ISHWARLAL NANDLAL MAULA v. STATE OF MAHARASHTRA — 1965 DIGILAW 117 (GUJ)

J. B. MEHTA, J. ( 1 ) THIS revision petition raises an interesting question as the interpretation of sec. 115 of the Code. ( 2 ) THE plaintiff had filed the present suit against the State of Bombay for a declaration that the order of reversion in rank was illegal and for an amount of Rs. 4120. 00 as difference in salary. The plaintiff had sought the amendment of the plaint under which he had prayed for an additional ground to the effect that the order of the State of Bombay was invalid also on the ground of discrimination as violating Article 14 and Article 16 of the Constitution and for valuing the suit at Rs. 10003 and 16 np. for the purpose of jurisdiction and court fees. These amendments were granted and the suit was disposed of from the ordinary file and was registered as special suit No. 1 of 1962 and was then decreed in favour of the plaintiff. In appeal however it was held that the State of Gujarat was not responsible for the suit claim after the bifurcation of the State of Bombay and the matter was remanded to the trial Court for deciding the suit against the State of Maharashtra alone. That is why the said applica- tion for amendment had to be heard again. So far as the present applica- tion is concerned it is against the order of the trial Judge refusing amendment in respect of para 6a in the plaint by which the plaintiff wanted to challenge the order of the Government on the additional ground that it was discriminatory and in violation of Articles 14 and 16 of the Constitution. The trial Court had rejected it on the ground that the said amendment could not be allowed as this ground was not taken up in the statutory notice under sec. 80 of the Civil Procedure Code. The plaintiff has therefore filed the present revision petition against the said order refusing the amendment. ( 3 ) AT the outset Mr. Vidyarthi argued that the jurisdiction of this Court under sec. 115 is restricted to revise the errors of jurisdiction alone and sec. 115 does not permit the Court to revise orders involving conclu- sions of law and facts in which questions of jurisdiction were not involved. ( 3 ) AT the outset Mr. Vidyarthi argued that the jurisdiction of this Court under sec. 115 is restricted to revise the errors of jurisdiction alone and sec. 115 does not permit the Court to revise orders involving conclu- sions of law and facts in which questions of jurisdiction were not involved. Sec. 115 has now been interpreted time and again by the Supreme Court and the ratio laid down by the Privy Council in Balkrishna v. . Vasudev Ayyar A. I. R. 1917 P. G. 71 has been approved laying down that sec. 115 applies to questions of jurisdiction alone irregular exercise or non-exercise of it or the illegal assumption of it and that section is not directed against the conclusions of law or facts in which the question of jurisdiction is not involved. This question had recently come up before the Supreme Court in Civil Appeal No. 163 of 1963 in Pandurang Dhondi Chougale v. Maruti Hari Jadhav decided on 26th April 1965. The Bench of the Supreme Court consisting of five Judges approved the decisions in Mahindra Land and Building Corporation Ltd. v. Bhurnath Banerjee and others A. I. R. 1964 S. C. 1336 and Vora Abbasbhai Alimohmed v. Haji Gulabnabi Haji Sadbhai A. I. R. 1964 S. C. 1341. The learned Chief Justice speaking for the entire Bench pointed out that the effect of these two decisions clearly was that a distinction must be drawn between the errors committed by subordinate Courts in deciding questions of law which have relation to or are concern- ed with questions of jurisdiction of the said Court and errors of law which have no such relation or connection. It was thought undesirable and inexpedient to lay down any general rule in regard to this position as in actual practice it would not be difficult to distinguish between cases where errors of law affect or have relation to the jurisdiction of the Court concerned and where they do not have such a relation. Even where the section was misconstrued it was held that the provisos of sec. 115 were attracted only if such statutory provision had relation to the erroneous assumption of jurisdiction or erroneous failure to exercise jurisdiction or exercise of jurisdiction illegally or with material irregularity by the subordi nate Court. Even where the section was misconstrued it was held that the provisos of sec. 115 were attracted only if such statutory provision had relation to the erroneous assumption of jurisdiction or erroneous failure to exercise jurisdiction or exercise of jurisdiction illegally or with material irregularity by the subordi nate Court. It was further observed that it was well settled that aplea of limitation or a plea of res judicata was a plea of law which concerned the jurisdiction of the Court which tried the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court and so an erroneous decision on these pleas could be said to be concerned with question of jurisdiction which fell within the purview of sec. 115 of the Code. Otherwise an erroneous decision which had no relation to the question of jurisdiction of that Court could not be corrected by the High Court under sec. 115. In that decision the question involved was one of construction of a decree which like the construction of a docu- ment of title was no doubt a point of law but the error of law in deciding that question was held not to involve the question of the Courts jurisdic tion and therefore it was held that the High Court had no power to correct that decision under sec. 115 of the Code. It is thus settled that the errors which relate to jurisdiction alone could thus be corrected under sec. 115. In questions of facts however where collateral jurisdictional facts have to be decided on the proof of which depends the jurisdiction of the Court even such decisions on collateral jurisdictional facts would also be open to revision. The distinction between the collateral jurisdictional facts and the facts in issue is well settled. In one case the Court decides the question pertaining to jurisdiction and by a wrong decision it clutches at the jurisdiction or refuses to exercise jurisdiction while in the other the decision is on the question which is within its jurisdiction. The distinction between the collateral jurisdictional facts and the facts in issue is well settled. In one case the Court decides the question pertaining to jurisdiction and by a wrong decision it clutches at the jurisdiction or refuses to exercise jurisdiction while in the other the decision is on the question which is within its jurisdiction. It is on this important distinction that in M. L. and B. Corporation v. Bhutnath A. I. R. 1964 S. C. 1336 (1338) even on a question of limitation where the delay was refused to be condoned on the ground that the trial Court was not satisfied of any sufficient cause the decision as to the existence of the sufficient cause was not held to be a question relating to jurisdiction so that the order could be revised under sec. 115. It is only where the Court wrongly invokes the bar of limitation or the bar of res judicata and refuses to entertain the suit or proceeds with the suit when the same is clearly barred that the question can be said to be one relating to jurisdiction as it affects the entire jurisdiction of the Court to try the suit. Similarly the decision on the collateral jurisdictional facts is also one directly relating to the question of jurisdiction. In Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi A. I. R. 1959 S. C. 492 it was therefore held that where the necessary jurisdictional fact to be found was the date of construction of the accommodation and if the Court wrongly decided the fact and thereby conferred jurisdiction upon itself which it did not possess it exercised jurisdiction not vested in it and the decision could be interfered with under sec. 115. In the present case the question involved was whether the trial Court rightly invoked the bar of sec. 80 of the Code when it refused to entertain the claim of the plaintiff on that ground. Such a question went directly to the root and had direct relation to the jurisdiction of the Court. If therefore the conclusion of the trial Court that there was a bar of sec. 80 of the Code when it refused to entertain the claim of the plaintiff on that ground. Such a question went directly to the root and had direct relation to the jurisdiction of the Court. If therefore the conclusion of the trial Court that there was a bar of sec. 80 to the present amendment was not warranted if it had properly understood the relevant enactment and if it was this patently wrong view of law which prevented it from entertaining the plaintiffs claim the error was clearly one of jurisdiction and jurisdiction alone which could be corrected under sec. 115 of the Code. Mr. Vidyarthi strongly relied upon the decision of the Supreme Court in Misrilal Parasmal v. H P. Sadashivah 1965 S. C. 553 where it was held that where jurisdiction to evict a tenant was conferred on the Court if it was satisfied regarding the bona fide requirement of the landlord the condition which conferred the jurisdiction was the satisfaction of the Court as to the bona fide requirement of the landlord. If the Court held that it was satisfied it could not however be regarded as committing error pertaining to jurisdiction merely because it formed a wrong conclusion as to the bona fides of the landlord in requiring possession of the house. That decision could have no application to the facts of the present case. Mr. Vidyarthi ignores the material distinction between a collateral juris- dictional fact and a fact in issue which is left exclusively to the decision of the special tribunal. The question of bona fide requirement having been left to the decision of the Rent Court it was the decision on a fact in issue and not the decision on a collateral fact on the proof of which alone the jurisdiction of the Rent Court was dependent. Such a decision could not be corrected under sec. 115 on the analogy of decision on collateral jurisdictional facts. In R. v. Paddington Valuation Officer 1965 All E. R. 836 at 842 Lord Denning M. R. pointed out the meaning of the term jurisdiction in the context of the grounds on which a writ of certiorari would lie. Such a decision could not be corrected under sec. 115 on the analogy of decision on collateral jurisdictional facts. In R. v. Paddington Valuation Officer 1965 All E. R. 836 at 842 Lord Denning M. R. pointed out the meaning of the term jurisdiction in the context of the grounds on which a writ of certiorari would lie. He pointed out that if a tribunal or body was guilty of an error which went to the very root of the determination in that it had approached the case on an entirely wrong footing then it did exceed its jurisdiction. He further confirmed the view that if a tribunal based its decision on extraneous considerations which it ought not to have taken into account or failed to take into account a vital consideration which it ought to have taken into account then its decision might be quashed on certiorari and a mandamus issued to hear the case afresh. He further observed that when an application was refused on the ground not open to the tribunal it was the case of excess of jurisdiction. It is thus clear that the jurisdictional error within the meaning of sec. 115 would be one which goes to the root so as to affect the entire trial or the ultimate decision of the suit. As pointed out by the Supreme Court in the aforesaid decision in Chaube Jagadish Prasad v. Ganga Prasad A. I. R. 1959 S. C. 492 (498) if the subordi- nate Court had jurisdiction to make the order it made and had not acted in breach of provision of law or committed any error of procedure which was material and might have affected the ultimate decision then the High Court had no power to interfere. In S. S. Khanna v. F. J. Dillon A. I. R. 1964 S. C. 497 (503) the Supreme Court had held that sec. 115 (c) was clearly attracted where a Court had held that the suit was not maintain- able on a preliminary issue as it had no jurisdiction under the Code to try a suit on mixed issues of law and fact as preliminary issues and had thus in substance decided an issue of fact without any trial of the suit on evidence. It is therefore clear that if the subordinate Court on a patently wrong view or missing relevant considerations or on ground not open to it holds a bar to exist when there was no bar to the trial of the suit the error would be clearly one going to the root and affecting the jurisdiction to try the suit. If therefore the present amendment was no barred under sec. 80 of the C. P. Code the trial Court in holding that the amendment could not be allowed in view of that bar was clearly declining to exercise jurisdiction to entertain the plaintiffs claim ( 4 ) IN the present case in the original statutory notice the plaintiff has challenged the order of reversion by the State Government as illegal and void on the ground of contravention of Art. 311. In the statutory notice he had further alleged in para 4 that his reversion was not technical one on the ground of juniority but was made without issuing a show cause notice and a proper inquiry. In para 6 he had further alleged that he had sufficient reasons to believe that the reversion could not be due to any remarks against him but could be attributed to some other reasons or prejudice which he could have cleared up if an opportunity was given to him to do so. Finally in para 8 the plaintiff had stated that the reversion was realy by way of punishment. He further alleged in terms that many juniors had been promoted as Mahalkaris and Mamlatdars while he was not promoted which clearly showed that the reversion was by way of penalty. It is thus clear from the reading of the notice under sec. 80 as a whole in its entire context that the plaintiff had challenged his reversion not only on the ground of contravention of Art. 311 as an order of punishment without holding any inquiry but also on the ground that his seniority was disregarded and that he had been discriminated by the said order. These very allegations are sought to be made in para 6a and the effect is sought to be stated by the allegation that the order also amounted to a contravention of Articles 14 and 16 on the ground of discrimination. These very allegations are sought to be made in para 6a and the effect is sought to be stated by the allegation that the order also amounted to a contravention of Articles 14 and 16 on the ground of discrimination. If therefore the statutory notice had been read by the trial Court it was clear that the plaintiff did not seek to make out any new ground for challenging his reversion as illegal which did not exist in the statutory notice. Mr. Patel in this connection relied Upon a decision in Lady Dinbai Dinshaw Petit v. The Dominion of India A. I. R. 1951 Bom. 72 where it was held that the object of sec. 80 was to give an intimation to the Govern- ment that the subject had a grievance and to give to Government an opportunity to redress that grievance before it was brought to the Court. The section was not intended to be an instrument of oppression against the subject. It was therefore held that the expression cause of action in sec. 80 must be construed in a liberal way in favour of the subject and so long as proper notice was given to Government as to the nature of the suit and the facts on which the plaintiffs relied for obtaining the relief which they sought in the suit the Court must be satisfied that there was a proper compliance with the provisions of sec. 80. It was also held that where the amendment of the plaintiff gave further grounds in support of the contentions and allegations which constitute the plaintiffs cause of action a further notice under sec. 80 was not necessary. It would be extremely hard on a party to be told by the Government that although it had all the materials and it had all the particulars still sec. 80 made it incumbent upon the plaintiff to mention all the grounds to challenge the order and if the plaintiff omitted any ground the plaintiff could not supplement it at a later stage. In that case there was an allegation that the order of Government was made for purposes other than those contem- plated by the relevant rule of the Defence of India Rules and it was generally stated that it was not made bona fide and for the purpose for which it was purported to have been made. In that case there was an allegation that the order of Government was made for purposes other than those contem- plated by the relevant rule of the Defence of India Rules and it was generally stated that it was not made bona fide and for the purpose for which it was purported to have been made. In the amendment the order was challenged on the ground that it was mala fide and for a collateral purpose. The amendment gave another ground in support of the conten- lion of the plaintiff as to why the order was not made for the purposes for which it was purported to have been made and it also furnished another grounds to why the order was not made bona fide. It was held that such an amendment did not introduce in the plaint a new or fresh cause of action. What the amendment did was to give further ground in support of the plaintiffs contention. In the present case also what the plaintiff now states is the effect of his material allegations that he had been discrimi- nated by further alleging that such discrimination amounted to contraven- tion of Articles 14 and 16 of the Constitution. Such an amendment clearly flows from the same cause of action which had been alleged by the plaintiff and no new cause of action was sought to be introduced. Mr. Vidyarthi argued that whether a cause of action was the same or different was clearly a finding of fact or a mixed question of fact and law and it was within the jurisdiction of the trial Court. If however the trial Court has ignored the material allegations in the statutory notice and has invoked the bar of the sec. 80 where it did not exist the error was clearly one relating to jurisdiction. I therefore cannot agree with Mr. Vidyarthi that such a fundamental error could not be corrected in revision. ( 5 ) IN the result this revision application must be allowed. The order of the trial Court is set aside and the amendment sought by the plaintiff by adding para 6a is granted. The trial Court shall allow the plaintiff to amend the plaint by introducing para 6a in the plaint and shall further proceed with the suit as expeditiously as possible. Rule accordingly made absolute with costs. application allowed. .