P L D 1959 (W (PLP)

Date of hearing : 26-1-1959. This is a petition for revision of the order of Mr. C. M. Shafqat, Senior Civil Judge, Montgomery, dated the 10th of March 1958, holding that the relief of specific perform ance prayed by the plaintiff-petitioner is incompetent.

2. The facts as given by the learned Senior Civil Judge are as follows :- "The plaintiff alleges that defendants 1 and 2 agreed to sell certain land to him and executed the deed Exh. P. 1, having received Rs. 8,500 in cash, that the balance of Rs. 5,000 was to be paid at the time of the mutation of the land, that the plaintiff was always ready and willing to perform his part of the contract and also gave registered notices dated 20-6-57, in this behalf, but that defendants 1 and 2 returned the notice and sold the land to defendants 3 to 5 by a registered deed on 28-7-57. It is alleged that according to the terms of the agree ment either the specific performance of the contract be granted or the money paid be returned along with Rs. 5,000 penalty as agreed upon." "All the defendants in a joint written statement denied the execution of the deed and contended that in any case it is inadmissible in evidence because (sic) unregistered anti that a suit in specific performance cannot proceed." 3 The learned Senior Civil Judge exhibited the deed in dispute as Exh. P. 1 for what he described as "the purpose of construction". After analysing the contents he held : "On a view of the whole deed I am clearly of the opinion that this document is a sale deed and a suit in specific performance is incompetent".

4. The first question for decision is whether a revision under section 115, Civil Procedure Code, lies. Although, in paragraph 1 of the grounds of revision, the petitioner half-heartedly alleged that the learned Senior Civil Judge had failed to exercise a jurisdiction vested in him by law, paragraph 2 makes it clear that the real position taken up by the petitioner is that the learned Senior Civil Judge acted illegally or with material irregularity in the exercise of the jurisdiction vested in him by law. In support of his case he has cited two Single Bench decisions of this Court, Doda Shah v. Lal (A I R 1930 Lah. 572 (1)) and Imam Din v. Bhag Singh (A I R 1936 Lah. 746), in which it was held by Jai Lal, J., that a revision is competent where the trial Court has omitted to apply an obvious principle of law, but with the greatest respect I am unable to subscribe to this view, since, if followed to its logical conclusion, it would result in making every) 4 decision based on an erroneous view of the law open to revision. In Doda Shah v. Lai the so-called illegality or material irregularity consists in the fact that although it was for the defendant to prove want of consideration, when deciding the case the Courts below proceeded on the assumption that it was for the plaintiff to prove affirmatively that consideration in respect of the bond had been paid by him ; in other words, in the opinion of the learned Judge a wrong placing of the burden of proof amounts to an illegality or a material irregularity. Similarly, in Imam Din v. Bhag Singh the learned Judge remarks:-- "The-present suit is based on a covenant contained in the sale deed executed by Bhag Singh in favour of Imam Din that the house is free from encumbrance, and on the discovery of the existence of an encumbrance it is clear that there has been a breach of that covenant. The existence of such a covenant and its subsequent breach necessarily involves the party who has entered into the covenant to indemnify the other party to the contract. It is not legally necessary that there should be an express condition in the sale deed on the part of the seller to indemnify the purchaser in case any defect in his title is subsequently discovered. A covenant guaranteeing the non existence of encumbrances necessarily implies such a condition of indemnity. It is next contended for the respondent that the suit is premature. In the first instance this objection was not taken in the trial Court and secondly in a suit instituted by Haveli Ram for recovery of the money due to him under the mortgage a decree has been granted and to that suit Bhag Singh, Abdulla and Imam Din were parties. It is therefore clear that Imam Din has been indemnified and is entitled to be compensated for his loss by his seller who guaranteed a title to him free from encumbrances." The judgment does not mention any other alleged illegality or material irregularity on the part of the Courts below, and it is therefore clear that in holding that "the Senior Subordinate Judge has omitted to apply an obvious principle of law and has acted illegally in the exercise of his jurisdiction" he was referring to the errors enumerated above. This again shows that in the view of the learned Judge an erroneous decision on a point of law is sufficient to throw a case open to revision.

5. The view expressed above is contrary to that held by their Lordships of the Privy Council in the well-known case Amir Hassan Khan v. Sheo Bakhsh Singh (I L R 11 Cal. 6) in which it was held that a Court that has decided a suit over which it has jurisdiction cannot, only on the ground that it has arrived at a wrong decision, be said to have exercised its jurisdiction illegally, or with material irregularity, within the meaning of section 622 of Act X of 1877, as amended by section 92 of Act XXII of 1879 (the above provisions correspond to section 115 of the present Code). I am also, with great respect, in full agreement with the view expressed by Vivian Bose J. in Devidas Maroti Boke v. Niikanthrao Deshmukh (A I R 1936 Nag. 157) namely, that jurisdiction is -ntirely independent of the manner of its exercise. The former involves the power to act at all, and is independent of the decision reached in the exercise of that power. The following remark is particularly helpful :- "It (the illegality or material irregularity) must be something independent of the decision itself ; an irregularity or illegality in the manner of arriving at it, not in the conclusion reached. A good working test would appear to be this : if the decision had been the other way, would the illegality still be there ? If not, the flaw' must lie in the decision, and not in the manner in which it is reached. Consequently it would not be revisable. It is possible this test would not work in every case. But where it does, it would seem to be decisive." In the present case also the learned Senior Civil Judge had full jurisdiction to decide the question of whether a suit for specific performance lay, and even if his decision on this point be erroneous in law, this Court cannot interfere in revision. The petition is accordingly dismissed. A. H. Petition dismissed.