P L D 1964 (W (PLP)

MANZUR QADIR, C. J.

‑The point referred to us for decision is whether the powers under section 115 of the Code of Civil Procedure are intended to be exercised only in respect of a final order at the conclusion of the trial of the whole matter in controversy between the parties or are available also in respect of other orders made at intermediate stages in the course of the trial.

2. The provision empowering the High Court to call for the record of a "case", and to pass such orders as it might think fit, if the Court by which the "case" was decided appeared to have A conducted itself in certain specified ways, seems to have been introduced in this sub‑continent for the first time in the year 1877. A controversy entering round the meaning of the words "case" and "decided" began soon afterwards. According to one view, "case" meant the whole matter in dispute between the parties, and "decided" meant the final disposal of the whole matter. According to the other view, "case" meant any matter in controversy between the parties, and "decided" meant no more than the decision of that particular matter. A very large number of learned Judges, many of whom were men of great eminence, took part on one side or the other in these forensic contests. The Code was revised and re‑enacted in 1882. The language in respect of matters in controversy was left untouched, and the battle continued. The Code was re‑enacted with very substantial changes in 1908. Section 622 of the old Act, containing the powers with which we are dealing, being among those effected. Previously it was not expressly stated that the Court, the record of a case decided by which could be sent for by the High Court, must be subordinate to the High Court. That condition was then inserted, necessitating certain changes in the arrangement of different parts of the section. The two crucial words "case" and "decided" were, however, again left untouched and section 115 in its present form replaced the earlier section. In 1924‑25, a Civil Justice Committee was appointed. It took note of the conflict with regard to the interpretation of section 115 in the following words :‑‑ "The main difference of opinion on the question is as to whether interlocutory orders are intended to be covered by it or whether the intention is that after the whole case has been disposed of by a Court, the High Court should then and then only have the right to interfere in revision . . . The way in which this section is interpreted and applied varies very widely between one High Court and another and between one Judge and another." No attempt, however, was made to resolve the conflict by legis lative intervention and the difference of opinion has gone on unabeted till today.

3. The fact that for more than 80 years so many learned and eminent Judges have not been able to agree as to the meaning of the word "case" and the word "decided" as used in section 115, Civil Procedure Code, indicates that the original intention of the Legislature in using these two words is not clear, while the further fact that the Legislature itself has not attempted to resolve the difference of opinion, points to certain inherent difficulties in the subject itself. A perusal of the case‑law brings out clearly that on the interpretation of the words "case" and "decided" in the context of section 115, there is so much to be said on both sides, that it is unlikely that any fresh consideration can now be found either for the one view or for the other, which might be conclusive.

4. The state of the case‑law on this point has resulted in a great deal of confusion. High Court after High Court has referred this matter to Full Bench after Full Bench in the hope of discovering the true intent of the Legislature. Very few of those Full Benches were able to give unanimous decisions. Even when they did some Judge or the other in the same Court doubted whether the true intent of the Legislature had been captured by l~ the decision of the Full Bench and asked for a fresh reference. Judges who took one view at one time have been persuaded to the opposite view at other times. The attempts at finding the true: meaning of the Legislature have not resulted in any agreement or uniform decision. The point in dispute does not appear to have been directly raised before the Privy Council, or, after the g abolition of its jurisdiction, before the Federal Court or the Supreme Court.

5. What then is the duty of this Court ? It seems clear that the duty of this Court, in these circumstances, is to avoid further confusion as far as possible, and to adopt firmly that meaning of the provision which, consistent with the language, is most beneficial.

6. The central idea, the dominant aspect and the controlling consideration underlying section 115, is that the High Court must always be in a position to ensure that the Courts Subordinate to it do not exceed their jurisdiction, do not decline their juris diction, and while acting in the exercise of their jurisdiction do not act in a manner contrary to law or in a manner not warranted by law and capable of prejudicing the case of one party or the other. In the words of their Lordships of the Privy Council :‑ ". . . (Section 115) applies to jurisdiction alone, the irregular exercise or non‑exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which question of jurisdiction is not involved." (44 I A 261) If a Court has jurisdiction to decide a matter whether of fact or of law, it has the jurisdiction to decide it one way or the other, and the fact that a superior Court is of the opinion that the decision arrived at by the Court below is incorrect, does not mean that that decision is without jurisdiction. When however, the point on which the erroneous decision has been given is itself a point which affects the Court's capacity to entertain the case or to proceed further with it, the erroneous decision, if acted upon, would result either in the illegal assumption of jurisdiction or the illegal refusal to exercise it. Again in the words of the Privy Council " . . . 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 subsection (c), nevertheless if the erroneous decision results in the Subordinate Court's exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b) and subsection (c) can be ignored. The cases of Baburam v. Munna Lal 49 All. 454 and Hari Vikarji v. Viswanath 9 Born. 432 may be mentioned as cases in which the Subordinate Court by its own erroneous decision (erroneous within the view of the High Court), in the one case on the point of limitation, and in the other in the case of res judicata invested itself with jurisdiction, which in law it did not possess, and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result." The existence or the non‑existence of jurisdiction or the illegal or irregular exercise of jurisdiction are matters entirely apart from the merits of the claim. These matters relate to, how, where and by whom the merits of a cause are to be tried, and not with those merits themselves. They determine the forum and the mode of the trial, and regulate the steps that must be taken in order to, conduct the trial in accordance with law. If a step that is not in accordance with law is taken must it be allowed to remain effective and must further proceedings continue on its basis till the final decision is reached if, in the end, that final decision would have to be set aside for the reason that that step was taken illegally ? Should it not be declared a nullity as soon as it is taken? It seems illogical that something which has no existence in law should be allowed to support legal proceedings till they reach their infructuous conclusion and, after the whole edifice has been raised on a legally non‑existent foundation, to declare that the edifice is non‑existent because its foundation was never there.

7. Our procedural law is derived from the law of England, in England, errors of jurisdiction are immediately rectifiable. Not only are they immediately rectifiable but certain kind of objections as to jurisdiction are not allowed to be raised at subsequent stages if the party that could have objected on the ground of lack of jurisdiction, did not attempt to stop the further course of the proceedings when it knew that they were without jurisdiction. Should it not be assumed that that which has been found beneficial in England, would be found to be beneficial also in relation to our law, which is based on the law of England.

8. In the case reported as Umed Mal v. Chand Mal (53 I A 271), the Privy Council upheld an order under section 115 in the following circumstances : A suit had been brought in relation to some mortgaged property. The main question was whether the mortgagor had included certain disputed properties in the mortgage‑deed. The mortgagor had not been impleaded as a party and the question had been decided as between the parties that were before the Court. The Court of the Chief Commissioner of Ajmer, (which for the purposes of section 115 is included in the term "High Court") without distinctly dealing with the point, entertained the proceedings for revision. The Privy Council said this "The Suit was one in which the plaintiffs claimed the bighas under a mortgage from Mst. Fatima. They asked for a declara tion of title and for possession, and justice required that they should have made Fatima a defendant. The main question was whether she had included the bighas in the mortgage deed. In their Lordships' view it is far from clear that under the terms of the deed she did. There are suits of a class in which a decree of this kind may possibly be made in the absence of the mortgagor for what it is worth. But their Lordships are of the opinion that the present is not a suit of such a class. The very question is whether Fatima ever conveyed the bighas to the alleged mortgagees and it was a material irregularity to decide it in the absence of Fatima herself." In the above case the matter had gone up to the High Court after the conclusion of the whole cause and the Privy Council was dealing with it on that footing Hypothetically, however, one may ask the question what the Privy Council would have done had the same point‑namely, the non joinder of the mort gagor as a party‑been taken to the Privy Council before the final conclusion of the matter. The report shows that the suit was commenced in 1910. The appeal before the Privy Council was heard in 1926, i.e. 16 years later. Suppose that an earlier stage‑say in 1911 or 1912‑one party or the other had made an application that the mortgagor be impleaded as a party, and that application had been refused. Suppose further that the party whose applica tion had been refused had gone up to the High Court and the High Court had taken the view that though the mortgagor was a necessary party, yet the High Court had no jurisdiction to interfere at that stage, and that the cause must proceed to its final conclusion before interference in revision could take place. Finally, suppose that from that decision of the High Court the case had been taken to the Privy Council by special leave. Is there any thing in this judgment which would warrant the view that the Privy Council would have said that that which they regarded as a serious irregularity in the exercise of jurisdiction must con tinue until the trial had come to its own conclusion and only then, would the High Court be lawfully competent to say that something different should have been done ? It would seem anomalous if this should have to be so.

9. It is, however, said that for reasons of public policy, in, order that the larger and greater inconvenience of interruption of proceedings in the lower Courts be avoided, illegal steps taken in the course of the trial must await the final outcome of the trial before they can be corrected. It is further said that the Legislature intended that the scope of section 115, Civil Procedure Code, should be restricted to the final decision of the whole cause, for this reason. It is, of course, true that it is extremely impor tant, for reasons of public policy, that proceedings in lower Courts should not be interrupted unnecessarily. If they are, the whole course of the administration of justice is deflected. Since the interruption of a trial means a stay of proceedings, the in convenience to the party against whose interest the stay operates, is great. Frequently, the whole substance of the relief is negatived because of postponement, adjournment or stay. It is also true that section 115 of the Code of Civil Procedure is resorted to by litigants who wish to prolong proceedings. But it must be borne in mind that, the decision to entertain. or not to entertain, a motion under section 115 of the Code of Civil Procedure is that of the Judge. The desire on the part of litigants to press into service a procedural provision of which they can take advantage, is something which is intelligible though not excusable. The Court, however, is not a helpless creature at the mercy of the litigants. It is the obligation and the function of the Court to be the master of its procedure and its determination. It is necessary, therefore, to examine how it has come, about that the Courts have felt themselves helpless to prevent the indiscriminate use of the powers given to them under section 115.

10. It seems that the first reason is a notion lurking in the background that section 115 confers a power even where an appeal does not lie, to see that justice is done, and injustice pre vented from being perpetrated. Though this notion does not seem to have been fully expressed by any Judge, a large number of decisions under section 115 are intelligible only on the assump tion that the learned Judges who decided those cases felt so overwhelmed by the obvious justice or injustice of a cause that it seemed to them wholly and utterly anomalous that they should helplessly stand by and watch a decision which seemed to them palpably erroneous, being allowed to take legal effect.

11. Section 115 of the Code of Civil Procedure does not concern itself directly with justice or injustice. It is not a power to substitute what appears to the revisional Court to be correct view of the merits of a case‑whether legal or factual‑for a view of the merits of the case that appears to it to be erroneous. Section 115 is not concerned with these matters. It is, on the contrary, concerned only with the exercise of jurisdiction. If no jurisdiction that is not vested is exercised ; if no jurisdiction that is vested is declined and if in the exercise of a jurisdiction that is vested, no one has acted illegally or with material irregularity, the question of using powers under section 115 does not arise, however gross an error of law or fact might have been committed in the determination of the merits of the claim and however grave the injustice might be. The converse is not always true. The word used in the opening part of section 115 is "may". The Court is not bound to act under that section, though it is hard to imagine cases falling under clause (a) and the first part of clause (c) in which the Court, on being satisfied that a jurisdiction not vested is being exercised, or that illegal action is being taken in the exercise of jurisdiction, will still refrain from exercising its powers under section

115. With reference to (b) and the second part of (c), however, there is no difficulty in thinking of examples where a Court, in spite of being satisfied regarding the failure to exercise a jurisdiction which is vested, or the grossness of an irregularity of the procedure adopted in the exercise of jurisdiction, would still refrain from exercising its powers under section

115. In such cases, if the Court is of the opinion that no injustice has been done or is likely to be done, it may refuse to act under section

115. The idea of justice is thus relevant to the pro vision of section 115 only as an additional factor affecting the discretion of the Court. Nor does the concluding portion of section 115 "the High Court may make such order in the case as thinks fit", enlarge the discretion of the Court. In the context, it does not mean that the Court has the discretion to disregard the provisions of clauses (a), (b) and (c) or to go beyond the limits laid down in those clauses, but only that the discretion is restricted to the field covered by those clauses. The Court has a discretion to refuse relief in spite of the conditions mentioned in clause (a), (b) or (c) being present, but it has no jurisdiction to grant relief, unless the conditions mentioned in clauses (a), (b) or (c) are present however just it may be to grant relief in any particular case. If this distinction is clearly borne in mind, many of the situations in which the High Court is tempted to interfere with the proceedings of the lower Courts in revision will be dealt with satisfactorily.

12. Another reason for undue interference with trials apparently is that an impression appears to prevail, and is reflected in some of the decided cases, that when the High Court acts under section 115 it is incumbent upon it to send for the record of the case. Sending for the record operates as an automatic stay, and it is that which interferes with the pro ceedings of the Courts below. If the proceedings are not stayed, the pendency of an application for revision in the High Court in most cases would have no appreciable effect on the proceedings in the lower Court. While it is possible to read the whole context to mean that when the High Court decides to act under section 115, it must send for the record and that the word "may" only indicates that the High Court is not obliged to act under section 115, there seems to be no compelling reason why the words should not mean that the High Court has a discretion to call for the record or not to call for the record even when it decides to exercise its jurisdiction under section

115. As a matter F of practice it seems unnecessary that the original record should be called for in every case that is entertained. It would obviously, depend upon the nature of the point involved. There would be some points which can best be ascertained from the original record. There would be other points which can be ascertained equally from certified copies. There might be still other points which it may be possible to conclude on affidavits or on the admissions of the parties without any certified copy being produced.

13. Still another cause of avoidable interference is that an order granting a stay of proceedings is sometimes allowed to operate indefinitely. It frequently happens that an ex parte interim order of stay is given at the time when the motion is made. A notice is then sent to the opposite‑party in respect of the stay application alone. At the hearing a prolonged debate takes place as to whether the interim stay should or should not be confirmed. The decision of that question requires, in most cases, that merits of the case be gone into, if not completely and fully, at least to an appreciable extent. After the elaborate debate, only the question of confirmation of the interim stay is decided. The main case normally comes up for hearing much later and frequently before another Judge. The whole cause is then reheard. It is clear that the argument in the presence of both the parties at the time of the determination of the question of stay alone should, as far as possible be eliminated. If, each time that a situation of this kind arises, an attempt is made to hear the cause itself instead of the stay application alone a more satisfactory, speedy and less wasteful conclusion of the cause will be achieved.

14. The interference with the progress of cases in subordi nate Courts may thus be eliminated or at least considerably minimized. If this is achieved, the main argument for thinking that the scope of section 115 was intended to be confined to the stage at which the whole cause had been finally deter mined would no longer have the force that it seems to have today.

15. To construe the provisions of section 115 so as to enable the High Court to correct errors of the kind mentioned in clauses (a), (b) and (c), as and when4hey occur, has three other reasons to commend it.

16. First.‑

The opinion of the majority of the learned Judges who have dealt with this matter, and the opinion of the majority of the High Courts in the Sub‑continent, has been that the word "case" as used in section 115 is intended to cover "any state of facts juridically considered", and not necessarily the whole cause or matter in dispute. Regarding exercise of jurisdiction by the High Courts in the territories now forming Pakistan, the position is this. In 1943, overruling an earlier view of 1924, a Full Bench of seven Judges of the High Court of Lahore, expressed the opinion, without any note of dissent, that the word "case" did include steps in aid of the determination of the controversy, in addition to the whole controversy itself. The High Court of Dacca, following the uniform view which the predecessor of that Court before Parti tion (namely the High Court of Fort William), has been of the same opinion. In the Chief Court of Sind, differing from an earlier view of Khuda Bux v. Panjo (A I R 1930 Sind 265) the same view at Lahore was adopted in Dassumal Bulchand v. Kundanmal Choithram (A I R 1946 Sind 36). The Court of the Judicial Commissioner of the N.‑W. F. P. expressed the same view in Bhai Rwan Singh v. Mst. Mahboob Jan (A I R 1944 Pesh. 1). It seems, therefore, that the only view which has held the field so far in Pakistan is that the word "case" has to be read in a wide and not a restricted sense. That being the existing state of the law, is there a compelling reason why it should be departed from now ?

17. Secondly.‑In the case reported as Hanover Fire Insurance Co. v. Muralidhar Banechand (P L D 1958 S C (Pak.) 138), and Levant Shipping Co. v. Pakistan (P L D 1960 S C 341), the High Court bad entertained application under section 115 of the Code of Civil Procedure from orders which related only to steps in aid, and not to the final disposal of the whole matter in controversy, and the Supreme Court dealt with the orders of the High Court on the footing that those orders were not made without jurisdiction. Indeed in one of those two cases, Hanover Fire Insurance Co. v. Muralidhar Benechand, the High Court had declined to interfere, but the Supreme Court, reversing the decision of the High Court, gave a decision which had the effect of directing the trial Court to proceed in a given manner.

18. Lastly.‑The learned Judges who have held that the word "case" when used in relation to a suit must be confined to the suit or other proceeding itself and must not be regarded as applicable to any part of that suit or to any branch of that suit, have found it necessary to draw a distinction between the suit proper which concerns the claim in dispute and those other connected proceedings which relate to matters other than the claim itself. 1f the emphasis on jurisdiction i.e., the capacity of the Court to act in the manner in which it is acting, as distinct from the decision that it arrives at, on the merits of the case, is steadily and constantly kept in view, most of the difficulties to overcome which that distinction is drawn, are automatically resolved and the need for drawing a distinction between one proceeding connected with the suit and calling it a case, and another proceeding connected with the suit and refusing to call it a case, largely disappears.

19. The position with reference to section 115 may thus b summarized in the following proposition :‑ (i) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision, (a) has exercised or assumed a jurisdiction not vested in it by law, or (b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or (c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or (d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has I given to one party an advantage over the other which it would not have got but for the fact that that step was taken. (ii) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal. (iii) When a complaint is made to the High Court that a Court subordinate to it has acted in any of the four ways men tioned in the first proposition and the High Court is of the opinion that the Court appears to have acted as complained, it may send for the record relevant for the purpose of ascertaining whether the complaint is correct or not, but is not bound to send for the record, if it can satisfactorily ascertain by other means the facts necessary for a decision of the point raised.

20. It seems appropriate to take this opportunity to state clearly a few guiding rules of practice which are liable to be overlooked when dealing with particular cases :‑ (a) Interruption of pending proceedings should be avoided as far as possible. If it is found necessary to stay proceedings, the case should be disposed of as a whole, instead of first having a full dress debate on the question of stay only. (b) Since the power conferred by section 115, Civil Procedure Code, is meant for correcting errors made by subordinate Courts in relation to be existence or the exercise of their jurisdiction, no occasion arises to exercise it in relation to a matter which is within the discretion or authority of the subordinate Court concerned. This power should, therefore, never be exercised so as to usurp the discretion or authority of a subordinate Court. The reference is answered accordingly. M. YAQUB ALI, J.‑I agree. INAMULLAH, J.‑I agree. WAHIDUDDIN AHMAD, J.‑I agree. QADEERUDDIN AHMAD, J.‑I agree. MUHAMMAD DAUD KHAN, J.‑‑I agree. [Announced in open Court on the 16th day of September 1963.] ORTCHESON, J.

‑I have had the privilege of perusing the judgment proposed to be delivered by His Lordship the Chief Justice, but I greatly regret that I find myself unable to depart from the view expressed in the referring order in Civil Revision No. 289 of 1960 Muhammad Ahsan Ullah Khan etc. v. Muhammad Sami Ullah Khan etc. (P L D 1964 Lah.101) I should, however, like to offer the following brief observations.

2. While I respectfully agree that the greater emphasis laid on the expression "case decided" in section 115 of the present Code as compared with section 622 of the Code of 1882 may be largely, if not wholly, accounted for by the necessity of recasting the latter section to make it clear that the revisional powers of the High Court can be exercised only over Courts subordinate to it, h I am still, with the utmost respect, of the opinion that if the Legislature which framed the 1908 Code had wished to make it clear that interlocutory orders were to be revisable, there would have been no difficulty in finding a suitable form of words. The section might, for instance have opened thus "The High Court may call for the record of any case pending before, or decided by, any Court subordinate to such High Court and . . . . . ."

3. The Legislature must, therefore, it seems to me, have been fully aware that the effect of leaving section 622 of the 1882 Code substantially unaltered must necessarily be that the conflict of judi cial opinion over the interpretation of the disputed expression "case decided" would remain unresolved, and the question at once arises why such a non‑committal attitude was adopted. If conjecture be permitted I find it not altogether unreasonable to suppose that since there was no insurmountable difficulty of draftsmanship, the answer may lie in the fact that the Legislature was not fully con vinced of the wisdom of expressing itself unequivocally in favour of allowing interference by the High Court at the interlocutory stage. I must add, with all due respect, that if such misgivings existed, they can by no means be said to have been groundless.

4. It also still appears to me that to consider the disputed expression as including an interlocutory order is to place an unnatural and artificial interpretation on the words of the section. In this connection, attention may be invited to Order XIV, rule 2, of the Code, which runs:‑ "Where issues both of law and of fact arises in the same suit, 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." There can, I think, be no two opinions on the point that in the above rule at least "case" means the whole suit, while, on the other hand, I have been unable to find any provision in the Code where the word is used in the restricted sense of a step in aid.

5. The learned Chief Justice has referred to the notion, not fully expressed by any Judge, but lurking in the background, that justice must be done and injustice prevented, even if this involves going beyond the limits of section 115. 1 respectfully agree that many judgments are only explainable on this basis, but there appears to me, if I may say so with respect, to be a possibility that some at least of the learned Judges who have favored the majority view may have been influenced by the feeling that, what ever the intention of the Legislature, the High Court should not be compelled to stand helplessly by and allow proceedings that are vitiated by a defect of jurisdiction to reach the final stage before having the power to interfere. I find it, however, by no means inconceiveable that after weighing one consideration against another, the Legislature which framed the 1882 Code arrived at the conclusion that balance of convenience lay in only allowing such interference when the suit or other proceeding had been finally decided.

6. On the other hand, I am aware that the reasons I have given for holding the view expressed in the referring order have appeared inclusive to the majority of the learned Judges who have dealt with the matter and it is with very real regret that I have laid myself open to a possible charge of presumption. I may add, however, that with great respect, I fully agree with the measures proposed by the learned Chief Justice to prevent misunderstanding and misuse of section 115 of the Code at the interlocutory stage. A. H. Reference answered.