P L D 1964 (W (PLP)

ORTCHESON, J.‑The facts leading up to this reference are that Civil Revision No. 42 of 1960 came up for hearing in November 1960 before my learned brother Muhammad Yaqub All. In the course of arguments, his attention was drawn to the case Mst. Nur Jehan Begum v. Muhammad Ahsanullah (P L D 1960 Lah. 181), in which a learned Single Judge of this Court had held that the wrong placing of the onus of an issue amounted to a material irregularity in the exercise of jurisdiction within the meaning of section 115 of the Civil Procedure Code (hereinafter to be referred as the Code) and that a revision was, therefore, com petent. In the opinion of my learned brother this view constituted a departure from the rule laid down by a Bench of seven Judges of the Lahore High Court in Bibi Gurdevi v. Chaudhri Muhammad Bakhsh (A I R 1943 Lah. 65) and the dictum of their Lordships of the Privy Council in N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board (P L D 1949 P C 26), regarding the scope of the said section. He accordingly admitted the petition to a full hearing and referred the case to the learned Chief Justice to be placed before a larger Bench. As a result this Full Bench was constituted.

2. At the outset I find myself faced with a serious difficulty. A study of section 115 of the Code and of the numerous authorities in which attempts have been made to define its scope has, with the utmost respect to the seven learned Judges, led me to the conclusion that Bibi Gurdevi's case was wrongly decided, and that the view held by a previous Full Bench of five Judges in Lal Chand Mangal Sen v. Behari Lal Mehr Chand (I L R 5 Lah. 288), as well us in a number of other authorities, notably of the Allahabad High Court, that no revision lies from an interlocutory order, is correct.

3. The difficulty to which I have referred is that while on the one hand the decision in Bibi Gurdevi's case though not technically binding on this Court, is entitled to the greatest g respect, on the other the question involved in the present reference is substantially that of the interpretation of the expression "case decided", and I cannot in conscience answer that question otherwise than in accordance with my own personal opinion. I, therefore, consider it incumbent upon me to give my reason for holding that view.

4. Section 115 of the Code runs: "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 such order in the case as it thinks fit." The first spontaneous impression created in my mind by the opening words of the section was that the proceedings the record of which a High Court is competent to call thereunder, are no longer on the pending file of the subordinate Court. If it be assumed, even if only for the sake of argument, that this impression correctly represents the intention of the Legislature, the first question that arises is whether any good reason can be given why, instead of some clear and unambiguous word such as "suit", the controversial term "case" was employed.

5. The answer to the above question is clearly in the affirmative. The Code regulates the procedure of Civil Courts in relation not only to suits but also to other proceedings, for example, those under the Guardians and Wards Act, the Provincial Insolvency Act, and the Religious Endowments Act. If, therefore, the narrower term "suit" bad been used in section 115, the result would have been to deprive the High Court of the power of revision in such proceedings and thus to create an anomalous situation.

6. One argument that has found much favour with the learned Judges who are of the view that an appeal lies against interlocutory orders is the following, they point out that the word "case" is nowhere defined either in the Court or in the General Clauses Act, and contend applying one of the well known principles of the interpretation of statutes, that recourse must consequently be had to the dictionary meaning of the word. This argument, therefore, requires examination.

7. It is, of course, true that no definition of the word "case" is given in the Code, but there is a simple and adequate explanation for the omission. A study of the Code reveals that the word is used in several different senses, with the result that no single definition can be given. Since, however, the dictionary meaning of a word is itself a definition, any attempt to select one such meaning of the word "case" must create the same difficulties as arise in attempting to formulate a legislative definition.

8. The dictionary meaning adopted by the majority of the learned Judges who have sought to solve the question in this manner is "a state of facts juridically decided", but it is clear that this definition cannot be applied to all the uses of the word "case" found in the Code. To cite only one example, section 113 runs: "Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit." It is obvious that in the above section the proposed definition must break down. No doubt the "case" referred by the Court may be considered as "a state of facts", but the element of juridical decision is conspicuously lacking; that decision being left to the High Court.

9. In these circumstances, can it be considered a legitimate procedure to apply the same definition to the word as used in section 115 irrespective of the context? In my opinion it clearly cannot, the only safe guide to the true meaning being to examine how section 115 fits into the general scheme of the Code.

10. In this connection, the following observations of Shadi Lal, C. J., in Lal Chand's case may be cited with advantage : -- "The scheme of the Code shows that, while certain orders to which importance was attached by the Legislature are made appealable (these orders are enumerated in section 104 and Order XLIII, rule 1 of the Code), other orders not included in that list can be interfered with by a superior Court only on an appeal from a decree provided that they affect the decision of the case, vide section 105, Civil Procedure Code. It seems to be that the Legislature did not contemplate that an order made by a Court before the final judgment, from which no appeal is allowed, should be challenged on an application for revision, and that the trial of the suit should be delayed pending the disposal of that application."

11. The same point has been more elaborately developed by Piggott, J., in Budhu Lal v. Mewa Ram (I L R 43 All. 564), a Full Bench decision: "Firstly, in drafting the present Code of Civil Procedure, Act V of 1908, the Legislature seems to me to have dealt carefully and systematically with the question, how far a party to a suit, finding himself aggrieved by any order passed by the trial Court prior to the delivery of the final judgment, should be permitted to carry the matter before a higher tribunal without waiting for the decision of the suit. I would lay stress on the fact that, after section 104 of the Code has provided a right of appeal against a number of orders dealing with arbitrations or with the exercise of the punitive jurisdiction of the Courts, the last clause of this section relegates to the schedules the list of others against which a right of appeal is given. This leaves it open to the various High Courts to make additions to this list, without invoking the interference of the Legislature, if experience should suggest that any probable case of real hardship has been left un-provided for. The list of appealable orders, given in Order XLIII, rules 1 and 2, has been carefully drawn up, so much so that in a number of instances an appeal is given when the Court has decided a particular question in one sense, but not if the decision is the other way. My own opinion is that the list is an adequate one, and that the intention of the Legislature will best be carried out by refraining from interference with orders passed by subordinate Courts in the course of the trial of suits, while giving full effect to the provisions of section 105 of the Code of Civil Procedure by allowing the unsuccessful party to challenge in appeal from the final decree any order which has affected the decision of the case, that is to say, any order passed by the trial Court but for which the decision might have been other than it was. Secondly, I take a point which has a direct bearing on the particular question before us. The Legislature has definitely considered the possibility that some particular issue raised by the pleading in suit may be tried out and determined as a preliminary to the trial of the remaining issues. Indeed, under Order XIV, rule 2, of the Code the Court is bound to try first any issue or issues of law which arise upon the pleadings and are such that their determination may perhaps suffice to dispose of the `case, or any part thereof'. Yet no right of appeal is provided against an order which determines one or more of such preliminary issues. I think the Legislature was of opinion that the balance of convenience was, on the whole, in favour of leaving such findings to be contested on appeal from the final decree. I think it intended to exclude this Court's interference in revision by the use of the words `case which has been decided'. If this Court is of opinion that the balance of convenience is the other way, it can lay down rules prescribing a proper form of procedure and a right of appeal from all orders which determine preliminary issued in a suit. This would at any rate have the advantage of putting a preliminary issue on a point of jurisdiction on the same footing as a similar issue on a question, say of limitation, and of sending the case on appeal to the Court to which appeals from the trial Court ordinarily lie."

12. With great respect, I entirely, agree with the above reasoning, and am further of the opinion that it would be highly anomalous that an order which is not considered important enough to be appealable should yet be allowed to be interfered with in revision during the pendency of the suit.

13. Another aspect of the scheme of the Code which I have not seen discussed in any of the authorities that have come to my notice, but which in my opinion throws light on the scope of section 115, is the arrangement of the subject‑matter. An examination of the sections of the Code (we are not here concerned with the Orders) reveals, as might be expected, a logical sequence, which may be thus briefly summarised. After dis posing of certain preliminary matters (sections I to 8), the general jurisdiction of the Courts is laid down in sections 9 to 14, which state in what circumstances a suit is barred. The place of suing is next determined and the following sections deal with the manner of institution of suits and the issue of summonses to defendants and parties. The stage of a decree is reached in section

33. Part II of the Code deals with executions, Part III with incidental proceedings, Part IV with suits in particular cases, Part V with special proceedings and Part VI with supplemental proceedings. 14: So far the framers of the Code have proceeded on the assumption, theoretically possible but in practice highly improbable, that the proceedings in the trial and executing Courts will continue from beginning to end without interference by a superior Court. Parts VII and VIII of the Code deal with such interference, and the sequence is instructive. First come appeals from original decrees, dealt with in sections 96 to 103, and then follow appeals from orders (sections 104 to 106). Sections 107 and 108 contain general provisions relating to appeals while sections 109 to 112 deal with appeals to the King‑in‑Council (now to the Supreme Court). It is only after appeals of both kinds have been dealt with that the Core passes on in part V111 to reference, review and revision.

15. Consideration of the above scheme leads, in my opinion, to the conclusion that the right of revision only arises when the suit, or other proceeding not falling within the definition, has been decided by the subordinate Court but no appeal lies from its decision, the object being to correct any failure of justice in the decision of the suit or proceeding which the High Court would otherwise be powerless to remedy. In this connection it is important to note that section 105, which enables a party appealing from a decree to set forth as a ground of objection in his memorandum of appeal errors, defects, or irregularities in any order, limits the right so conferred to errors, etc., affecting the decision of the case. The fact that the Legislature did not in appealable cases allow interference by a superior Court with any non‑appealable order unless the decision of the case had been thereby affected forms an interesting parallel to the provision in section 21 that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless there has been a consequent failure of justice. It is not difficult to envisage errors, defects or irregularities which do not necessarily affect the decision of the case. For example, in spite of the burden of proof having been wrongly placed on a party, that party may still succeed. Again, a document may have been erroneously admitted or excluded from evidence without having any decisive effect on the result of the case.

16. In support of the view that a `revision lies from an interlocutory order the argument has been advanced that although the wording of section 622 of the old Code (Act XIV of 1882) had led to a conflict of decisions regarding its scope, the phraseology of section 115 of the present Code is substantially the same. If this contention were correct, the argument would be strong, since the inference might be drawn that the Legislature had tacitly accepted the interpretation placed on the section by some Courts, but a comparison of the old and the new sections shows that there are certain differences between them, and in this connection the following passage from the statement of objects and reasons relating to the present Code, published from page 179, Part V, of the Gazette of India, for the year 1907 is perhaps not irrelevant. The Special Committee remarked: "Speaking generally, it may be said that we have only departed from the phraseology of the Code where experience has suggested improvement or competent authority has called for some change. We have refrained from altering the wording merely because it might be capable of improvement ; for in any change, even of a verbal character, there is a risk of opening a door to fresh litigation."

17. The provisions of the present section 115 have been reproduced in paragraph 4 above. Section 622 of Act XIV of 1882, on the other hand, runs: "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 appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction sc vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, and may pass such order in the case as the High Court thinks fit." It is true that the words "by which the case was decided" occur ring in the above section are substantially the same as those used in section 115 of the present Code, but it will be seen that there has been a distinct change of emphasis. If the first twenty words of section 622 had stood alone, they would have covered a pend ing case, whereas in section 115 it is immediately made clear that the "case", the record of which is called by the High Court, must have been decided by the subordinate Court, and if, as shown in the passage from the report of the selected committee cited above, the framers of the present Code deliberately refrained from altering the wording merely because it might be capable of improvement above change of emphasis must be intentional. I am consequently unable to agree with the view that the verbal altera tions effected in section 115 of the present Code are without significance.

18. An important principle of the interpretation of statutes is that where there is doubt as to the intention of the Legislature, an interpretation which leads to manifest absurdity should, if possible, be avoided. The difficulty arising from the view that a right of revision lies against an interlocutory order has been, if I may say so with respect, very clearly set out by Bose, J. Naravan Sonaji Sagne v. Sheshrae Vithoba (A I R 1948 Nag. 258) in the following passage :‑ "(49) Next, consider the absurdly illogical conclusions which flow from such a practice. Consider first a question of limita tion or res judicata. If a Court proceeds to decide either or both of these questions as a preliminary issue and reaches the conclusion that the suit is not barred, according to the view under consideration a revision lies to the High Court. But if the Court reaches the other conclusion and dismiss the suit then an appeal lies to the lower appellate Court, and the matter cannot reach the High Court except by way of second appeal. In other words, if one side fails it has direct access to the High Court whereas its opponent fails on the same issue he has to go to a lower Court. The same sort of situation can arise on a question of amendment. (50) Then consider another anomaly. Revisions are heard by Single Judges whereas second appeals above a certain value are entertained by a bench of two Judges. In this very case I am asked to decide questions, sitting singly, which, in the normal course, would have been decided by a Division Bench. The anomaly is even greater in suits' above the value of Rs. 10,

000. The same point in the same litigation is decided by one Judge if one side loses and by two if the other side loses. Surely, any practice which leads to such absurdities is not only undesirable but must be radically wrong."

19. Another argument frequently advanced in favour of the view that interlocutory orders can be interfered with in revision is that the contrary view would lead to delay and hardship. In the ruling cited in the previous paragraph Bose, J. has given what I consider, with respect, to be a decisive reply. He observes:‑ "(51) Next consider the sheet anchor on which this practice is usually defended, namely, the shortening of litigation and the saving of costs and doing `justice'. (52) No statistics show that a large percentage of cases which reach this Court are in the end dismissed. I do not know the exact figure but I am told it is in the neighbourhood of 75 to 80 per cent. The exact figure does not matter but the percentage is large. I refer here to cases which are dismissed after being set down for hearing parties. I do not include in this those which are dismissed summarily. Therefore, what does this argument amount to in the end? In the majority of such cases the litigation is not shortened, on the contrary it is unduly prolonged and everybody's time and money are wasted. The result is that cases are admitted on this basis not in the hope of shortening litigation as a whole but in the sure knowledge that 75 per cent of litigants in this class of cases must be pena lised in the hope that 25 per cent will benefit, and that their litigation must be lengthened and not shortened. That hardly seems fair or just. (53) I am strongly of opinion that justice delayed is justice denied and hold the view that anything which can reasonably be done to shorten litigation as a whole should be done. I am clear that it was never the intention of the Legislature that cases should be tried piecemeal‑bits by this Court, bits by another and the rest by a third. The whole scheme is to vest certain Courts with jurisdiction to try certain classes of cases and to leave them to try it, and leave them to decide the matter right or wrong. After the matter is finally concluded by a decree then and only then, save in special cases, expressly provided for, can a higher Court entertain the question, and not even then if no appeal is allowed. (54) The High Court is given judicial superintendence over Courts subordinate to it but only for determining whether they are in fact vested with jurisdiction to try the issue in question and if so, to see whether the trial is proceeding in accordance with the usual and recognised forms of procedure. The revisional jurisdiction of the High Court does not, in my opinion, extend beyond that. (55) If it is legitimate to interfere on a question of amend ment then why is it not proper to interfere when a Judge allows or disallows a question during the examination of a witness, or when he rejects a document? Once the principle which I am contesting is conceded it will be almost impossible to draw the line and the High Court will be flooded with applications as is being attempted now, and, if logic is to have any place, the High Court will be bound virtually to try the bulk of the cases in the Province."

20. With reference to Bose, J.'s observation that statistics show that a large percentage of revisions which reach the High Court are in the end dismissed, it may as a matter of interest be mentioned here that in order to ascertain the position in this Court, I called for the figures relating to revision petitions admit ted to regular hearing from the 1st of April 1960 to the 31st of March 1961. As against twelve such petitions accepted, eighty- one were dismissed, the percentage of dismissal being thus eighty- seven. In view of these figures, I respectfully agree with the following observations of LeRossignol, J. in Lal Chand's case :‑ "De raris non curat lex and my own experience leads me to the conclusion that far more hardship would result and has resulted from the interference of superior Courts during the pendency of a suit than would have been caused had the superior Court stayed its hand till the suit had been finally decided."

21. It will be convenient at this stage to discuss some of the reasons advanced by the learned Judges in Bibi Gurdevi's case in support of their view. The leading judgment is that of Bhide, J. After giving the facts leading to the reference to the Full Bench he points out that it is well established that the words of statute, when there is a doubt about their meaning, are to be understood in the sense in which, in the words of Maxwell, "they best harmo nise with the subject and the object which the Legislature has in . . . . . . Their meaning is to be found not so much in strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion in which they are subject and the object to be attained" (Maxwell on Interpreta tion of Statutes 8th Edn. page 48). The learned Judge then cites another passage from Maxwell, which runs:‑ "Even if there be some room for doubt, such construction should be placed on a statute as shall suppress the mischief and advance the remedy, Therefore, even when the usual meaning of the language falls short of the whole object of the Legislature a more extended meaning may be attributed to the words if they are fairly susceptible of it."

22. With regard to the above quotations, I very respectfully agree with the principles enunciated therein, but it is obvious that before placing a particular construction on the words of statute, it is necessary first to be certain what subject and object the Legislature has in view, and what the mischief to be suppressed and the remedy to be advanced are. I may also respectfully point out that the first passage cited rather repels than supports the argument that the significance of the disputed expression "case" used in section 115 of the Code is to be found in its dictionary meaning. With regard to the second, the learned Judge tacitly assumes that the object of the Legislature in framing section 115 is to enable the superior Courts to revise interlocutory orders, which is the very point to be decided.

23. The learned Judge further rejects the arguments adopted in Lal Chand"s case and other authorities for example Paras Nath v. Ran Bahadur (A I R 1936 Oudh 22) that section 115 contemplates that the record of the "case which has been decided" should be sent for and hat this will not be possible until the whole suit or other proceeding has been decided. The argument in question is thus expressed by King, C. J., in Pares Nath's case:‑ "

2. It has been suggested that the record of the decided case (i.e., the record of the decision of the preliminary issue regarding the court‑fee) consists of that part of the record of the pending suit which relates to the decision on the question of court‑fee. A little reflection will. I think, show that it would be impossible to separate the so‑called record of the decided case from the record of the pending suit, and thus to send the record of the decided case while leaving the record of the pending suit in the trial Court. Should the whole plaint be sent? If so, the record of the pending suit will he deprived of its most essential and important document. Coming to the Written Statement, it is of course possible to cut out and send the paragraph raising the question regarding the court‑fee, but this isolated paragraph would not be of much value if there was nothing to show in what suit it had been filed, and by whom or on whose behalf it had been filed. Similar difficulties would arise in cutting out extracts from the record of oral pleadings and other parts of the record. It seems unnecessary to labour the point, as I think it is clear that there is no record of a `decided case' which could even be artificially constructed and sent to the High Court, as distinct from the record of the pending suit. The only record that could be sent is a record of the pending suit, and I think the High Court is clearly not authorised to send for the record of the pending suit under section

115. This seem: to me to support the view that the passing of an interlocutory order, or the decision of a preliminary issue which does not result in deciding the whole suit, is not the decision of n `case' within the meaning of section 115, because no record of such a decided case exists, or can be constructed, apart from the record of the pending suit." The answer given by Bhide, J., is: "I do not think there is much force in this contention. For, once it is held that the word `case' may mean a part of a suit there should be no great difficulty in holding that the section empowers the High Court to send for the record which con tains proceedings relating to the interlocutory order : Dhapi v. Ram Pershad 14 Cal. 768." With the utmost respect, the above observation of Bhide, J., again assumes the point to be proved. It is of course true that once the conclusion is reached that the High Court has power to interfere with interlocutory orders, there is no great difficulty in holding I'm they that the record of a pending suit can be sent for but the crux of the matter is that in determining the meaning of the disputed expression "case decided" regard must be had to all the factors involved, of which the difficulty of sending for the retard of a "case" until the suit has been decided is one. Moreover, it is to obvious to require reiteration that the cumulative effect of a number of arguments is consider ably greater than of each of them taken singly.

24. Bhide, J., further contends that the grave injustice resulting from the narrow interpretation placed on the word "case" in 5 Lah. 288 and 43 All. 564, was soon realized and that in both the Courts exceptions to the strict rule laid down in the Full Bench ruling were recognized on one ground or another, but as pointed out by Shadi Lal, C. J., in Lal Chand Mangal Sen's case hardship, however grave, should not influence the interpretation of a statute particularly since, as pointed out by the same learned Judge and by Piggott, J., it lies within the power of the High Court to and to the list of appealable orders enumerated in Order XLIII, rule 1, such further orders as may be considered sufficiently important to form the subject of an appeal before the final judgment. The above observation of Bhide. J., further leads striking support to the opinion of Shadi Lal, C. J , that the decision of the Judges in several cases were influenced by their desire to avoid the possibility of grave injustice which in their opinion might result from placing a strict interpretation upon the word "case" as used by the Legisla ture.

25. In support of his contention that the Allahabad High Court has departed from the strict rule laid down in Buddhu Lal v. Mewa Ram (I L R 43 All. 564), Bhide, J., cites the following observations of Sulaiman, C. J., in Gupta & Co. v. Kripa Ram Bros. (A I R 1934 All. 620) :‑ "Ordinarily, orders by the same Court from time to time during the trial of a suit would not be regarded as so many different `cases' decided by the Court, each of them being revisable under section 115, Civil P. C. But where the case is a proceeding which can be considered separate and distinct and is finally disposed of by an order which terminates it, it may well be considered to be a `case decided' although the suit has not in one sense been completely disposed of," With great respect, however, the fact that a proceeding com pletely separate and distinct from the suit itself can be considered a "case decided" (a view with which I respectfully agree) cannot possibly be pressed into service in support of the contention that an interlocutory order relating to the suit is open to interference in revision.

26. In support of his view, Bhide, J., refers to section 21, Civil Procedure Code, remarking: "According to section 21, Civil P. C., and section 11, Suits Valuation Act, an objection as to local or pecuniary jurisdic tion taken at the proper time in the trial Court but overruled by that Court can be considered by the appellate Court only if there has been a `consequential failure of justice, or the decision of the case on merits has been prejudicially affected." Should the trial Court then be allowed to proceed with a trial, if it has erroneously assumed, jurisdiction which it does not possess, when the error is patent and is also likely to cause `failure of justice or the decision on merits is likely to be prejudicially affected'? It would be obviously in the interest of justice to correct the error m such a case at once under section 115, Civil P. C." With the greatest respect, the above argument is based on an incomplete citation of the provisions of law involved, neither of which deals exclusively with appellate Courts as Bhide, J., appears to suggest. Section 21, Civil Procedure Code, runs: "No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice." Similarly subsection (4) of section 11 of the Suits Valuation Act lays down "The provisions of this section with respect to an appel late Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 622 of the Code of Civil Procedure or other enactment for the time being in force." Appellate and revisional Courts have, therefore, been placed on exactly the same footing, and if an appellate Court cannot entertain an objection relating to local or pecuniary jurisdiction unless there has been a consequent failure of justice, it is hard to see on what grounds such a power can be held to vest in a Court of revision. Far, therefore, from advancing the view of the learned Judge, the provisions of section 21 of the Code and section 11 of the Suits Valuation Act appear to me, with the greatest respect, to show clearly the intention of the Legislature that an interlocutory order, even though it relates to jurisdiction, should only be interfered with after the suit has been decided, it being obviously impossible until that stage is reached to tell whether there has in fact been a failure of justice. I may add that whether a particular order is "likely" to cause a failure of justice is a matter on which different Judges may hold different opinions, whereas the question of whether there has actually been such a failure is one on which a definite finding can be arrived at from the material on the record. It appears to me to be manifestly illogical that whereas if the suit proceeds to the stage of a decree, that decree mist in the absence of prejudice, be upheld in spite of the lack of territorial or pecuniary jurisdiction on the part of the Court, an objection as to the place of suing should be allowed to be entertained in revision during the pendency of the suit, and such inconsistency is not lightly to be attributed to the Legislature.

27. Another case cited by Bhide, J., in support of his view is Shiva Nathaji v. Joma Kashinath (I L R 7 Bom. 341), a Full Bench decision, in which certain broad propositions were laid down concerning the nature and limits of the jurisdiction conferred on High Court by section 622, Civil Procedure Code of 1882. According to Bhide, J., those propositions do not seem to recognise any restriction on the exercise of the power of revision during the pen dency of a suit by interference with interlocutory orders, but, as pointed out by the learned Judge, the Judges of the Full Bench were considering the extraordinary jurisdiction of the High Court not only under section 622, Civil Procedure Code, but also "other wise", e.g., under section 5 of Regulation 2 of 1827, and other provisions of law. The fact that the effect of other enactments was being considered along with that of section 622, Civil Procedure Code, clearly makes it impossible to hold that the power to interfere with interlocutory orders is conferred by section 622, alone. This is recognised by Bhide, J., but he goes on to observe that it appears that clause (c) of section 622, which is very wide was intended to confer upon the High Courts powers similar to those exercised by the High Court of Bombay under section 5 of Regulation 2 of 1827. In support of this contention he cites the following observations of the Select Committee on the Bill relating to Act XII of 1879, by which clause (c) was added to section 622 :‑ "We have extended section 622, as to the High Court's revisional jurisdiction, to cases in which the lower Court appears to have acted in the exercise of its jurisdiction illegally, or with material irregularity. The change is a serious one and must be understood as made tentatively. But the High Court of Bombay at present exercises such a juris diction under Bombay Regulation 2 of 1827, section 5, and both Sir Charles Turner and Innes, J., are of opinion that the change should be made." Bhide, J., then goes on to remark: "The exact interpretation of the language of clause (c) has been the subject of considerable conflict of judicial autho rity but it is unnecessary to go into that question here. Suffice it to say, that the language is very wide and would, prima facie, apply to interlocutory orders. If so, the power to call for the record of a suit even before its final decision to test the correctness of an interlocutory order must also be presumed to be conferred by the section." With the greatest respect, I am unable to accept the argument that because an additional power of interference has been con ferred on the High Courts by clause (c) the definition of "a case decided" is thereby altered. The position after the introduction of clause (c), as before that date, is that after calling for the record of a case decided by a subordinate Court the High Court has power to interfere if certain types of error have been com mitted, the only difference being that a new type of error has been added. Whereas previously the Court could only interfere in the circumstances set out in clauses (a) and (b), after the amendment the revisional power was extended to the errors covered by clause (c). There appears to me to be a close parallel between section 115 and section

105. Subsection (1) of the latter section, while conferring on the appellate Court the power of rectifying errors contained in non‑appealable orders, limits that power to orders affecting the decision of the case. If I may say so with respect, the wisdom of this provision is obvious. If the error, defect or irregularity in the interlocutory order has not affected the ultimate result of a case, any interference with that order at an earlier stage would have caused utterly un necessary and profitless delay in the decision of the suit or other proceeding, and in my opinion, this principle also applies to interlocutory orders in cases in which no appeal lies. Bhide J.'s view, on the other hand, appears to be that an erroneous inter locutory order should be immediately corrected even when that order is liable to be challenged in an appeal from the final decision. This is clearly shown by the following observations in his judgment :‑ "Even when an interlocutory order is liable to be challenged in an appeal from the final decision according to section 105, Civil P. C., or by a separate suit, the remedy may be too remote or cumbersome in the circumstances of a particular case to be of any practical value and in such cases also irreparable loss and gross injustice may result at times, if the erroneous order is not set right at once." As has been well said, however, "hard cases make bad law", and even if adherence to the procedure prescribed by section 105 of the Code may, in a few instances, cause hardship, there can be no doubt that the principle enunciated therein is beneficial to the great majority of litigants. Moreover, in view of the very heavy file pending in most, if not all, High Courts that the erroneous order will be rectified "at once" is, I fear, illusory. It is also, if I may say with respect, the duty of a Judge to admi nister the law as it is, not as he thinks it ought to be.

28. Another observation of the learned Judge with which I find myself reluctantly compelled to disagree is the following:‑ "Once it is held that the word `case' may be applied to any part of the suit which can be held to be distinct and separable from the issues normally arising in the suit, the view expressed in 5 Lah. 288 that the word `case' cannot be held to be applic able to a branch of the suit becomes untenable ; for, even if a part of the suit can be considered as distinct and separable from the normal issues, it is certainly a `branch' of the suit, and the Court is bound to decide it before reaching a final decision in the suit, in the same way as it must decide the other issues. I can see no ground or reason from the stand‑point of language why the word `case' should be held to be applicable to parts of the suit which fall within the description, but not to others." The above remark appears to be based on the observations of Sulaiman C. J. referred to in paragraph 25 above but if so, I am, with great respect, constrained to point out that Sulaiman C. J. was not speaking of proceedings which form part of the suit, but of proceedings which can be considered as entirely separate and distinct from the suit itself.

29. The suggestion put forward in 5 Lah. 288 that it is open to the High Court to extend the scrape of appealable orders by rules framed under section 122 of the Code did not find favour with Bhide J. on the grounds that it would be difficult to provide an. appeal for all possible cases where grave injustice may result, and that the remedy by way of appeal to a sub ordinate appellate Court is liable to far greater abuse and delay in the disposal of suits than the remedy by way of revision under section 115 of the Cods. In the opinion of the learned Judge the revisional power vesting in the High Court, being purely discretionary, will ordinarily be exercised only when there is risk of irreparable loss and consequent grave injustice and when there is either no other remedy at all or the remedy it too remote or cumbersome to be of any practical value. He further considered that as the revisional power is vested in the High Court only, it may be expected to be exercised by experienced Judges with due care and caution. In my opinion, a decisive answer to this optimistic view is provided by the fact to which I have already referred, namely, that no fewer than eighty seven per cent of the revisions filed in this Court over a period of one year were ultimately dismissed after being admitted to a regular hearing. Moreover, the fact that the Judges of a High Court may be ex pected to be more experienced than subordinate appellate Courts cannot, if I may say so with the utmost respect, be allowed to form the basis of a departure from the course provided by the Legislature. Such an attitude is only too likely to lead to the danger, pointed out in more than one authority, that the High Court may find itself deciding an appeal in the guise of a revision.

30. Towards the end of his exhaustive judgment Bhide, J. remarks: "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a `case' for the purpose of section 115, Civil P. C., is to be deduced not from the meaning of the word `case', but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section." With the utmost respect, however, it appears to me that it is only when the meaning of the expression "case decided" has been determined that any conclusion can be arrived at as to the proper scope and limits of the High Court's revisional jurisdic tion.

31. In spite of the observation cited in the previous para graph, the learned Judge has attempted a definition of the word "case", namely, "I would accordingly hold that from the stand point of language alone, the word "case" is wide enough to include decision on any matter in controversy affecting the rights of the parties to a suit. This interpretation is supported by the dictionary meaning of the word, by the sense in which it is used in some other sections of the Code itself and by the rule of interpretation which requires that a beneficial construction should be placed upon the provisions of statute, when this appears to be consonant with its object." He recognised that this interpretation is extremely wide, but was of the opinion that it will not lead to inconvenience in practice as the field of interlocutory orders, subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction. I have already given reasons for holding that this optimism is in practice unfounded. The problem of what constitutes "a substantial question of controversy between the parties" is by no means always an easy one to solve, and it appears to me that this wide interpretation of the word may leaf in tile majority of cases to protracted and perhaps unprofitable argument.

32. The practical difficulty likely to be experienced in applying the criterion proposed by Bhide J. is further emphasized by the following observations of Dalip Singh, J. in the same case :‑‑ "I find it, however, impossible to evolve a formula which will draw a clear, hard and fast line between those orders which do not amount to the decision of a `case' and orders which do amount to the decision of a `case'. To a certain extent it may be true that whether a `point' decided is also a `case' decided depends on the facts and circumstances of each case." No doubt, the learned Judge goes on to remark that the mere fact that a formula cannot be evolved which will draw a clear line between orders which are cases decided and orders which are not cases decided does not prove that such a line does not exist, but with the utmost respect I fail to see what advantage can be derived from the knowledge that the line exists if it is not possible to draw it.

33. Beckett, J., while holding in Bibi Gurdevi's case that the particular order before the Court was open to revision, ex pressed himself on the general question involved as follows :‑ "It seems to me that the decision of a case necessarily imports the idea of some final order. When the rest of the language used in section 115 is so carefully guarded, I cannot see why it should have been thought necessary to provide that a case should have been `decided' before a High Court could send for the record in order to see whether the sub ordinate Court had committed an error of jurisdiction, if it was meant that the High Court might send for the records of any case in which the subordinate Court had wrongly decided some matter of jurisdiction before it. In coming to the view that some restriction must have been intended, I cannot but be influenced by the fact that five Judges of this Court came to a unanimous conclusion in 5 Lah. 288 that a definite limit has been imposed, though I feel myself constrained to differ with all respect as to the extent of the limit‑a difference which may possibly arise from the different nature of the case which then came up for consideration, inasmuch as some of the learned Judges then constituting the Full Bench seem to have taken a different view when a different set of facts came before them. As regards the exact extent of the limit, I agree with Dalip Singh, J., that it would not be practicable to attempt to lay down any hard and fast line of decision."

34. To sum up, I am, for the reasons given above, firmly though respectfully of the opinion that the expression " case decided" as used in section 115 of the Code means, where the proceedings under consideration is a suit, the whole suit and not any part thereof, and that a non‑appealable interlocutory order was not intended by the Legislature to be open to revision till after the decision of the suit.

35. Even if, however, the definition of the disputed expression which found favour with the learned Judges in Bibi Gurdevi's case be accepted, it appears to me to be clear that before any inter locutory order can be termed "a case decided" that order must contain some element of finality. Those orders which, as Dalip Singh J. expressed it, "merely endeavour to collect the materials in order to decide the case, "for example, an order placing the burden of proof on a particular party or admitting or rejecting a document, cannot fall within the definition. Further than this I find it impossible to go, and the fact that no learned Judge, however, eminent, has found it possible to draw any hard and fast line between those orders which are revisable and those which are not, while others have arrived at diametrically opposite conclusions with regard to the same orders, is sufficient to deter me from making any attempt to venture on this uncharted sea.

36. My own view of the matter, therefore, is that an order admitting or rejecting a document is not open to revision and that the petition on the basis of which this reference has been made merits dismissal, but having regard to the very great im portance of the general question involved, namely, what is "a case decided" within the meaning of section 115, C. P. C., I consider that it should be more authoritatively settled. My learned brothers are of the same opinion and I accordingly direct that the case be laid before his Lordship the Chief Justice for nomination, should he think fit, of a larger Bench, preferably of nine Judges. BASHIR AHMED, J.‑In view of the fact that two of my brothers agree that the law on the subject be reviewed, though with great respect I do not find myself in agreement with the view ex pressed, I join with them in the recommendation that the case be placed before a larger Bench. K. B. A. Order accordingly.