P L D 1961 Dacca 412 (PLP)

AKBAR, J.‑The facts are as follows : On 17‑11‑56, the plaintiff, River Steam Navigation Co. Ltd., filed a suit against defendant No.

1. The Commissioners for the Port of Chittagong, and defendant No. 2, Mohamed Islam, claiming Rs. 1,81,229‑12‑9 as damages. Their case was that their motor vessel "Teesta" was moored alongside Jetty No. 5 in the Chittagong Port. Due to negligent manoeuvering and careless handling of the steam tug "Khalid" by defendant No. 2, the said tug collided with "Teesta" causing damage to her. The owner of the tug, namely, the Commissioners for the Port of Chittagong was made defendant No. I in the suit .

2. The defendants filed separate written statements denying their liability for the damages claimed by the plaintiff‑company

3. On 10‑8‑59, when the suit was taken up for hearing, three petitions, two on behalf of the plaintiff and one on behalf of defendant No. 1, were filed in the Court. In the first petition, the plaintiff prayed for framing the following additional issue. "Was the collision due to an inevitable accident ?" In the Second petition which was filed under rule 3, order XVIII of the Civil Procedure Code; the plaintiff company asked for an. order from the Court directing the defendants to prove that they were not to be blamed for the collision and: that the plaintiff would be entitled to give evidence in rebuttal of the evidence adduced by the defendants.

4. In the third petition .the defendant No. 1 prayed that the issue No. 1, namely, "Is the suit barred as against the defendant No. 1 by section 111 of the Chittagong Port Act, 191.4", may be tried as a preliminary issue.

5. The learned Subordinate Judge by one order dismissed the two petitions of the plaintiff company and allowed the petition of the defendant No. 1.

6. The plaintiff company is challenging the propriety of the said order in this revision petition.

7. Mr. Haider Mota, the learned counsel for the petitioner has contended that, on the pleadings in the suit, the learned Subordinate Judge should have framed the additional issue, namely. "Whether the collision was due to an inevitable accident." The case disclosed in the plaint was that due to negligent manoeuvering and careless handling of the defendant No. 2 the Port Commissioners' tug `Khalid' collided with the plaintiff's motor vessel "Teesta" which was moored alongside jetty No. 5 of Chittagong Port.

8. The defence is substantially an argumentative traverse of the truth of the plaintiff's story and cannot be taken to be an admission of any of the plaint allegations constituting negligence on their part. The trial Court framed the following four issues "(1) Is the suit as against the defendant No. 1 barred under provisions of subsections (i) and (ii) of section 111 of the Chittagong Port Act, 1914 ? (2) Was the Motor vessel "Teesta" belonging to the plaintiff rammed on 21‑5‑56, by the steam tug "Khalid" belong to the defendant No. 1 in the circumstances as alleged in the plaint ? (3) Is the plaintiff entitled to recover compensation from the defendants for the damage caused to the vessel "Teesta" and for the consequent loss suffered by the plaintiff as alleged and to what extent, if any ? (4) What relief, if any, the plaintiff is entitled to ?

9. Rule 1, Order XIV of the Civil Procedure Code lays down that the issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are defined in this rule as propositions which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Issues are framed from all or any of the materials mentioned under rule 3 of that order.

10. The only material proposition of fact in the present case is : whether the collision took place due to negligence of defen dant No. 2 ? The plaintiff's case is that this collision was due to, negligence of defendant No. 2 and the defendant denied the said fact. Hence these are the material facts, that is to say the facta probantia on which the party pleading relies for their claim or defence. Now the facts by means of which the above are to be proved are called facta probantia. That a collision took place between "Teesta" and "Khalid" is a material fact, but the facts stated to show how, the collision took place are only evidence. On that evidence the Court may come to the conclusion. that the collision was not due to the negligence of any one but due to an inevitable accident. Hence an issue was rightly framed on the question of negligence on which one party based his claim and the other party denied it. The learned Subordinate judge, therefore, rightly refused to frame the additional issue, namely, "whether the collision was due to an inevitable accident ?"

11. The next question is : Did the learned Subordinate Judge commit an error in not asking the defendant to prove first that they were not to blame for the collision ?

12. Rule 1 of Order XVIII of the Civil Procedure Code provides that the plaintiff has a right to begin unless the defendant admits the facts as alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case `the defendant has the right to begin. Now the provisions of rule 3 of Order XVIII are subject to the provisions of rule

1. Whether the plaintiff should lead evidence or the defendant, is to be determined in accordance with rule

1. This rule 3 is applied where there are several issues, the burden of proving some of which lies on the other party. It is true that the defendant had admitted the collision but it cannot be said that he admitted that the accident was due to his negligence. On the issues, as framed, the plaintiff is to prove, firstly, that the collision was due to the negligence of the defendant, and, secondly, that they were entitled to recover damages and if so the quantum of damages.

13. Here the following passage from Ameer Ali's Commen tary on Order XVIII may be profitably quoted ; "When the issue raised by the Court is in substance whether the plaintiff's or the defendant's story is true, it is possible that either of the stories may be true. The question then arises which of the two alternative issues is the material one. So, the real material one is the first of the issues‑Is the plaintiff's story true ?" The Court has before it two alternative stories as to the manner in which the collision took place. In such a situation it would clearly be the duty of the plaintiff to prove in the first instance that his story is true. Hence, in our opinion, the learned Judge has rightly held that the provisions of rule 3 of Order XVIII were not attracted to this case.

14. Now, I take up the third question, namely, whether the learned Subordinate Judge was justified in deciding that the issue No. 1 be tried as a preliminary issue ? Mr. Mustafa, the learned counsel for the Port Commissioners, has raised an objection as to the competency of the High Court to interfere in revision under section 115 of the Civil Procedure Code with the said order in view of the pronouncement of the Privy Council in the case of N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments, Board, Madras (AIR 1949PC156:PLD 1949PC26).

15. In the above case the District Judge had held, on a construction of the will of the Testator, that the temple in dispute was a private one and that the appellants were not bound by certain order of the respondents: The High Court, in revision, set aside the judgment of the District Judge because it considered that he had made a serious mistake in construing the Will and the High Court seemed to have thought that a serious mistake of law could be corrected in revision. They took the view that the construction put upon the Will by the District Judge involves such material misuse of jurisdiction as to require interference by the High Court.

16. The Privy Council, after referring to the trend of decisions in India that section 115 was intended to authorise the High Court to interfere and correct gross and palpable errors of Subordinate Courts as to prevent gross injustice in non‑appealable cases, disapproved of the view and observed‑at page 158 : "Their Lordships can see no justification for any such view ; it would indeed be difficult to formulate any standard by which the degree of error of Subordinate Courts could be measured. Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters (a), That the order of the Subordinate Court is within its jurisdiction ; (b) That the case is one in which the Court ought to exercise jurisdiction ; and (c). That in exercising jurisdiction the Court has not acted illegally that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusions of the Subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without justification."

17. In the case of Joy Chand Lal Babu v. Kamalkshn Choudhury and others ((1949)1DLR46PC : PLD1949PC114), which was decided by the Privy Council about two months after Venkatagiri Ayyanger's case, their Lord ships again dealt with the High Court's power under section 115 of the Civil Procedure Code. The material point in that case was whether the loan which was the basis of the suit was a commercial loan. The Subordinate Judge held that the loan was a commercial loan within the meaning of the Bengal Money Lenders Act and a debtor was not entitled to any relief under that Act. He, therefore, dismissed the application. The High Court held, disagreeing with the learned Subordinate Judge, that the loan was not a commercial loan and, therefore, interfered in revision.

18. Their Lordships of the Privy Council accepted the contentions of the learned counsel for the appellant (1) that a Subordinate Court does not act illegally or with material irregularity because it decides wrongly a matter within its competence. and (2) that the District Judge had jurisdiction to decide that loan was a commercial loan and in so doing he did not act illegally or with material irregularity ‑and that the High Court had no power to interfere in revision merely because it disagreed with his decision.

19. Their Lordships then pointed out : " . . . . . the learned Subordinate Judge, having held that this was a commercial loan, was bound to go on to consider what effect that decision had upon the respondents' application, and, since the Act in terms does not apply to commercial loans, the learned Judge was bound, upon his finding, to' dismiss the application without determining whether or not the. respondents brought themselves within sections 30 and 36 of the Act as they claimed to do. In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, be refused to exercise jurisdiction vested in him by law, and it was open to the High Court to act in revision under subsection (b) of section 115." Their Lordships further observed : "Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a Subordinate Court does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under section (c), nevertheless, if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested in it by law, or failing .to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (c) can be ignored."

20. There may be some difficulty in reconciling the decisions of Venkatagiri Ayyanger's case and Joy Chand's case. From the observations of the Privy Council in Joy Chand's case, I am however, inclined to take the view that it is the duty of the High Court to interfere when the discretion has not been exercised by the Subordinate Court according to judicial principles. I may further point out that refusal to exercise revisional jurisdiction by the High Court when the trial Court has declined to try a preliminary issue on a point of law might give rise to the gravest hardship for the party injured who has no right of appeal and a refusal to exercise jurisdiction would mean that the Subordinate Judge's unfettered discretion might cause hardship to the injured party. It is true that rule 2 of Order XIV vests a large measure of discretion in the Trial Court but it must be remembered that this discretion must be exercised in accordance with the established principles of justice and not arbitrarily or capriciously or without factual basis. Furthermore, discretion of the Trial Courts does not extend to permitting them to ignore or transgress limitations on their powers. The string of decided case make it clear that c if the High Court comes to the conclusion that the Subordinate Court has not exercised its discretion judicially and in accordance with the judicial precedents, it is at liberty to interfere under section 115 of the Civil Procedure Code. I am further of opinion that thin Court has jurisdiction to revise an order from which no appeal lies to the High Court also upon the well known principle "Boni Judicis est Ampliare Jurisdictionem."

21. Here I may point out that there are a string of cases which indicate that the High Court has power to interfere with an order made under rule 2 of Order XIV in the exercise of its power under section

115. It will not be out of place to observe that in a number of cases it has also been held that the word "case" in section 115 is wide enough to include interlocutory order passed in a suit and, therefore, the High Court has the power to interfere in revision with such order : See Liladhar v. Firm Radhakishan Ramsahaya and others (A I R 1946 Nag. 5), Bibi Gurdevi v. Chaudhri Muhammad Baksh and others (A I R 1943 Lah. 65 (F B)), Teja Singh and others v. Hamir Singh and others (A I R 1952 Papsu 31) and Shree Narain v. Kishnlal and others (A I R 1952 Raj. 15). In agreement with the above decisions, I hold that an order allowing an issue to be tried as a preliminary issue is revisable by the High Court.

22. Now I deal with the question : whether the learned Judge was justified in deciding that issue No. 1 should be tried as a preliminary issue? Rule 2 of Order XIV of the Civil Procedure Code provides : "Where issues both of law and of fact arise in the same shit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only it shall try those issues first and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined." This rule is mandatory, though before trying the issue of law as a preliminary issue, the Court has to be convinced that that is an issue on which the whole case can .be dismissed. The learned Subordinate Judge seems to be satisfied that there is an issue of law in this case which can be decided as a preliminary issue and the only ground which is given in his order for acceding to the prayer of defendant No. 1 for deciding the issue of law as a preliminary issue is "that this issue in bar is a fit one to be heard as a preliminary issue." He further says " . . . . when the defendant whose witnesses are more numerous suggests this course of hearing this issue as preliminary issue which should have been adopted but for the oversight of all concerned should be adopted." The order of the learned Subordinate Judge, however, does not show that, on the decision' of this issue, the fate of the entire suit will depend. Mr. Mustafa, the learned counsel for the defendant opposite‑party, has also failed to satisfy us on this point. Hence the learned Judge was not justified in ordering that issue No. l should be tried as a preliminary issue.

23. No doubt, rule 2 Order XIV has been laid down for the purpose of preventing the injustice of a party being able to force his opponent to go at great length into evidence when the simple decision on a point of law might render the investigation of the facts unnecessary. In short, where issues of law which go to the root of the whole case and capable of being decided without evidence arise, the Court should decide those issues first. I have however already observed that on the decision of this issue alone, the whole case cannot be dismissed.

24. Further the proviso to section 111 of the Chittagong Port Act, 1914 lays down : "that nothing in this section shall protect the Commissioners from a suit in respect of any negli gence or default on their part." Hence, while deciding issue No. 1 the Court has got to go into evidence to decide whether there was negligence or default on the part of the Commissioners. In other words; this issue No.1 raised mixed questions of fact and law and hence cannot be decided as a preliminary issue.

25. In this connection, I may also point out that the Privy Council has pointed out repeatedly that the lower Courts should pronounce their opinion on all important points as fragmentary decisions of the case are most inconvenient and tend to delay the administration of justice : See Gohind Ram and another v. Chuni Lal and others (A I R 1930 Lah. 221), Mohammad Sulaiman v. Kumar Birendra Chandra Singha and others (A I R 1922 P C 405) and Jagannath Rao Dani v. Rambharosa and another (A I R 1933 P C 33).

26. For the reasons stated above, we are of the opinion that the learned Judge, by holding that‑ issue No. 1 should be tried as a preliminary issue, does not appear to have exercised his discretion according to well‑established rules of law but in an arbitrary and capricious manner. It seems to us, therefore, that a clear duty devolves on us to interfere at this stage.

27. In the result, this application is allowed in part and the order of the Court below that issue No. 1 be tried as a preliminary issue is set aside. The rule is made absolute to the extent indicated above. As the success is divided, we make no order as to the costs of the application. ASIR, J.‑I agree. K. B. A. Rule made absolute.