CPC II Prjt 1

CIVIL PROCEDURE CODE II III YEAR VIII

TRIMESTER

MAJOR KHANNAV. BRIGADIER DHILLON, AIR 1964 SC 497 –

A CASE REVIEW

SUBMITTED BY:

Varun Sen Bahl

1943

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TABLE OF CONTENTS

Table of Cases and Statutes..................................3Introduction.................................................4Research Methodology.........................................5Chapter I....................................................6Chapter II...................................................9Chapter III.................................................18Chapter IV..................................................25Conclusion..................................................29Bibliography................................................30

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TABLE OF AUTHORITIES

CASES

1. Balakrishna Udayar v.Vasudeva Aiyar, L.R. 44 IndAp 261.

2. Brij Gopal Mathur v. Kishen Gopal Mathur, AIR 1973 SC 1096.

3. Buddhoo Lal v. Mewa Ram, AIR 1921 All 1 (FB).

4. Hari Bahadur Lakhtakiav. District Judge, Allahabad and Ors.,[2002] 5 AWC

3857.

5. Kadiyala Rama Rao v. Gutala Kahna Rao (2000) 3 SCC 87.

6. Keshardeo Charima v. Radhakishen Charima, AIR 1953 SC 23.

7. Major Khannav. Brigadier Dhillon, AIR 1964 SC 497.

8. Manohar Lal v. Valerior (Cawnpore) Pvt. Ltd. And Anr., AIR 1980 All.

327.

9. Purohit Swarupnarain v. Gopinath and Anr., I.L.R. [1953] Raj. 483.

10. Pyarchand and Ors. v. Dungar Singh, I.L.R. [1953] Raj. 608.

11. Rajendra Singh and Ors. v. Brij Mohan Agarwal and Anr., AIR 2003

All. 180.

12. Ryots of Garabandho v. Zamindar of Parlakimedi, L.R. 70 IndAp 129.

13. Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and

Ors.,AIR 2003 SC 2434.

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STATUTES

Code of Civil Procedure, 1908.

INTRODUCTION

The Full Bench of the Supreme Court, comprising of Shah J.,

Hidayatullah J., and A.K.Sarkar J., delivered the landmark

judgment of Major Khanna v. Brigadier Dhillon1 in 1964. The decision

rendered by Shah J., and Hidayatullah J., has been of great

significance in the interpretation of Section 115 of the Code

of Civil Procedure, 1908 (hereinafter “CPC”), which is

concerned with the revisional jurisdiction of the High Court.

This case was decided prior to the amendments to the Section

115 of the CPC in 1976 and 1999.

1Major Khanna v. Brigadier Dhillon, AIR 1964 SC 497.

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According to Section 115 of the CPC, the High Court is

empowered to enquire into the question of whether an order

passed by a subordinate court was within its jurisdiction;

whether that court ought to have exercised its jurisdiction in

that case; and whether by exercising its jurisdiction, the

court acted in an illegal or materially irregular manner.2 The

primary issue before the Apex Court in Major Khanna’s case was

whether or not the invocation of the revisionary power under

Section 115 of the CPC, by the High Court was proper or not.

The Court examined in detail the meaning, scope and

connotations of the un-amended Section 115 of the CPC, and

inquired into the legislative history of the provision and the

practices in the colonial Presidency Courts to highlight the

rationale behind the provision of powers of revision to the

High Court. One significant contribution of this case was that

it clarified the meaning of the term “ case decided ” under

Section 115 of the CPC. This was crucial as the prior to this

case, different stances were taken by different High Courts

and revision petitions were even allowed against orders which

disposed off only part of the dispute.

In the first part, this paper contains a critical analysis of

the decision in Major Khanna v. Brigadier Dhillon, in the light of the

facts, contentions of the parties, issues, and the judicial

pronouncements at the District Court, High Court and the

Supreme Court. The changes in the revisionary powers of the

High Court by amendments to the Section 115 of the CPC are

traced by the researcher subsequently. The paper ends with the

2Major Khanna v. Brigadier Dhillon, AIR 1964 SC 497.

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analysis of the cases decided after Major Khanna’s case which

has consistently held the decision in this case as good law.

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RESEARCH METHODOLOGY

AIM

The aim of the following paper is to undertake a critical

appraisal of the landmark case of Major Khannav. Brigadier Dhillon in

the context of the revisionary powers of the High Court as

contained within Section 115 of the Code of Civil Procedure.

SCOPE

The scope of this paper is limited to an analysis of the

decision in Major Khannav. Brigadier Dhillon in relation to Section

115 of the CPC along with the concerned cases that have upheld

the principles laid down in this case as well as the cases

which have been relied on in Major Khannav. Brigadier Dhillon.

METHOD OF WRITING

A descriptive as well as analytical style has been adopted in

this paper. A theoretical exposition of Section has been done

after analysing Major Khannav. Brigadier Dhillon in detail.

RESEARCH QUESTIONS

What are the pertinent facts of Major Khanna v. Brigadier

Dhillon?

What was the ratio decidendi in this case?

What was the rationale behind the decision?

How has the interpretation of S. 115 in this case

subsequently dealt with in various cases?

SOURCES OF DATA

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Primary sources of data such as case law and statutes as well

as secondary sources of data such as books and articles from

journals have been used.

MODE OF CITATION

A uniform mode of citation has been maintained throughout the

project.

CHAPTER I:

FACTS, CONTENTIONS AND ISSUE

FACTS OF THE CASE

A partnership business was entered into by Brigadier. Dhillon

and Major S. S. Khanna but was dissolved later by utilising a

deed of dissolution. Further, it was decided that Bgr. Dhillon

would assume control of the assets of the partnership, as an

absolute owner, thus also agreeing to discharge all the

liabilities and debts of the business. Khanna would be kept

insured against all claims and demands made against the

business. However, this deed did not end the disputes between

the parties, resulting in Khanna initiating action against the

former in the Court of the Subordinate Judge, 1st Class, Delhi

“for the dissolution of the partnership business and the

rendition of accounts”. On January 12, 1957, a compromise was

arrived at by the parties, which was then decreed by the

Court. This confirmed the earlier dissolution, as long as a

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process of winding up was followed, under which it was decided

that the outstanding revenues that would be realized from the

firm’s debtors, as well as all of the proceeds from the sale

of a specified list of assets would be deposited into a joint

account to be held jointly by both parties. This bank account

was to be then applied to absolve them of all of the

liabilities of the firm post-dissolution, with the balance

then belonging to Dhillon. There were certain outstanding

amounts left over from the dissolution, which were then

collected by Dhillon, with the rest being deposited in the

joint account.

CONTENTIONS BEFORE THE TRIAL COURT

Dhillon:

Subsequently, a suit was filed by Dhillon in the Subordinate

Court of Delhi for Rs. 54, 250 with interest.

It was contended by him at the request of Khanna, he had

advanced in three sums an aggregate amount of Rs. 46,000,

between the months of May 1957 and November 1957

Khanna had promised to pay such short-term loans taken

but had failed to do the same.

Khanna:

It was contended by Khanna, that Dhillon had not provided

any amounts to him, and further, he had not claimed the

amount for himself, and thus, he was not entitled to file

a suit for recovery of this amount.

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Further, since Dhillon had admitted in the plaint that

the concerned amounts in the suit were to be deposited

back into the joint account, he was not entitled to file

the suit.

Moreover, a suit for recovery of a joint fund, or any

item contained therein by one joint owner against the

other, was not maintainable.

Dhillon had no grounds to initiate the suit before him,

as the amount was not capable of being repaid.

ISSUES BEFORE THE TRIAL COURT

Whether the fund belonged to both Dhillon and Khanna

jointly?

Whether the question regarding the ownership of the fund

out of which the amounts were provided was material, in a

suit for the enforcement of an agreement to repay an

amount lent in consideration of a promise to repay that

amount?

DECISION OF TRIAL COURT

Instead of dismissing the suit, the trial judge set the issues

down for a later date, subsequent to which, Dhillon filed a

revision petition under S. 115, CPC, which was allowed by the

High Court.

CONTENTIONS BEFORE APPELLATE COURT

Khanna:

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The order did not amount to “a case which has been

decided” within the meaning of Section 115 Code of Civil

Procedure.

The power of the High Court as indicated by the express

provisions of Section 115 excluded the decree which can

be passed in a suit that is being subjected to an appeal

to the High Court.

The order did not fall within any of the three clauses

(a), (b) and (c) contained within Section 115.

Dhillon:

The High Court was just and right in its exercise of

powers under Section 115 of the CPC as the trial Judge

was wrong in assuming the affirmation of the questions of

fact to be determined before deciding the issue of law

involved as to the maintainability of the suit.

ISSUE BEFORE THE APPELLATE COURT

Whether the High Court was right in exercising its

jurisdiction under Section 115 of the Code of Civil

Procedure?

DECISION OF THE HIGH COURT

The contentions raised by Khanna in his written statement

raised substantial issues of fact which had to be decided on

evidence which had not been done by the court of first

instance and therefore the High Court invoked its powers under

Section 115(c), CPC to set aside the order of the trial court.

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DECISION OF THE SUPREME COURT

Upon appeal to the Supreme Court, the Apex Court sought to

explain Section 115, CPC and thereby determine if the High

Court correctly invoked its power under Section 115 of the CPC

to set aside the order of the trial Judge.

“The court considered the meaning of the term “case” under

Section 115, CPC and concluded that “The same applies to every

decision of a court subordinate 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 such jurisdiction is

explicitly barred by a special law or an appeal lies therefrom.” It was also

clarified that “‘case’ does not refer to 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 Section 115 because a Court has jurisdiction to decide wrongly

as well as rightly.”

It was held that the power conferred by the Section is similar

to writ of Certiorari and the Subordinate Judge was wrong in

denying the jurisdiction and no appeal lay to the High Court

against his orders. It was said in this regard that “The suits

were not maintainable but subsequently keeping them pending was in itself an

exercise of jurisdiction with a material irregularity and even if he had dismissed the

suits and passed decrees there would undoubtedly have been appeals and no

revision would have been possible. But the order actually passed by him was neither

a decree nor an order made appealable by Section 104 of the Code. It involving a

clear question of jurisdiction and hence was revisable and the High Court was within

its rights in rectifying it by invoking its powers under Section 115 of the Code.”

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In light of the above considerations, the Supreme Court

dismissed the appeal.

CHAPTER II:

THE APEX COURT’S REASONING

Section 115, CPC reads as:

“The High Court may call for the record of any case which had

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

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in exercise of its jurisdiction illegally or

with material irregularity, the High Court may make such order

in the case as it thinks fit.”

It was elucidated that the first part lays down the conditions

that need to be satisfied for the jurisdiction of the High

Court to arise. Thus, there are cases decided by a lower

Court, which cannot be appealed against in the High Court. The

section also contains a second part, which highlights the

positive conditions under which the jurisdiction may be

exercised. However, the power of the High Court can be

exercised with respect to any case that has been decided.

Further, the term, “case” has not been defined in the CPC, nor

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has it been elucidated upon by the General Clauses Act, and it

is not restricted to those litigations which satisfy the

conditions for a suit to be filed in a Civil Court.

CASES CITED IN THE JUDGMENT

Balakrishna Udayar v.VasudevaAiyar3

Facts of the case:

An appointment was made of a member to the Committee managing

Religious Endowments at the direction of the District Court as

per Section 10 of the Religious Endowments Act, 1863. Section

2 of the Act defined the terms “civil court” and “court” as

“the Principal Court of Original Civil Jurisdiction in the district in which the mosque,

temple, or religious establishment, is situate relating to which, or to the endowment

whereof, any suit shall be instituted or application made under the provisions of this

Act.” It was contended before the District Judge that the

election of the member was irregular which was however held

the same to be valid. The respondents asked for a revision of

the order under Section 115. This was objected on the ground

that, on the construction of the statute, a petition for

revision of the adjudication of the District Court did not lie

in such a matter as that dealt with in Section 10 of the

Religious Endowments Act of 1863.

Issue:

(i) Whether Section 115 of the CPC can be invoked by the

High Court?

3Balakrishna Udayarv.Vasudeva Aiyar, L.R. 44 IndAp 261.

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(ii) What meaning can be ascribed to the term “case” under

Section 115, CPC?

Decision:

The High Court invoked its powers under Section 115, CPC and

held that according to the true construction of the 10th

section, the District Court had no jurisdiction whatsoever to

order the remaining members of the committee to fill up the

vacancy by means of an election, or to validate the filling up

of it by these means in obedience to such an order. It further

ordered that the order of the District Judge should be set

aside, as it was made without jurisdiction, and that the case

should be sent back to be dealt with by the District Court by

the light of this judgment.

The Privy Council upheld the High Court decision, reasoning

that the Civil Court exercises its powers as a Court of Law,

not merely, as a persona designate whose determinations are

not to be treated as judgments of a legal tribunal. It was

held that “‘case’ includes a proceeding in a Civil Court in which the jurisdiction of

the Court is invoked for the determination of some claim or right that is legally

enforceable. 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. It cannot be confined to a litigation in which there is a

plaintiff who seeks to obtain particular relief in damages or otherwise against a

defendant who is before the Court.”

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Pyarachand and Others v.Dungar Singh4

Facts of the case:

Dungarsingh filed a suit against Pyarchand and others in

October 1944 on the basis that a certain arbitration award

dated 20-4-1944, may be ordered to be filed and a decree

passed in accordance with it. The parties have common

ancestors and there were disputes between the parties about

partition of their ancestral property. In one such litigation,

there was a revision to the High Court of the former State of

Mewar. It was agreed that those disputes between the parties

which were not then pending in Courts would also be decided by

this arbitrator. The arbitrator gave an award on 20-4-1944 and

filed it in the High Court at Udaipur on the same day.

Consequently, Dungarsingh applied to the High Court at Udaipur

for passing a decree in terms of the award on 1-7-1944. That

application was disposed of by the High Court in September

1946 and the parties were directed to approach the Courts

directly where the litigation was pending. In the meantime,

another suit was filed by Dungar Singh in the Court of the

District Judge at Udaipur with a certified copy of the award.

The District Judge decided that the court-fee paid was

sufficient and that the application was not barred by

limitation, and ordered the proceedings to go on. Thereupon a

revision was filed in the High Court of the former State of

Mewar on 10-2-1948 against the order of the District Judge.

Issue:4Pyarchand and others v.Dungar Singh, I.L.R. [1953] Raj. 608.

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(i) Whether or not the order sought to be revised decides a

case and whether or not a revision petition is

competent against it?

Decision:

The Court laid down the conditions for applicability of

Section 115, CPC:

(1) There should be a case decided

(2) The decision should be of any court subordinate to the

High Court

(3) No appeal should lie from that decision to the High Court,

if all the three conditions are satisfied, the High Court will

be competent to entertain the revision petition under Section

115.

It was 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. By utilising the term “in” instead of “from” in

Section 115, the intention of the Legislature is clear- if a

particular order was one which could be brought forward before

the High Court in an appeal in any form, the High Court cannot

exercise its revisional jurisdiction in that scenario.

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However, it was pointed out that a possibility of a delay

arising while disposing cases, is not a ground to presume that

jurisdiction is to be limited to only those matters which have

been disposed of finally. In order to ensure that a High Court

can exercise its powers of supervision and visitation, the

revisional jurisdiction power was conferred upon High Courts,

and restricting it to only situations wherein no appeal would

reach the High Court from a final order passed in a particular

proceeding, would be an unwarranted limitation placed upon its

jurisdiction. As a result, it was decided that the decision of

the Rajasthan High Court was erroneous.

Buddhoo Lal v.Mewa Ram5

Facts of the case:

“The plaintiff resided and carried on business as a cloth

merchant in Etawah, while the defendants were commission

agents who lived and carried on business at Cawnpore. A

dispute arose between them in connection with the orders given

by the plaintiff for the purchase of cloth. The plaintiff

thereupon instituted a suit in the Court of the Munsif of

Etawah for the recovery of a certain amount by way of damages.

One of the pleas taken in defence was that the Court at Etawah

had no jurisdiction to entertain the suit which should have

been filed in tin Civil Court at Cawnpore. The learned Munsif,5Buddhoo Lal v. Mewa Ram, AIR 1921 All 1 (FB).

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instead of trying all the issues raised in the case, proceeded

to receive evidence and hear arguments on the question of

jurisdiction only. He disposed of the issue of jurisdiction in

his order dated 27th of August 1919 against the defendants. A

formal order was drawn up later on, embodying the decision on

the issue. The defendants preferred an application in revision

from the raid order, seeking the interference of this Court

under Section 115 of the Code of Civil Procedure.”

Issue:

The impugned order being of an interlocutory nature, can it be

a considered under the definition of the word “case” and

hence, can it be a subject matter of revision by the Court

under Section 115, CPC?

Decision:

It was held that the word “case” has a wide connotation, and

the idea that the jurisdiction of the High Court can only be

attracted where a suit, and not a part of it, is decided

proceeds upon a fallacious understanding that just because the

term “case” includes a suit, the limits of the High Court’s

jurisdiction should be determined by substituting the term

“suit” in the section when the order sought to be revised is

an order passed in a suit. While it does include a suit, the

term “case” does not have to be equated with a suit alone, to

determine a High Court’s jurisdiction.

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However, the Court did clarify that the High Court is not

obliged to exercise its jurisdiction, just because the

conditions of the clauses in Section 115 are satisfied, and

the case was decided by a lower Court. The High Court’s

jurisdiction is to be exercised at its discretion, and it is

not bound to interfere in all cases satisfying Section 115.

Several matters are to be taken into account by the High Court

before making the decision to exercise its jurisdiction, such

as the interlocutory nature of the order, the presence of

other remedies to an aggrieved party by way of an appeal, and

the general equities of the case being served, apart from just

the satisfaction of the section.

Purohit Swarupnarain v. Gopinath and another6

Facts of the case:

A suit was filed in the Court of the Additional Civil Judge,

Jaipur City, in which the defendant, who is the applicant in

revision, raised the plea that the custom of pre-emption being

contrary to the provisions of Article 19(1)(f) of the

Constitution of India, should not be given effect to by the

Courts. The Additional Civil Judge heard arguments and decided

the issue against the defendant and ordered the suit to

proceed. Thereupon, the defendant preferred a revision to the

High Court.

Issue:

6Purohit Swarupnarain v. Gopinath and Anr, I.L.R. [1953] Raj. 483.

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Whether “where it is open to a party to raise a ground of

appeal under Section 105, Civil P. C. from the final decree or

order with respect to any order which has been passed during

the pendency” of the case, an appeal from that order lies to

the High Court within the meaning of the term “in which no

appeal lies thereto” under Section 115, CPC?

Decision:

It was held that the word ‘case’ referred to the whole suit or

proceeding, or to a part of a suit or proceeding. But whether

the word ‘case’ refers to the whole suit or proceeding, or to

a part of the suit or proceeding, the words ‘in which’ qualify

the words ‘suit or proceeding’ which may be substituted for

the word ‘case’. Further, it was stated that “The revisability of the

order depends on whether an appeal lies in the suit or proceeding. It is only when

the order in question cannot be challenged at all, in first or second appeal, and even

by way of a ground under Section 105, that it can be said that no appeal lies to the

High Court, and it should, therefore, exercise its extraordinary jurisdiction under

Section 115 to look into the correctness of the order, as required by clauses (a), (b)

and (c) of the section.” Further, the Court also held that, since the

decision of the lower Court (concerning the issue regarding

the entertainment of the suit filed by Dhillon) directly

affected the rights and obligations of the parties, clause(c)

of Section 115, CPC would be attracted as the Court in

deciding that the suit was not maintainable proceeded to

decide what was an issue of fact (in substance) without a

trial of the suit on evidence.

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Ryots of Garabandho v.Zamindar of Parlakimedi7

Facts of the case:

The zamindar having control over some villages in Madras

appealed in the Collective Board of Revenue by way of revision

from the decision of the Special Revenue Officer to settle a

fair and equitable rent in respect of lands to aid the

villages. The Collective Board decided that they were not

prepared to endorse any drastic enhancement of rent as 100 per

cent., and fixed as the appropriate increase an enhancement of

six annas in the rupee, or thirty-seven and a half per cent,

which increase was to be spread over a period of five years.

On February 9, 1937, the appellants petitioned the Madras High

Court for a writ of certiorari to quash the order of the

Collective Board of Revenue, complaining that the rents had

been raised above the limit of two annas in the rupee or

twelve and a half per cent., which is the maximum increase

permitted under Section 30(2)(b) of the Act. The Madras High

Court held that if the section of the statute applied so that

no increase beyond twelve and a half per cent could lawfully

be made, the appellants would be entitled to a writ of

certiorari addressed to the Board of Revenue to correct the

illegality. The petition for the writ was therefore dismissed.

Issue:

Whether subordinate courts to the High Courts of Madras,

Calcutta and Bombay can be brought under the purview of

7Ryots of Garabandhov.Zamindar of Parlakimedi, L.R. 70 IndAp 129.

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Section 115, CPC? Can these High Courts issue writs and do

they have revisional power over the orders passed by the

subordinate courts?

Decision:

The court used the historical background to justify the

revisional jurisdiction that the High Court can exercise over

the subordinate court by invoking its powers under Section

115, CPC.

The Court observed that appellate Courts called the Sudder

Adalats, did not administer the law of England as they were

not the Courts of the King of England but were the formed

under Regulations. These Courts did not possess the power to

issue any of the prerogative writs such as the writ of habeas

corpus. However, for their proper functioning, these Adalats

had to possess the power to superintend the exercise of the

jurisdiction by the lower Mofussil Courts. Thus, express

enactments were passed to grant them the authority to rectify

the orders of the lower Courts. It was only the Bombay

Regulation II of 1827 of Ch. 1 s. 5(2) which approved the

Sudder Court at Bombay to have the power to call for the

proceedings of any subordinate civil court and to issue any

necessary orders. There was no regulation enacted elsewhere

however. Neither did the Code of 1859 contain any provision

for the exercise of revisional powers by the Sudder Courts,

but by s. 35 of Act XXIII of 1861, the Sudder Courts were

grant “the power to call for the record of any case decided in

appeal by the subordinate courts and in which no further

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appeal lay, when it appeared that a subordinate court had

exercised jurisdiction not vested in it by law. 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

clauses (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. The jurisdiction was supervisory and visitorial and was

complementary to the powers conferred by clause 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

be made in respect of the Mofussil Courts.”

“The next question that was addressed was 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.

It was held that the High Court’s 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,

it will imply 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..

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It was remarked that “Under Order 14, Rule 2, CPC, where issues both of law

and of fact arise in the same suit, and the Court is of the 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 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.”

“It was held that in this case, the trial Judge based only on

the pleadings and on the assumption that the allegations made

by the plaintiff were not true and on that footing treating

the joint account as a common ownership of the two partners,

he acted illegally and with material irregularity in the

exercise of his jurisdiction. Therefore, it was held that the

High Court was correct in setting aside the order passed by

the Trial Court upholding the High Court’s decision that the

suit could not be held non-maintainable without investigation

as to the respective claims made by the parties merely based

on their pleadings. Thus, the appeal was dismissed.”

CHAPTER III:

PROVISIONS IN THE CODE OF CIVIL PROCEDURE

The Code of Civil Procedure (Amendment) Act, 1976, brought

certain changes to Section 115 of the CPC. This amendment was

brought about 12 years after the decision was rendered in Major

Singh v. Brigadier Dhillon. The amended Section 115 of the CPC,

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now, had two sub-sections (1) and (2) and a proviso to the

sub-section (1).

Section 115 of the CPC dealing with ‘revision’ after the

amendment in 1976 provided that:

“Section 115. Revision- (1) The High Courtmay call for the record of any case whichhas been decided by any Court subordinateto such High Court and in which no appeallies thereto, and if such subordinateCourt.(a) to have exercised a jurisdiction notvested in it by law, or(b) to have failed to exercise ajurisdiction so vested, or(c) to have acted in the exercise of itsjurisdiction illegally or with materialirregularity, the High Court may make suchorder in the case as it thinks fit.Provided that the High Court shall not,under this section, vary or reverse anyorder made, or any order deciding anissue, in the course of a suit or otherproceeding, except(a) the order, if it had been made infavour of the party applying for revision,would have finally disposed of the suit orother proceeding, or(b) the order, if allowed to stand, wouldoccasion a failure of justice or causeirreparable injury to the party againstwhom it was made.(2) The High Court shall not, under thissection, vary or reverse any decree ororder against which an appeal lies eitherto the High Court or to any Courtsubordinate thereto.

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Explanation: In this section, theexpression “any case which has beendecided” includes any order made, or anyorder deciding an issue, in the course ofa suit or other proceeding.”8

Section 115 was subsequently amended in 1999 and sub-section

(3) was inserted. The clause (b) of Section 115 (1) was

removed by this amendment. Thus, the provision amended in the

1999 now provided that:

“Section 115: Revision.- (1) 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(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 suchorder in the case as it thinks fit:  Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either

8Section 115, Code of Civil Procedure, 1908.(As amended by the Code of Civil Procedure (Amendment) Act, 1976).

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to the High Court or to any Court subordinate thereto.(3) A revision shall not operate as a stayof suit or other proceeding before the , Court except where such suit or other proceeding is stayed by the High Court.Explanation.-In this section, the expression any case which has been decidedincludes any order made, or any order deciding an issue in the course of a suit or other proceeding.”9

It is pertinent to understand the meaning and purpose behind

the amended Section 115 of the CPC. This section examines the

same in the light of the judicial decisions. Under Section 115

of the CPC, all proceedings before a Civil Court for the

enforcement of a legally enforceable claim or right, wherein

its jurisdiction is invoked are covered. The phrase ‘case

decided’ under the provision also includes every decision,

which “terminates a part of the controversy”10. An interlocutory order,

which finally determines the rights and obligations of a

party, is thus, a ‘case decided’ within the meaning of the

section.11

SUB-SECTION (1) OF SECTION 115 OF THE CPC

Sub-section (1) of Section 115 of the CPC dealt with “non-

exercise, irregular or illegal exercise of jurisdiction by a subordinate court”.12

3.1 Clauses (a) and (b) - Jurisdictional Error

9Section 115, Code of Civil Procedure, 1908 (As amended by Code of Civil Procedure (Amendment) Act, 1999).10C.K. Takwani, CIVIL PROCEDURE, 5th edition, 409 (2004).11Id.12C.K. Takwani, Supra note 10, at 410.

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The clauses (a) and (b) of Sub-section of Section 115 of the

CPC provide that decision of the Sub-ordinate Court “on all

questions of law and fact not touching its jurisdiction”13, is not revisable.

There is a finality attached to such decision and the fact

that the decision is erroneous is irrelevant.

3.2 Clause (c) - Illegality or Material Irregularity

This Sub-clause vests the revisional jurisdiction in the High

court over the decision of the Sub-ordinate Court, which

involve “illegality” and “material irregularity”. This pertains to the

manner in which the Court arrived at a decision and not on the

errors of law or fact that were committed while arriving at

the decision. The Supreme Court clarified the meaning of the

clause in the decision KeshardeoCharima v. RadhakishenCharima.14

KeshardeoCharimav.RadhakishenCharima

Facts:In the instant case, the Sub-ordinate Judge had dismissed

an application of adjournment and the execution by the same

order. The decree holder’s pleader was not informed about the

dismissal of the application of adjournment and was not given

any opportunity to make submissions with regard to the

execution case. The pleader filed an application for

restoration of the execution case and the Sub-ordinate Judge,

13M. P. Jain, THE CODE OF CIVIL PROCEDURE, 517 (2004).14Keshardeo Charima v.Radhakishen Charima, AIR 1953 SC 23.

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upon finding that there had been a denial of justice, restored

the same exercising the inherent powers vested in the Civil

Court under Section 151 of the CPC.15

An appeal was preferred by the judgment-debtor in the High

Court and along with it an application for revision was also

filed. The appeal was held to be not maintainable. Exercising

its revisional jurisdiction, the High Court, however, set

aside the order of the Sub-ordinate Judge. The High Court said

that there was a possibility that the decree-holder could have

made some efforts with respect to the execution case after the

application for adjournment was dismissed and asked the Sub-

ordinate Court to look into the matter afresh as it remanded

back the case. The issue before the Supreme Court was “whether

the High Court can invoke its powers under Section 115 to make such order in this

case?”16

High Court: The High Court’s reasoned out the exercise of

revision jurisdiction stating that the dismissal order passed

by the Sub-ordinate Judge denied an opportunity to the decree

holder and his pleader to make their submission in the

execution case and it was correct in setting aside the same in

the exercise of its inherent powers. The appellate

jurisdiction of the High Court was not there in this case

since, there was no “final determination of any question relating to

execution, discharge or satisfaction of a decree”17 and hence, it could not

have entertained an appeal against the order of the Sub-

15Keshardeo Charima v.Radhakishen Charima, AIR 1953 SC 23.16Keshardeo Charima v.Radhakishen Charima, AIR 1953 SC 23.17Keshardeo Charima v.Radhakishen Charima, AIR 1953 SC 23.

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ordinate Court restoring the case. In addition to this, the

order was not an appealable order. 18

Supreme Court: The Supreme Court held that since the Subordinate

Judge in the exercise of the jurisdiction vested in it had

made the order, and there was absence of any jurisdictional

error or illegality or material irregularity, the High Court

did not have any revisional jurisdiction under Section 115 of

the CPC. The High Court’s order of remand of the case for

fresh disposal was therefore held to be illegal.19

3.3 Exercise of Revisional Jurisdiction by the High Court

under Section 115 is discretionary

In additional to the fulfillment of the conditional

requirements set out in Section 115 of the CPC for the

exercise of revisional jurisdiction, while exercising its

discretion under this provision, the High Court has to weigh

the facts and circumstances of the case and then allow or

disallow the revision petition.20 The Supreme Court clarified

the manner in which such discretion has to be exercised by the

High Court in the case of Brij Gopal Mathur v. Kishen Gopal Mathur.21

Brij Gopal Mathur v.Kishen Gopal Mathur

18Keshardeo Charimav.Radhakishen Charima, AIR 1953 SC 23.19Keshardeo Charimav.Radhakishen Charima, AIR 1953 SC 23.20Mulla, THE CODE OF CIVIL PROCEDURE, 16th edition, edited by Solil Paul, Volume I, 498 (2002).21Brij Gopal Mathur v.Kishen Gopal Mathur, AIR 1973 SC 1096.

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Facts: The instant case involved the partition a business, a

joint family business and certain properties belonging to the

joint family. In relation to this, a deed of reference was

executed and the dispute was before the arbitrators who gave

the award and the same was registered. The award of the

arbitrators required Kishan Gopal, who was in occupation of

the property allotted to Brij Gopal, to vacate the property.

Brij Gopal and Sri Gopal filed a suit for the possession of

the house in 1947, however, it was dismissed owing to the bar

under Section 32 of the Indian Arbitration Act, 1940.

Subsequently, an appeal to the High Court was also dismissed.22

Thereafter, Brij Gopal filed an application to the trial

Court, for allowing the application. However, it was not

allowed owing to the bar of limitation under Article 181 of

the Indian Limitation Act, 1963. An appeal against this order

was filed to the High Court and subsequently; an application

was made by Brij Gopal to withdraw the award of the

arbitrators. The High Court allowed the application. However,

two arbitrators filed an application with the Court of Civil

Judge. They claimed under Section 14(2) of the Indian

Arbitration Act, 1940, that their award was accepted and acted

upon by the parties. However, Court found that after the

delivery of the award the arbitrators had become functus officio

and their application was rejected as they did not have

jurisdiction to file a fresh award. This resulted in another

appeal being filed to the High Court against this order of the

22Brij Gopal Mathur v.Kishen Gopal Mathur, AIR 1973 SC 1096.

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Court of Civil Judge. The issue in this case was whether the

“High Court could exercise its discretionary power under Section 115 of the CPC”.23

Supreme Court: While rendering its decision in this case, the

Supreme Court relied on the decision given in Major S.S. Khanna v.

Brig. F.J. Dillon. The Court pointed out that it was well-settled

that revisional jurisdiction cannot be exercised merely

because the conditions under Clauses (a), (b) or (c) of

Section 115(1) have been satisfied. This jurisdiction is

discretionary and the High Court is supposed to consider the

facts and circumstances, which give the petitioner a right to

relief by way of a revision petition. The High Court must look

into whether the order of the High Court caused any

substantial failure of justice. In the instant case, the Apex

Court concluded that the High Court exercised its discretion

correctly and dismissed the appeal. The Apex Court did not

consider a revision petition necessary in this case.

3.4 Proviso to sub-section (1) of Section 115 of the CPC:

The purpose behind insertion of the proviso was to put a hold

on to the revision of the interlocutory orders, “(1) which if

decided in favor of the petitioner would finally dispose of the suit or (2) in which the

order is allowed to stand is likely to cause irreparable injury or failure of justice”24

and to reduce the flooding of the Courts with cases involving

revision petitions.

SUB-SECTION (2) OF SECTION 115

23Brij Gopal Mathur v.Kishen Gopal Mathur, AIR 1973 SC 1096.24 S.C. Sarkar and Prabhas C. Sarkar, THE LAW OF CIVIL PROCEDURE, Volume I, edited by Sudipto Sarkar, edn., 20th, 587 (2005).

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The Sub-section provides that High Court shall not have any

revisional jurisdiction in the event that an appeal from the

order or decree lies to the High Court or any subordinate

Court. This was a departure from the older provision under

which the revisional power of the High Court was not excluded

owing to the mere fact that an appeal laid to the appellate

Court.25

3.5 Meaning of “in which no appeal lies thereto”:

Revision jurisdiction of the High Court extends over the

orders passed by the Subordinate Court, which are not

appealable. Similarly, the revision jurisdiction during the

course of the trial is not barred due to the mere fact that an

appeal lies against the order, does not bar the revision

jurisdiction. Revision also lies in cases where a first appeal

is allowed but not the second appeal. The Supreme Court

clarified the meaning of the phrase in Kadiyala Rama Rao v. Gutala

Kahna Rao.26

Kadiyala Rama Raov.Gutala Kahna Rao

Facts: The instant case involves an auction purchase of a

house by the purchaser. After the sale was confirmed, the

respondents for filed an application for setting it aside. The

District Munsif rejected the application and the execution

petition was disposed of. The possession of the house was

delivered to the appellants. The respondents, thereafter,

filed an application under Section 115 of the CPC before the 25 S. Nandy, THE CODE OF CIVIL PROCEDURE,1908 356 (1997).26Kadiyala Rama Rao v.Gutala Kahna Rao (2000) 3 SCC 87.

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High Court and the High Court granted an interim stay on the

proceedings. The appellants filed a review petition

subsequently, which was rejected by the High Court. The

appellants filed an appeal before the Supreme Court and the

issue that came up before the it was whether “a revision petition

against an order passed by a subordinate court in its appellate jurisdiction

maintainable within the ambit of Section 115, if the same is not appealable”27

Supreme Court: The revision petition was held to be not

maintainable and held that in any case, revisional

jurisdiction of the High Court would extend over orders passed

by the Sub-ordinate courts against which no appeal lies. The

appeal was therefore allowed and the Supreme Court upheld the

order passed by the executing Court.28

3.7 Omission of clause (b):

The clause (b) to the Sub-section (1) of the Section 115 of

the CPC, which had been omitted, provided the High Court could

entertain the revision petition in the event that, irreparable

injury or failure of justice would have been caused if the

order was allowed to remain as it is.29

SUB-SECTION (3) OF SECTION 115 OF THE CPC

Subsection (3) of Section 115 of the CPC provides that “unless

there is a stay of a suit or proceeding by the High Court, a revision shall not operate

as a stay thereof”.30 The rationale behind this was to prevent the27Kadiyala Rama Raov.Gutala Kahna Rao (2000) 3 SCC 87.28Kadiyala Rama Raov.Gutala Kahna Rao (2000) 3 SCC 87.29 S. Nandy, Supra note 16, at 358.30 S.C. Sarkar and Prabhas C. Sarkar, Supra note 14, at 584.

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routine practice of sending the records of the cases pending

in the Sub-ordinate Courts to the High Court, and limit to the

situations where an express demand has been made by the High

Court.31

The next chapter deals with the judicial decisions after the

amendments to the provision in 1976 and 1999.

CHAPTER IV:

THE JUDICIAL PRONOUNCEMENTS FOLLOWING MAJOR KHANNA’S

CASE

The decision of the Supreme Court in Major Khanna’s case is a

good law and has not been set aside or overruled. This

chapter examines a few judicial decisions following Major

Khanna’s case which dealt with Section 115 of the CPC.

Hari Bahadur Lakhtakia v. District Judge, Allahabad and Ors.32

Facts: A suit for ejectment was filed by the plaintiff before

the trial Court. Aggrieved by the decision of the trial Court

where it stated that the document produced before it was a

memorandum of partition and not an instrument of partition,

the defendant filed a revision petition. The order of the

trial Court was not held to be a ‘case decided’ within the

meaning of Section 115 of the CPC and the revision petition

31 S.C. Sarkar and Prabhas C. Sarkar, Supra note 14, at 584.32Hari Bahadur Lakhtakia v. District Judge, Allahabad and Ors.,[2002] 5 AWC 3857.

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was held to be not maintainable. A writ petition was filed by

the defendant against this order of the High Court and the

issue was “whether the revision petition is maintainable under Section 115,

CPC?”33

Decision:Relying on the interpretation of the phrase “case

decided” under Section 115 of the CPC in Major S.S. Khanna v. Brigadier

Dhillon, it was held that the trial Court’s order was not a case

decided. The trial Court’s order was merely admitting an

evidence and rejecting the contention of the defendant and the

same could not understood as ‘case decided’ for allowing revision

petition under Section 115 of the CPC. Accordingly, the writ

petition was dismissed by the Court.34

Rajendra Singh and Ors .v. Brij Mohan Agarwal and Anr.35

Facts:An application was filed by the plaintiffs for a

temporary injunction in this case, which involved a suit for

permanent injunction disallowing the defendants from raising

constructions on the property in dispute and preventing

alienation of the land. The grant of ex-parte temporary

injunction was denied by the Additional Civil Judge and a

revision petition was filed in the High Court by the

plaintiffs. The issue before the Court was “whether such order of

refusal to grant temporary injunction can be brought under the purview of “case

decided” under Section 115, CPC? and Can the High Court entertain the revision

petition filed by the plaintiffs?”36

33Hari Bahadur Lakhtakia v. District Judge, Allahabad and Ors.,[2002] 5 AWC 3857.34Hari Bahadur Lakhtakia v. District Judge, Allahabad and Ors.,[2002] 5 AWC 3857.35Rajendra Singh and Ors. v. Brij Mohan Agarwal and Anr., AIR 2003 All. 180.36Rajendra Singh and Ors.v.Brij Mohan Agarwal and Anr., AIR 2003 All. 180.

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High Court: In the light of the decision in Major Khanna’s case

it was held that since the order of the Additional Civil Judge

rejected the application for temporary injunction did not lead

to disposal of the case nor did it lead to disposal of the

application. The Court also added that in any case, if the

injunction applicatoin was allowed or rejected, an appeal

would lie against such order of the Court and hence, putting a

bar on the revisional jurisdiction of the High Court. The

subsequent amendment to Section 115 of the CPC, now provides

that revision petition shall be restricted to “a situation where the

case decided disposes of the suit or proceedings”.37 In the instant case,

the Court did not order an ex-parte injunction and merely issued

a notice to the opposite party. It did not dispose of the

injunction application, in such a case, the order of the Court

not granting an ex-parte injunction would not be a ‘case decided’

under Section 115 of the CPC. The revision petition was held

to be not maintainable.38

Manohar Lal v. Valerior (Cawnpore) Pvt. Ltd.And Anr.39

Facts: This case involved an application filed by the

defendant seeking recall and cross-examination of the witness

which was dismissed by the District Judge. A revision petition

against this was filed in the High Court. In the High Court,

an objection with regard to the maintainability of the

revision petition was raised as the order of the District

Judge did not amount to a ‘case decided’ within the meaning of37Rajendra Singh and Ors.v. Brij Mohan Agarwal and Anr., AIR 2003 All. 180. 38Rajendra Singh and Ors.v. Brij Mohan Agarwal and Anr., AIR 2003 All. 180. 39Manohar Lal v. Valerior (Cawnpore) Pvt. Ltd. And Anr., AIR 1980 All. 327.

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Section 115 of the CPC. An agrument was made by the

applicant’s that the in the light of the amendment made in

1976, the petition was maintainable as according to the proviso

inserted, revision petition could be made against any order

made during the suit. The issue of maintainability of the

revision petition came before the Court.40

Decision: Relying on the decision in Major Khanna’s case, the

Court said that “a case may be said to be decided if the court adjudicates for

the purposes of the suit some right or obligation of the parties in controversy.”41

The Court held that interlocutory orders donot affect the

rights of the parties and are merely procedural steps towards

final adjudication. The order of the Court rejecting the

application for recall and cross examination of witnesses was

held to be not ‘a case decided’ under Section 115 of the CPC. The

revision petition was not held to be maintainable.42

Shiv Shakti Coop. Housing Society, Nagpurv.Swaraj Developers and Ors.43

In 2003, the Supreme Court in Shiv Shakti Coop. Housing Society,

Nagpurvs.Swaraj Developers and Ors.44clarified the position of law

with regard to Section 115 of the CPC in the light of the

amendments. The interpretation of the provisions of Sectin 115

of the CPC were discussed in this case in great detail. The

facts leading to this case were the refusal of the High Court

to entertain a revision petition on the ground that the suit

was filed prior to the amendment was therefore, the revision

40Manohar Lal v. Valerior (Cawnpore) Pvt. Ltd. And Anr., AIR 1980 All. 327.41Manohar Lal v. Valerior (Cawnpore) Pvt. Ltd. And Anr., AIR 1980 All. 327.42Manohar Lal v. Valerior (Cawnpore) Pvt. Ltd. And Anr., AIR 1980 All. 327.43Shiv Shakti Coop. Housing Society, Nagpur v.Swaraj Developers and Ors.,AIR 2003 SC 2434.44Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors.,AIR 2003 SC 2434.

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under the amended section was not permissible. The twin issues

before the Supreme Court where, “whether revision maintainable against

interlocutory or interim orders and whether revisions filed before amendment to

Section 115 will by affected by such amended section.”45

Decision: The Apex Court noted that clause (b) to the Section

115 (1) had been omitted completely. Prior to the 1976

amendment, a wider revisional jurisdiction vested with the

High Court. Thus, before 1976, the necessity that the impugned

order should be the result of determination of a lis or

proceeding was not there. Revision lied in every scenario

involving a jurisdictional error and substantial failure of

justice. The 1976 amendment brought about changes in this

relation, and now “the condition of finally deciding of lis and the proceedings

in the subordinate courts was introduced”46. The proviso to Section 115 (1)

laid down certain conditional requirements for the exercise of

revisional jurisdiction. The High Court’s power to revise the

order upon absolute failure of justice suo moto was retained,

however the nature of the proceeding was changed. Revisional

jurisdiction lied in situations where the order was not

appealable even prior to and post the amendments of 1976 and

1999. The 1976 amendment, however, puts a bar on the

revisional power of the High Court in case of appealable

orders, having appeals to the lower appellate courts or the

High Court.47

Section 115 of the CPC confers on the High Court the

supervisory powers over the Sub-ordinate Courts. It does not,45Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors.,AIR 2003 SC 2434.46Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors.,AIR 2003 SC 2434.47Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors.,AIR 2003 SC 2434.

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in any way, confer any right for revision on the litigant. The

power of the High Court under Section 115 is discretionary. An

essential question which needs to be determined before a

revision petition is said to be maintainable is that, “whether

the order in favour of the party applying for revision would have given finality to suit

or other proceeding”48, which if answered in affirmative, results

in the revision petition being maintainable. Thus, interim

orders cannot be revised under Section 115 of the CPC.49

CONCLUSION

In this paper, the researcher examined in depth the decision

of the Supreme Court in Major Khannav. Brigadier Dhillon. The paper

started off with a detailed discussion on the facts and

circumstances leading to the case, the contentions of the

parties, and the decisions of the District Court, High Court

and the Supreme Court. The Supreme Court in Major Khanna’s

case interpreted Section 115 of the CPC, and laid down the

meaning and ambit of the term “case decided” under it. The

early colonial practices were referred to by the Court to

elucidate the rationale behind the provision of powers or

revision to the High Court.

The researcher also examined the changes brought about by

the Code of Civil Procedure (Amendment) Act, 1976 and Code

of Civil Procedure (Amendment) Act, 1999 to Section 115 of

the CPC, and the meaning and significance of these changes.48Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors.,AIR 2003 SC 2434.49Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors.,AIR 2003 SC 2434.

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The examination of the trend of judicial decisions from Major

Khanna’s decision brings out clearly the fact that the

decision is a good law. This has been the case even after

two amendments were brought to the provision in 1976 and

1999.

BIBLIOGRAPHY

C.K. Takwani, CIVIL PROCEDURE, 5th edition (2004).

M. P. Jain, THE CODE OF CIVIL PROCEDURE, (2004).

Mulla, THE CODE OF CIVIL PROCEDURE, 16th edition, edited

by Solil Paul, Volume I, (2002).

S. Nandy, THE CODE OF CIVIL PROCEDURE, 1908 (1997).42 | P a g e

S.C. Sarkar and Prabhas C. Sarkar, THE LAW OF CIVIL

PROCEDURE, Volume I, edited by SudiptoSarkar, edn.,

20thedition (2005).

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