- and  interest  which  amounts Khanna  allegedly obtained as loan from the  joint  account. Khanna  countered the suits by contending that as the  money was still in the joint names of the two partners, the  suits between partners were not maintainable.  This plea led to an issue in each suit which substantially read as follows : "Whether  the suit is not maintainable and the plaintiff  is not entitled to institute as alleged in paragraphs Nos.  15, 16, 17 and 18 of the written statement." These  issues were tried as preliminary and the decision  of the  trial judge was in favour of Khanna in both the  suits.

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The trial judge held that the suits? were not  maintainable, but, instead of dismissing the suits there and then, he  set them down for a future date.  Revision applications under s. 115  of the Code of Civil Procedure were filed in  the  High Court  by Dillon and were allowed, and the  present  appeals have  been  filed  by Khanna by special  leave  against  the orders of the High Court. The  short question that arises in this case is whether  the High Court was right in exercising its jurisdiction under s. 115  of  the Code of Civil Procedure.  Strong  reliance  was placed  before us upon two decisions of the  Rajasthan  High Court  reported  in  Purohit Swarupnarain  v.  Gopinath  and another(1)  and Pyarchand and others v. Dungar  Singh(2)  in which it was held that the jurisdiction under s. 115 of  the Code  of Civil Procedure can only be exercised in a case  in which  no appeal lies to the High Court either  directly  or indirectly  after other appeals.  It was contended  that  in the present cases appeals would have lain to the High  Court directly  from  the  decrees, because  both  involved  large amounts  and were tried on the regular side and that s.  115 could  not be invoked.  This has led to a discussion  as  to the jurisdiction of the High Court created by s. 115 of  the Code of Civil Procedure. The  Trial  Judge  concluded that the suits  were  for  con- tribution between partners of a dissolved firm which was  in the process of winding up and that not being suits for (1) I.L.R. [1953] Raj. 483 F.B. (2) I.L.R. [1953] Raj. 608. 424 general  accounts, were not maintainable.  There can  be  no doubt that by this decision, if it was erroneous, the  trial Judge  denied  to himself a jurisdiction to try  the  suits. Further  it is plain that the suits, in so far as the  trial judge was concerned, were also over notwithstanding the fact that  he  had fixed them on a subsequent date  "for  further proceedings."  The  High Court was of the opinion  that  the suits were plainly to recover the amounts borrowed by Khanna from  the joint account.  The High Court was right in  this. Under  the  compromise, Dillon was required to  recover  the assists,  convert them into cash and put them into  a  joint account  not only on behalf of himself but under a power  of attorney  from Khanna also on the latter’s behalf,  but  the cash  was at the disposal of Dillon provided he  applied  it first in liquidation of the joint liability.  Khanna had  no share  in it except to see that the liabilities  were  first discharged.   A  borrowing from this joint account  must  be regarded as a loan given by Dhillon to Khanna and the  suits were,  therefore, not for contribution but for  recovery  of loans  advanced from the joint account.  The High Court  was also   right  in  holding  that  the  trial  judge  had   no jurisdiction  to keep the suits pending before  himself  for "further  proceedings"  when  he had held  them  to  be  not maintainable.   The  decision  of  the  trial  judge   being erroneous  and that of the High Court right, the only  ques- tion is whether the High Court properly exercised its juris- diction  under  s.  115 of the Code of  Civil  Procedure  to correct the error. Section 115 of the Code of Civil Procedure reads as  follows :               "The High Court may call for the record of any               case  which  has  been decided  by  any  Court               subordinate to such High Court and in which no               appeal lies thereto, and if such,  subordinate               Court appears-               (a)   to  have  exercised a  jurisdiction  not               vested in it by law, or

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             (b)   to  have  failed  to  exercise  of   its               jurisdiction so vested, or               (c)   to  have  acted in the exercise  of  its               Jurisdiction   illegally  or   with   material               irregularity,               the High Court may make such order in the case               as it thinks fit". 425 The  power  which  this Section confers is  clearly  of  the nature  of  a proceeding on a writ of Certiorari’.   But  it differs  from that power in many ways.  Certiorari has  many different forms which may be classified as follows (1)  Certiorari’ to re move for trial ; (2)  Certiorari for judgment or indictment; (3)  Certiorari to quash; (4)  Certiorari’  for  purposes  of  execution  or  coercive process; (5)  Certiorari to remove orders etc., on case stated; (6)  Certiorari’ to remove Depositions for Bail; and (7)  Certiorari to remove Record for use as evidence. In  English  Common  Law Certiorari to  quash  issues  in  a completed  case  and the Common Law is now  crystallised  by Order  58  of the Rules of the Supreme  Court.   In  America Certiorari has been differently understood and is a means of review.  That arises from the Special Appellate jurisdiction of  the United States Supreme Court created by Statute  (See U.S.C.A.  Tit.  28, para 1254) and from the  fact  that  the Supreme  Court  must of necessity exercise this power  as  a part of its appellate jurisdiction. This  supervisory power of the High Court under the  English Law is not to be confused with visitorial power of the  High Court  exercisable by the writ of Mandamus. Mandamus  issues to  Courts only when justice is delayed and is a command  to them  to  hear and dispose of the case.  There is  also  the writ of Prohibition which issues to a Court to stop it  from taking  upon  itself  to examine a cause and  to  decide  it without  legal authority.  The writ of Mandamus was  evolved much later than the writ of Certiorari’ and by Mandamus  the Courts were not directed to give any particular judgment but merely to give Judgment.  An erroneous judgment could be set aside on appeal or quashed by Certiorari’.  Prohibition  lay to  prevent  assumption of jurisdiction but only  before  an order  was passed.  Certiorari’ to quash lay in a  completed case  on  a  question of jurisdiction and an  error  of  law apparent on the face of the record.  As Lord Sumner observed in Rex v. Nat Bell Liquors Ltd.(1) :               "Its jurisdiction is to see that the  inferior               Court has not               exceeded its own, and for that very reason  it               is bound               (1) [1922] 2 A.C. 128, 156.               28-2 S. C. India/64               426               not to interfere in what has been done  within               that  jurisdiction, for in so doing  it  would               itself,  in turn, transgress the limits  which               its  own jurisdiction of supervision,  not  of               review, is confined.  That supervision goes to               two  points; one is the area of  the  inferior               jurisdiction   and  the   qualifications   and               conditions  of its exercise; the other is  the               observance  of  the law in the course  of  its               exercise".               From the above discussion it is apparent  that               interference  with a case before  an  inferior

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             Court  by Prerogative writs could  take  place               under the English Law:               (a)   by stopping proceedings before the  case               was decided by a writ of Prohibition;               (b)   ordering  the  trial of a case  and  the               delivery of judgment by Mandamus.               (c)   quashing  an order in a  completed  case               for  want of jurisdiction or for an  error  of               law apparent on the face of the record. The power given by s. 115 of the Code is clearly limited  to the  keeping of the subordinate courts within the bounds  of their   jurisdiction  It  does  not  comprehend  the   power exercisable under the writs of Prohibition or Mandamus.   It is  also  not a full power of Certiorari in as  much  as  it arises only in a case of jurisdiction and not in a case  ,of error.  It has been ruled by the judicial Committee and also by  this  Court that the section is  concerned  with  juris- diction and jurisdiction alone involving a refusal to  exer- cise  jurisdiction  where  one exists or  an  assumption  of jurisdiction  where  none  exists  and  lastly  acting  with illegality  or  material irregularity.  Where  there  is  no question of jurisdiction in this manner the decision  cannot be  corrected  for it has also been ruled that a  Court  has jurisdiction  to  ,decide wrongly as well as  rightly.   But once a flaw of jurisdiction is found the High Court need not quash and remit as is the practice in English Law under  the writ of Certiorari but pass such order as it thinks fit. Judged  from  this angle, the decision of  the  trial  judge being  erroneous for the reasons pointed out by  my  learned brother  Shah,  J., the trial judge was  clearly  denying  a jurisdiction  by holding that the suits were  not  maintain- able.  The only question is whether these. can be said to be "cases" "decided" by the Subordinate Judge and whether 427 the suits answer the description "in which no appeal  lies", It may be noticed that the last phrase does not speak of  an appeal  ’under  the Code’.  The description therefore  is  a general  one and applies to every decision of a  court  sub- ordinate to the High Court in which no appeal lies,  whether under the Code or otherwise.  A decision of the  Subordinate Court  is therefore amenable to the revisional  jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies therefrom. The  decision in this case was clearly one which put an  end to  the suits and the fact that the Subordinate Judge  still kept  the  suits pending before himself  for  ’further  pro- ceedings’  for  reasons  not very clear did  not  alter  the nature  of  the  decision.  Indeed as the  High  Court  also pointed  out,  the fact that the Subordinate Judge  did  not dismiss  the  suits  and did not draw up  decrees  for  that purpose, is itself an exercise of jurisdiction with material irregularity  if  not  also illegality.  In so  far  as  the parties  were concerned the suits were no longer live  suits since the decision, such as it was, had put an end to them. It  is  however  contended  on  the  authority  of  the  two decisions  of  the Rajasthan High Court that the  words  ’in which  no  appeal lies’ indicate a case in which  no  appeal lies  to the High Court from the final determination  either directly  or ultimately and it is pointed out that in  these suits there would ultimately have been decrees of  dismissal which would have been appealable.  It is thus urged that the power under s. 115 of the Code of Civil Procedure could  not rightly be invoked.  The opinion of the Rajasthan High Court has  not been accepted in the other High Courts and  it  has been  held  in a very large number of cases that  the  words

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’case  decided’  and the phrase "in which  no  appeal  lies" refer not only to the final decision but are wide enough  to include certain interlocutory orders involving  jurisdiction and  from which no appeal lies under the Code or  otherwise. The words "record of any case...... decided" in this context refer  to  the  record of the  proceedings  leading  upto  a decision  in  which there is an  assumption  of  unwarranted jurisdiction  or a denial of an existing one or  a  material irregularity or illegality in the exercise of  jurisdiction. Where, however, an appeal lies from the final  determination to itself or to another court, the High Court 428 in  the exercise of its discretion may decline to  interfere at  the  interlocutory  stage  unless  interference  at  the earlier stage tends to prevent reparable injury is otherwise manifestly  just  and expedient.  Since  decisions  in  most cases tried by the Subordinate Courts are subject to one  or more  appeals and one such appeal is to the High Court,  and where there is no appeal there are special provisions giving even  wider powers of interference to the High Court by  way of revision than those under s. 115, the interpretation  put by the Rajasthan High Court on the section of the Code would make  the power available in a remarkably small,  number  of cases.  This general power as shown above was intended to be used  otherwise and the word case does not mean a  concluded suit or proceeding but each decision which terminates a part of  the  controversy  involving a  matter  of  jurisdiction. Where  no question of jurisdiction is involved  the  Court’s decision  cannot  be impugned under s. 115 for it  has  been said  repeatedly a Court has jurisdiction to decide  wrongly as well as rightly. In  my opinion, the construction generally accepted  in  the High  Courts is more in keeping with the letter and   spirit of the section considered as a whole than the view  accepted inthe  two  cited cases.  As I pointed out  earlier,  the sectionconfers a power analogous to the power to issue  a writof  Certiorari’  but  only  with  a  view  to   keeping SubordinateCourts    within   the   bounds   of    their jurisdiction. This poweris  exercisable in respect  of  all orders involving jurisdiction in which no appeal lies to the High Court.  The present cases answer the description as the Orders of the Subordinate Judge were erroneous in denying  a Jurisdiction  and  no appeal lay to the High  Court  against them.   Even otherwise, the trial judge was in error in  not dismissing the suits.  His decision that the suits were  not maintainable  and  yet keeping them pending  was  itself  an exercise  of jurisdiction with a material irregularity.   If the  trial judge had dismissed the suits and passed  decrees there  would undoubtedly have been appeals and  no  revision would  have lain.  But the order actually passed by him  was not a decree nor even an order made appealable by s. 104  of the   Code.  Involving  as  it  did  a  clear  question   of jurisdiction it was revisable and the High Court was  within its rights in correcting it by the exercise                             429 of its powers under s. 115 of the Code. The  appeals must therefore fail and I agree with the  order proposed by my learned brother Shah, J. Appeals dismissed.