P L D 1952 Sind 34 (PLP)

CONSTANTINE, J.‑We have before us an application entitled under section 115, Civil P. C., in which the applicant seeks revision of an order of our learned brother Agha, J., adding a defendant in a suit in which the applicant is the original defendant, and in which the opponent is the plaintiff. A preliminary objection has been raised that section 115 Civil P. C. confers no power upon this Court to revise the decision of a single judge of this Court. The origin of section 115 of the Code lies in section 35 of Act 23 of 1861 whereby Sudder Courts were empowered to call for the records of any cases decided in appeal by the Subordinate Court and in which no further appeal lay to the Sudder Court when the Subordinate Court appeared to have exercised a jurisdiction not vested in it. In the Code of 1877, section 622 was enacted in the following words :‑ "The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided . . . ." (the rest of the section is in the same words as section 115 of the Code of 1908). The Sind Courts Act was enacted in 1926 to consolidate the law relating to the Courts in Sind. The relevant part of, the Act is divided into three sections. The first deals with the Chief Court, the second with the District Courts and the third with the Subordinate Court. Sections 8, 9, 11, 14 and 17 are the sections chiefly relevant, and are as follows :‑ (civil and criminal jurisdiction of chief court.) "

8. The Chief Court shall be the highest Civil Court of appeal and revision and the highest Court of criminal appeal and revision for Sind and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi. (civil jurisdiction in Karachi district)

9. The Chief Court shall be the Court of appeal from all decrees and orders passed by subordinate Courts in the civil district of Karachi from which an appeal lies under any law for the time being in force. (Delegation of powers to members of Court: Full Bench) 11. (1) Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rules to provide in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. (2) The Chief Court may make rules, declaring what number of Judges, not being less than‑three, shall constitute a full Bench of the Chief Court, and may by these rules prescribe the mode of determining which Judges shall sit as a full Bench, when a full breach sitting becomes necessary. (3) Subject to the provisions of subsection (2), the Chief Judge may determine which judge in each case shall sit alone and which judges of the Chief Court shall constitute any bench. (Appeal from original Civil jurisdiction of Chief Court.) 14. (1) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree or from any order against which an appeal is permitted by any law for the time being in force made by a single judge of the Chief Court, shall lie to a Bench consisting of two other judges of the Chief Court (Appeal from appellate Civil Jurisdiction of a Single Judge) (2) Except as otherwise provided by any enactment for the time being in force an appeal from any late decree made by a single judge of the Chief Court shall lie to a Bench consisting of two other judges of the Chief Court, if the judge who made the decree declares that the case is a fit one for appeal. (Superintendence and control of other Courts,)

17. The general 'superintendence, direction and control over all Courts subject to its appellate jurisdiction shall be vested in the Chief Court." The opponent's main contention is that in section 115 Civil P. C. the words "any Court subordinate to such High Court" have no reference to a single judge of this Court. The applicant contends that since appeals are provided for from a single judge of this Court to a Bench of judges, a single judge must be held to be a Court subordinate to the Chief Court within the meaning of section

115. The opponent has produced a series of rulings beginning with in re : Premji Trikumdas 17 Bom. 514, where Sergeant, C. J., delivered the judgment of a Division Bench. It was there held that the words in section 622 "the Court by which the case was decided" had no reference to the High Court, and hence an order of a single Judge of a High Court was not subject to revision. In Debendra Nath Das v. Dibudhendra Man Singh, 43 Cal. 90, Sir Lawrence Jenkins with whom Chatterjea, J., concurred, stated : " And here I may point out that a judge sitting alone is not a Court subordinate to a High Court, but performs a function directed to be performed by the High Court (clause 36, Letters Patent), and thus no decision of a single Judge can be revised under section 115 of the Code." It is true that those remarks appear to be obiter but they are the remarks of an eminent Judge, and are certainly consistent with the point decided that where a Bench of the High Court in a Letters Patent Appeal reverses the appellate decision of a single judge and affirms the decision of the lower Court, for the purposes of section 110 C. P. C. the only effective judgment of the High Court is that of the Bench. In Hyat Muhammad v. Shaikh Mannu and others, A I R 1927 Cal. 290, Rankin, C.J. with whom Ghose, J. agreed held that the High Court had no power to transfer a suit from the original side of the High Court under section 23 C. P. C. He stated " I decline altogether to hold that a learned judge of the Original Side is a Court subordinate to the High Court. He is the High Court ..'. In Biseni Bhuwan Raj Kuer v. Minor son of Madho Singly A I R 1927 Oudh 59, it was held that a single Judge of the Chief Court was not a Court subordinate to the Chief Court, and hence an application in revision against the order of a single Judge was not entertainable under section 115 Civil Procedure Code. In that case an order had been passed by a single judge refusing to sanction a compromise in a suit pend ing before him in the original jurisdiction of the Chief Court. This case was followed in two other later decisions of the same Court, Mirza Muhammad Sadiq Ali Khan v. Kazim Ali Khan and others A I R 1935 Oudh 72, and in 2"h. Dwarka Nath Singh and others v. Thakurani Raj Rani and others, A I R 1945 Oudh

54. In addition Thadani J., sitting alone in In the matter of Muhammad Osman Sumro A I R 1948 Sind 89 held that a single judge of a High Court is not subordinate to a High Court. We agree with those decisions. As Wazir Hassan, J., stated in Biseni's case : " ..jurisdiction is conferred on the Court as a whole and not on any particular judge or class of Judges of the same Court." So also in Jamna v. A. M. Suba pathy 36 Mad. 138: " The High Court is one Court by whom soever the jurisdiction of the Court may be exercised, whether by a single judge or by a Bench." Mr. Fateh Chand conceded that he knew of no authority opposed to the above decisions. It is true that there are many cases that one of the tests to determine whether a Court is subordinate to a High Court is whether an appeal ordinarily lies from that Court to the High Court, but that is a different question from the point here involved, whether a single judge of the Chief Court can be held to be a Court subordinate to the Chief Court. Mr. Fatehchand relied upon the previous practice of this Court, but it appears that this point was never raised before. Mr. Fatehchand also contended that revisional jurisdiction is a necessary concomitant of appellate powers on the strength of Chappan v. Moidin Kutti, 22 Mad.

68. There a single Judge had passed an order in revision under section 622, and the question was whether a Letters Patent appeal lay. It was held by a majority that a judgment passed in revision was a judgment passed in the Court's appellate jurisdiction. It is clear that this case has no application to the present question. There the question was the interpretation of section 13 of the High Court Act, and section 36 of the Letters Patent of 1866. Here, however, the Chief Court's powers in appeal are regulated by section 14 of the Sind Court's Act, and its powers of revision are regulated by section 115 of the Code of Civil Procedure, and it would be incorrect to state that the Chief Court as an appellate Court is empowered to pass orders in revision without fulfilment of the conditions necessary for the exercise of its Powers of revision. The second point arising in this application turns upon section 17 of the Sind Courts Act. Mr. Fatehchand contended that even if this Court was not empowered under section 115 C. P. C. yet it was empowered under section 17 of the Sind Courts Act to exercise judicial control over all Courts sub ordinate to its appellate authority. This section is adapted from section 15 of the Charter Act (24 and 25 Victoria) which was reproduced in section 107 of the Government of India Act, 1915, which in turn was repro duced with well‑known modification in section 224 of the Government of India Act, 1935, and it may be noted that the words " all Courts subject to its appellate jurisdiction " have been used in all these sections. There is no doubt that before the enactment of section 224 of the Government of India Act, 1935, this provision conferred not merely administrative control, but judicial control (whatever may have been its limits over Courts subject to the appellate jurisdiction of the High Courts. There is, however, no case in the books showing that any High Court exercised control over a single judge of that Court under this provision. We are, it is true, barred from referring to the marginal notes either of section 17 of the Sind Courts Act or section 15 of the Charter Act, but the reason for the use of the expression " subject to its appellate jurisdiction " was to obtain a more precise definition than would have been given by the sole word " subordinate" which was used in the corresponding section of Act XXIII of 1861 relating to the Sudder Courts, and the further contents of section 15 of the Charter Act, and of section 107 Government of India Act, in particular regarding calling for returns, indicate that the Courts referred to were other than the High Court. The result is that the application must be dismissed with costs on the ground that the decision of a single Judge of this Court is not subject to revision by this Court under section 115 Civil P. C. or under section 17 of the Sind Courts Act. TYABJI, C. J.‑I agree that neither section 115 of the Civil Procedure Code nor section 17 of the Sind Courts Act (Bombay Act VII of 1926) confers on a bench of two or more judges of this Court the power to revise an order passed by a single judge while exercising the civil jurisdiction of this Court. Mr. Thakurdas argued very strenuously that the Court of a single Judge of this Court could in no case be regarded as subordinate to the Court of a Bench of two or more judges of this Court because both Courts, as was unquestionably the case, performed functions which under the law had to be performed by this Court. But this is clearly incorrect and contrary to plain fact. The decisions of a single judge are undoubtedly decisions of a Court subordinate to that constituted by a, Bench by reason of the fact that appeals from the decisions of a single Judge lie to a Bench. The real question before us however is, do section 115 of the C. P. C. and section 17 of the Sind Courts Act, confer on an appellate Bench of this Court the power to revise a decision of a single judge ? This question must be answered by an examination of the terms of these two sections, by considering their plain grammatical meaning. The relevant part of section 115 of the Civil Procedure Code is 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 ...the High Court may make such order as it thinks fit." Clearly the power is conferred on the High Court, not on any part or section of the High Court. The decisions which the High Court may revise under this section must clearly and necessarily be the decisions of others, subordinate to the High Court, from which appeals lie to the High Court. The power conferred may be, and of course often is, exercised by a single Judge of the High Court. The Court of a single judge of the High Court, though subordinate to an appellate bench of the High Court, is still clearly always the High Court subor dinate to the High Court. If it had been intended to confer on an appellate Bench of the High Court, the power to revise decisions of single judges of the High Court, it would clearly have been necessary either to add a supplementary clause to section 115, or to use different words, expressly conferring such a power, which has not been conferred by the terms as they now stand. It was this aspect of the matter which was emphasised in the observations made by Jenkins, C. J., Rankin C. J., and Wazir Hassan, J., which my learned brother has already cited in his judgment. It is equally clear that section 17 of the Sind Courts Act also does not help the applicant. It is as follows :‑ "The general superintendence, direction and control over all Courts subject to its appellate jurisdiction shall be vested in the Chief Court." It is true that the words, " The general superinten dence, direction and control " include not only administrative but also judicial powers, and are wide enough to cover powers of revision, if such powers are shown to exist. Mr. Fatehchand argues that the words themselves confer a power of revision. The section however only states that such powers " shall be vested in the Chief Court". Having regard to the fact that the powers which this Court may exercise in appeals and by way of revision are contained in the specific provisions of the Civil Procedure Code and the rules made thereunder, I think those provisions must be regarded as complete and exhaustive. I do not think that the section 17, which is in very general terms, and does not confer any particular powers in specific And express terms, can be construed as conferring any further powers exerciseable by way of revision. The rule of construc tion, generalia specialibus non.‑derogant, must I think be applied. But, quite apart from this, it appears to me to be quite clear that section 17 also, like section 115 of the C P. C. does not confer on any part or section of the Chief Court any powers whatever over another part or section of the Court. The power mentioned therefore is conferred on the Chief Court, and is exerciseable only over decisions of other Courts subordinate to the Chief Court., It was argued before us that as the power conferred by the terms of section 17 was exerciseable "over all Courts subject to its appellate jurisdiction", and as the Court of a single Judge was necessarily subject to the appellate jurisdic tion exerciseable by a Bench of the Chief Court, the power conferred could be exercised by a Bench of the Chief Court in revising decisions of a single judge. But here again the terms used in the section make it quite clear, I think that the power conferred was not to be exercised by one part, a bench, over another part of the same Court but by the Chief Court over Courts subordinate to it. There is nothing in this section to show that the power could be exercised over any part of the Chief Court. Further, the use of the word 'superintendence' is very significant. Let us consider .the administrative powers conferred by this section. There can be no doubt whatever that the power of administrating its own affairs is vested in the Chief Court, but it is quite clear that that power is not conferred by this section. When the Chief Court exercises its purely administrative powers over the Chief Court itself, it clearly administers and does not `superintend'. The use of the word `superintend' necessarily implies that while the administration was to be done by the subordinate Court, the Chief Court was empowered to superintend that administration. The Courts "subject to its appellate jurisdiction "referred to in section 17 are therefore necessarily Courts subordinate to the Chief Court. Mr. Fatehchand emphasised that as a matter of fact revision applications against orders and decisions of single judges have in the past always been regarded as entertainable under section 115 of the Civil Procedure Code without any question. Their legality has never hitherto been challenged in this Court on the ground now raised before us. He also emphasised, what is obvious, that if it be held that no such revision applications lie, that must in certain cases lead to grave miscarriages of justice. This is, however, a matter for the Legislature, and unless and until the law is altered we are bound to administer it as we find it. A. H. Application dismissed.