Shah, J.C. Sarkar, and A.K. Hidayatullah
Major S. S. Khanna
Brig. F.J. Dillion
In a suit which was declared non-maintainable but has not been completely disposed of by a Trial Court, whether the High Court was right in exercising its jurisdiction under s. 115 of the CPC?
- 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 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 the 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 debt released 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.
- Dillon filed a suit in the Court of the Subordinate Judge at Delhi for a decree for Rs. 54,250.00 with future 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.
- In trying the 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, the revision petitions were filed in the High Court under S. 115 of the Code of Civil Procedure.
- 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.
- The jurisdiction of the High Court to set aside the order in exercise of the power under S. 115 Code of Civil Procedure was challenged by Khanna.
- The appellant contended that since 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, hence it does not come under the revisional jurisdiction of the High Court.
- According to him, the order did not amount to a "case which has been decided" within the meaning of S.115 Code of Civil Procedure.
- The respondent replied by saying that the Section consists of two parts: First, it 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. And secondly, it 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".
Relevant Paragraphs (Paragraph Numbers 11, 13, 24, and 28 of the Original Judgement)
- If the expression "case" in Section 115 of CPC is interpreted as an 'entire proceeding' and not a 'part of a proceeding' would lead to a restriction imposed 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.
- If the expression "case" includes a part of the case, then the order of the Subordinate Judge on the non-maintainability of the suit must be regarded as a "case which has been decided".
- Justice Hidayatullah stated: "A Subordinate Court's order 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 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 proceedings' for reasons not very clear did not alter the nature of the decision."
The High Court dismissed the appeal of the applicant stating that the decision given by the Trial Court, 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 laid. But the order actually passed by him was neither 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 of its powers under S. 115 of the Code.
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