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Revisional Application No. 168 of 1957, decided on 19th November 1959.

Revision‑Not competent from decision of issue on applicability of S. 80, C. P. C., or of Ss. 31 and 45, Sind Court of Wards Act (I of 1905).

Held, that the Subordinate Court by holding that a notice under section 80, C. P. C. was not necessary and the provisions of sections 31 and 45 of the Sind Court of Wards Act were not applicable to the facts of the case did not in any way commit any illegality or material irregularity in the exercise of its jurisdiction and therefore revision under section 115, C. P. C. was not competent.

The paramount consideration in such cases is whether the Subordinate Court by its erroneous decision invested itself with a jurisdiction which in law it did not possess.

Section 80, C. P. C. and sections 31 and 45 of the Sind Court of Wards Act provide protection to officials against personal respon sibility, for official action. The Court's decision was only to the effect that it did not extend to the defendant on the allegation made in the plaint. If the decision had been against the plaintiff, the Subordinate Court could only reject the plaint and the plaintiff by giving proper notice could file a fresh suit. The determination of such a question is not basis of Court jurisdiction to entertain the suit and it is not at par with the decision of a case on ques tion of limitation and res‑judicata.

N.

S. Venkatangar and another v. The Hindu Religious Endowments Board, Madras P L D 1949 P C 26 and Joy Chand Lal Babu v. Kamalaksha Chaudhury and others P L D 1949 P C 114 rel. Wamanrao Trimbakrao v. Vidya Charan and others A I R 1953 Nag‑ 122 ref:

Malik Fateh Muhammad and others v. Malkani Bhag Bhari P L D 1950 Lah. 253 and Government of Bombay v. Pestonji P L D 1949, P C 31 distinguished.

Court may presume allegations in plaint for purposes of' decision : [Kanhaya Lal v. National Bank of India Ltd. I L R 40 Cal. 598 ref].

Sher Ali for Petitioner.

Noorul Arfin assisted by Naimuddin for Respondent.

Dates of hearing: 18th and 19th November 1959.

This revision petition is directed against the order of Mr. Shafi Muhammad R. Akhund, First Class Sub‑Judge, Sukkur on preliminary issues in Suit No. 33 of 1956 dated 11‑4‑1957.

The facts leading to the present petition are that the respondent filed a suit for partition, separate possession and mesne profits again;, the petitioner who represented the estates of Shah Nawaz, Nadir Hussain, Mst. Mukhtar Begum, Mst. Akhtar Begum and Mst. Zohra Begum, the heirs of the late Muhammad Hassan whose property was taken over by the Court of Wards in 1949 for superintendence and management, on the ground that she is also a co‑sharer in the property in dispute. The suit was resisted by the petitioner oil the ground that it was not maintainable in the absence of notices under section 31 of the Court of Wards Act and section 80, C. P. C. and that it was barred under the provisions of section 45 of the Court of Wards Act. The learned Judge tried these objections incorporated in issues Nos. 1 and 2 as preliminary issues and decided that the provisions of section 80, C. P. C. and sections 31 and 45 of the Court of Wards Act are not applicable on the allegations made in the plaint. The petitioner is aggrieved by this order and has come to this Court in revision.

Mr. Noorul Arfin, the learned counsel for the opponent 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 learned Subordinate Judge has neither exercised the juris diction not vested in him by law nor has failed to exercise the jurisdiction so vested in him nor has in any way acted in the exercise of his jurisdiction illegally or with material irregularity.

According to the learned counsel at most the decision' on the preliminary issues can be said to be an erroneous decision on a question of law and on that ground no revision lies to the High Court.

After hearing the learned counsel for the parties I am of the opinion that the preliminary objection must prevail. The leading decisions on the question of the scope of section 115, C. P. C. are two recent cases decided by their Lordships of the Privy Council reported in N. "S. Venkatagiri Ayyanger and another v. The Hindu Religious Endowments Board, Madras (A I R 1949 P C 1956=P L D 1949 P C 26) and Joy Chand Lal Babu v. K'amalakshah Chaudhury and others (A I R 1949 P C 239=P L D 1949 P C 114). Their Lordships in these two cases reiterated the views expressed in I L R 11 Cal. 6 and A I"R 1917 P C 71 that 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 no question of jurisdiction is involved. In the present case the only question for determination before the learned subor dinate 1pourt was whether the suit was bad because no notice under section 80, C. P. C. and section 31, Court of Wards Act before the institution of the suit was given to the opponent and whether it was barred under section 45, Court of Wards Act. Prima facie the objections are covered by the authoritative pronouncements but Mr. Sher Ali, the learned counsel for the petitioner, contended that the learned subordinate Court in holding that the suit is maintainable has committed an illegality or material irregularity in' the exercise of its jurisdiction. He argued that the subordinate Court in exercising jurisdiction has acted in breach of section 80, C. P. C. and sections 31 and 45 of the Court of Wards Act. The learned Counsel for the petitioner relied on a decision of the Lahore High Court reported in Malik Fateh Muhammad and others v. Malkani Bhag Bhari (P L D 1950 Lah. 253). In that case the subordinate Court had issued two Succession Certificates and it was contended that he was not competent to grant more than one certificate. Their Lordships of the Lahore High Court in that connection observed that the learned Subordinate Court by holding that he was compe tent to issue two Succession Certificates assumed a jurisdiction which did not vest in him. In the present case there is, however, no such point involved. The learned Counsel also referred me to the following observation of their Lordships of the Privy Council in Government of the Province of Bombay v. Pestonji Ardeshir Wadia (A I R 1949 P C 156 (158) =P L D 1949 P C 31) in support of his contention‑

"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."

The answer to this question is available in the other decision of their Lordships reported in A I R 1949 P C 239=P L D 1949 P C 114. Their Lordships at page 242 observed :‑

"There have been a very large number of decisions of Indian High Courts on section 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 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 decisions 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 (b) and subsection (c) can be ignored. The cases of Babu Ram v. Munna Lal 49 All. 454: (A I R 1927 All. 358) and Hart Bhikaji v. Naro Vishvanath 9 Born. 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 a limitation and in the other on a question of res judicata, 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."

It will thus be observed that the paramount consideration in such cases is whether the Subordinate Court by its erroneous decision invested itself with a jurisdiction which in law it did not possess.) I quite see the force of the learned counsel's argument that their Lordships considered a decision on the question of res judicata and on a point of limitation amongst those cases which fall under section 115, C. P. C. But in my opinion a decision on the ques tion of notice under section 80, C. P. C. and sections 31 and 45 of the Court of Wards Act is not in the nature of such cases and will not fall under section 115, C. P. C.

The decisions of the preliminary issues in this case do not fall under the category of essential preliminary conditions to the exercise of‑ jurisdiction. Section 80,, C. P. C. and sections 31 and 43 of the Court of Wards Act provide protection to officials against personal responsibility, for official action. The learned Subordi nate Judge's decision is only to the effect that it does not extend to the petitioner on the allegation made in the plaint, if the decision had been against the respondent, the Subordinate Court could only C reject the plaint and the respondent by giving proper notice could file a fresh suit. It is obvious to me that the determination of such question is not basis of Court jurisdiction to entertain the suit and it is not at par with the decision of a case on question of limitation and res judicata. In the last mentioned cases their decision in favour of the defendant completely bars the consideration of the case on merits. There is not the slightest doubt that there was no question raised in the preliminary issues affecting the jurisdiction of the Subordinate Court. It is admitted by the learned counsel for the petitioner that the Court had jurisdiction in the matter but lie has taken a wrong view of the law and committed an error in holding that a notice under section 80, C. P. C. was not necessary and the compliance of sections 31 and 45 of the Court of Wards Act was not also necessary.

On the other hand Mr. Noorul Arfin has relied on a decision of the Nagpur High Court reported in, Wamanrao Trimbakrao v. Vidva Charan and others (A I R 1953 Nag. 122). This is a case in which an identical question was involved. In that case the learned Subordinate Court dismissed the suit against some of the respondents on the ground that section 80, C. P. C. notice was not given. The matter was taken up in revision by the plaintiff before the Nagpur High Court and their Lordships held that the case is not covered by section 115, C. P. C. and no revision lies. The arguments and reasoning given in that judgment is of a very persuasive nature and I am also of the opinion that the learned Subordinate Court by holding that a notice under section 80, C. P. C. was not necessary and the pro visions of sections 31 and 45 of the Court of Wards Act were not A applicable to the facts of the present case did not in any way commit any illegality or material irregularity in the exercise of its jurisdic tion. I therefore hold that the present revision petition does not lie and must be dismissed.

Mr. Sher Ali, the learned counsel for the petitioner however urged that the learned Subordinate Court assumed the allegations made in the plaint as correct and on that basis decided the prelimi nary issues which according to him was not justified in law. The contention of the learned counsel is not sound because their Lordships of the Privy Council in Kankaya Lal v. National Bank of India Ltd. (I L R 40 Cal. 598) clearly observed that in deciding a preliminary issue this is the only way and the Courts with a view to shorten their litigation are entitled to assume the allegations made in the plaint for the purposes of the preliminary issues as correct.

I therefore decline at this stage to interfere in this matter and dismiss the revision petition with costs.

A. H.

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