1989 PLP 2983 (MLD)

The petitioners filed appeal against the above judgment. The learned Additional District Judge, held that bill No.179 (Ext.7) was prepared fraudulently and the respondent had purchased only 3 pairs of shoes and the appellants forged the false bill for 1002 pairs of shoes. The learned Additional District Judge held that the suit was rightly dismissed by the trial Court. The petitioners are aggrieved by these judgments and decree and have come to this Court in revision. Mr. Syed Inayat Ali learned counsel for the respondents has raised a preliminary objection that no revision lies in this case. He contends that the case is not covered by Section 115, C.P.C. as the Courts below have neither exercised the jurisdiction not vested in them by law nor have failed to exercise the jurisdiction so vested in them nor have in any way acted in the exercise of their jurisdiction illegally or with material irregularity. After hearing the learned counsel for the parties, I am of the opinion that the preliminary objection must prevail and the revision be dismissed in limine. The leading decisions on the question of the scope of section 115, C.P.C; are two cases decided by their lordships of the: Privy Council reported in AIR 1949 PC 1956; PLD 1949 PC 26 and AIR 1949 PC 239; PLD 1949 PC

114. Their lordships in these cases reiterated the views expressed in ILR.II Cal.6 and AIR 1917 PC.71 that section 115, C.P.C. applies to jurisdiction alone the regular 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 no question of jurisdiction is involved. In the present case the only question for determination before the Courts below was whether the petitioners supplied three pairs of shoes or 1002 pairs of shoes to the respondents as per bill No.179 dated 24-5-1970 (E.xl,7),Prima facie the objections are covered by the authoritative pronouncements but Mr. Salim Karamally learned counsel for the petitioners has contended that the Court!: below, have committed an illegality or material irregularity in the exercise of their jurisdiction. He has argued that the Courts below in exercising jurisdiction have misread the evidence. The answer to this question is available in Joy Chand Lai Babu's case AIR 1949 PC

239. Their lordships at page 242 observed:- "There have been a very large number of decisions of Indian High Courts on 5.115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of 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 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 sub-s. (b), and sub-s. (c) can be ignored. The case of Babu Ram v. Munna Lal, 49 ALL.454; AIR (14) 1927 ALL.358 and Hari Bhikaji v. Naro Vishvanath, 9 Bom. 432, may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is in the view of the High Court), in the one case on a point of limitation and in the other on a question of resjudicata, invested itself with a 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 Court below found that Ext.7 was prepared for only three pairs of shoes but the petitioners had made it for 1002 pairs of shoes. This is obviously question of fact and on this question the two Courts below whose competency in the matter has not been questioned have recorded concurrent findings to the effect that genuineness of the bill was not proved and Ext.7 was prepared for only three pairs of shoes. These findings of fact in the absence of illegality or material irregularity cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 115 C.P.C. It has been urged on behalf of the petitioners that the findings suffer from material irregularity inasmuch as the learned lower Courts have failed to consider the written statement, and the compromise application filed in Suit No.1032 of 1972. On the face of it, this plea appears to be weighty but when analysed in depth it transpires that direct and best evidence was required to be produced by the petitioners to prove that the respondents had placed an order for 1002 pairs of delivery voucher, duplicate and triplicate of bill, account books, registers had not been produced lay them. They have failed to produce the person who prepared the bill. In the light of the above observations it cannot justifiably be said that the findings of fact on the question of genuineness of Ext.7 suffer from any illegality or material irregularity. In the circumstances and for the facts and reasons mentioned above. I find no reason to interfence. As such this revision petition is dismissed in limine. In the circumstances of the case, the parties shall bear their own costs. H.B.T./A-564/K Revision dismissed