PETITIONER: <ORG>. Vs. RESPONDENT: UNION OF INDIA, NEW DELHI. DATE OF JUDGMENT05/01/1971 BENCH: <NAME>, J.M. BENCH: <NAME>, J.M. VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 696 1971 SCR (3) 282 1971 SCC (1) 295 CITATOR INFO : F 1973 SC 683 (10) R 1987 SC2045 (7) R 1988 SC1166 (7) F 1988 SC1791 (10) R 1988 SC2018 (9) RF 1990 SC1340 (8) ACT: Arbitration Act , s. 30-Setting aside award---Error apparent on the face of award-What is. HEADNOTE: The Director General of Disposals, through correspondence and sale notes, sold to the appellant-company, United States surplus was materials consisting of vehicles and other stores. Disputes having arisen between the parties, both as regards the contents of and the quantity of the vehicles deliverable under the contracts, they were referred to arbitration as per cl. 13 of the general conditions of the contract between the parties. The disputes consisted of claims and counter claims and the umpire after deducting the amount of one claim allowed to the appellant, held that the appellant was liable to pay to the respondent Rs. 34,70,226.50 and costs amounting to Rs. 5,40,544,00. The award was filed in <ORG> and the appellant applied for having it set aside on various grounds. The Court held that with respect to certain matters claimed by the respondent the umpire had no jurisdiction and remitted the award for reconsideration of those items and also for readjustment of the amount of costs. <ORG> confirmed the judgment of the District Judge. In appeal to this Court, it was contended that the award was liable to be set aside, because : (1) the contracts of sale were misconstrued and the error appeared on the face of the award; (2) several documents bearing on the scope of the sales were not considered; (3) the umpire went beyond his jurisdiction when he awarded compensation to the respondent because the appellant removed certain vehicles; (4) that the umpire acted as a conciliator deciding matters on conjecture; (5) that the umpire fixed ground rent payable by the appellants without any evidence; and (6) that the costs awarded were totally disproportionate. HELD : (1) When parties choose their own arbitrator to be the judge in the dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon the law or the facts. Therefore, even when an arbitrator commits a mistake either in law or in fact in determining the matters referred to him. but such mistake does not appear on the face of the award or in a document appended to or incorporated in it so as to form part of it, the award will neither be remitted nor set aside. Whether the contract or a clause of it is incorporated in award is a question of construction of the award. The test is, did the arbitrator corn,--' to a finding on the wording of the contract. If be did, he can be said to have impliedly incorporated the contract or the relevant clause but a mere general reference to the contract in the award is not to be held as incorporating it. [288 F-H; 289 <CITATION> .  1 S.C.R. 324, followed. 283 <CITATION> .  A.C. 480, applied. <NAME> v. <ORG>  A.%'-. 395 and <NAME> v. <ORG>  2 All E.R. 53, 62. referred to. 2(a) The dispute in the present case being as to what was sold and as to whether besides the sale-notes, the subsequent clarifications or. explanations given by various officers of the respondent formed part of the contract and were binding on the respondent, and both the questions having been referred to arbitration, the umpires findings on them would bind the parties unless he laid down any legal proposition such as a construction which is made the basis of the award and is on the face of the award erroneous. The award showed that the umpire had considered besides the sale-notes the oral and documentary evidence led by the parties as also the contentions urged by counsel. It could not, therefore, be contended that the several documents were not taken into consideration by the umpire. [291 E-F; 292 E- H] (b) The umpire laid down the legal proposition that the clarifications or assurances given subsequent to the dates of the sale-notes were not binding on the respondent and could not affect the scope of the sales; but the fact that he answered a legal point, which he had to decide while deciding the questions referred to him, did not mean that he incorporated into the award or made part of it a document or documents, the construction of which was the basis of the award. If there was an error in such a case it could not be said to an error appearent on the face of the award entitling the court to consider the various documents placed before the umpire but not incorporated in the award so as to form part of it, and then to make a search if they had been misconstrued by him. [293 B-E] (3) Once it was found that it was competent for the umpire to decide that the appellant company was not entitled to keep certain vehicles which it had removed, he must, to do justice between the parties, order the appellant either to return them or to pay compensation for them. Since the first course-was not possible because of lapse of time the second was the only obvious course. Clause 13 of the general conditions provides for reference to arbitration of all questions or disputes arising, under these conditions or in connection with this co-tract, and these words are wide and comprehensive. Therefore, the umpire did not go beyond his jurisdiction in accepting the respondent's counter claim for compensation. [295 D-E] (4) Merely because the umpire held that even though the appellant was not entitled to some vehicles claimed by it, yet the authorities had delivered a substantial number of them. without going into details, it could not be said that he bad acted without evidence or that he behaved in the matter as a conciliator, or gave findings on conjuncture and surmises, especially when the appellant withheld relevant evidence which was in its possession. [296 E-F] (5) Under the contracts of the sale. the appellant was bound to pay to the respondent ground rent and other charges which the respondent in its turn was liable to pay the owners; and since it was not the appellant's case that the respondent had claimed a higher amount there was no sub- stance in the contention that the arbitrator fixed the ground rent without any evidence. [297 A-C] 284 (6) Considering the huge amounts claimed by the parties, the volume of evidence, adduced and the number of days occupied in recording that evidence and in arguing the case, it could not be said that the discretion of the umpire exercised in the matter of costs was exercised in breach of any legal provision or unreasonably. [297 C-D] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2418 of 1966. Appeal by special leave from the judgment and order dated February 19, 1963 of <ORG>, at Delhi in F.A.0. Appeal No. 123-D of 1961. <NAME>, <NAME>, <NAME>, <NAME> <NAME> and <NAME>, for the appellant. <NAME>, <NAME> and <NAME>, for the respondent.

The Judgment of the Court has delivered by <NAME>, J. By this appeal, under special leave, the appellantcompany challenges the correctness of the judgment of <ORG>, dated February 19, 1963 refusing to set aside an umpire's award, dated March 22, 1958. The award was in respect of certain disputes between the company and <ORG> in the matter of disposals of the United States surplus war materials left by the Government of the U.S.A. at the end of the last World War. These surplus materials, called <ORG>, consisted of vehicles and other stores. It was said that these were sold to the company by the Director-General, Disposals through correspondence and sale-notes. These contracts of sale were subject to the General Conditions of Contract (Form Con. 117). Cl. 13 of these General Condi- tions provided that "In the event of any question or dispute arising under these conditions or any special conditions of contract or in connection with this contract-the same shall be referred to the award of an arbitrator to be nominated by the Director General and an arbitrator to be nominated by the contractor, or in the case of the said arbitrators not agreeing then to the award of an Umpire to be appointed by the arbitrators in writing before proceeding on the reference----.

Upon every and any such reference, the assessment of the costs incidental to the reference and award respectively shall be in the discretion of the arbitrators, or in the event of their not agreeing, of the <ORG> appointed by them."

Disputes having arisen between the parties both as regards the contents and the quantity of the vehicles delivered under the contracts, they were referred, in the first instance, to two arbitrators nominated by the parties, and ultimately to an umpire. The disputes were crystallized into nine claims by the appellant company totalling Ks. 6,73,34,500/-, and several counterclaims by <ORG>. At the end of the arbitration, the umpire, by his said award, disallowed all the claims made by the company, except one for which he awarded RS. 6,94,000/- and held, in respect of the counter-claims filed by <ORG>, that the appellant-company was liable to pay to the <ORG> in all Rs. 36,23,682.50 P. and costs amounting to Rs. 5,40,544/-. In the result, after deducting the claim allowed to the appellant-company, the company was held liable to pay to the <ORG> Rs. 34,70,226.50 P. The award having been filed by the umpire in <ORG>, District Judge, Delhi and <ORG> having thereupon applied for a decree in term of the award, the company applied to the Court for setting aside the award urging several grounds for so doing. The District Judge by an elaborate judgment declined to set aside the award. He, however, held that the award suffered from an error apparent on the face of the award in respect of the appellant's claim No. 111(a), and further held that the counter-claims 11, IV, V and VI made by the <ORG> were not covered by the reference, and consequently, the umpire had no jurisdiction to go into them. Declining, however, to set aside the award, he remitted it for reconsideration of the aforesaid items and also for readjustment of the amount of costs in the evert of enhanced compensation being awarded to the company in respect of its claim No. 111(a). Dissatisfied with the judgment of the court the company filed an appeal before <ORG>. <ORG> also filed certain coss-objections. <ORG> heard the appeal and the cross-objections together and by its aforesaid juggment dismissed both the anneal and the cross-objections and upheld the judgment of the District Judge. In support of the claim that the award was liable to be set aside, counsel for the company submitted the following six propositions for our acceptance :

1. that the contracts of sale entered into by the company were misconstrued by the umpire and such misconstruction appears on the face of the award:

2. that the umpire. as also <ORG>, failed to take into consideration several documents while deciding the scope of the sales;

3. that in respect of claim No. VI and counter-claim No. VI of the Government, the umpire acted beyond his jurisdiction as those question,,; did not fall within the scope of the reference;

4. that the umpire did not act according to law but acted as a conciliator and based his award on mere conjectures and surmises;

5. that his conclusion on ground rent awarded to the <ORG> was based on no evidence; and

6. that the costs awarded to the Government were altogether disproportionate.

Before we proceed to consider these propositions, it is necessary to ascertain the scope of, S. 30 of the Arbitration Act 1940 and the principles underlying that section. The general rule in matters of arbitration awards is that where parties have agreed upon an arbitrator, thereby displacing a court of law for a domestic forum, they must accept the award as final for good or ill. In such cases the discretion of the court either for remission or for setting aside the award will not be readily exercised and will be strictly confined to the specific grounds set out in ss. 16 and 30 of the Act. In <NAME> vs. Fernie,(1) <NAME>, J. stated the principle as follows :-

"where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and fact .... The only exceptions to that rule are, cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted, is now, I think, firmly established, viz., where the question of law necessarily arises on the face of the award, or upon some paper accompanying and forming part of,-the award."

This observation was recently cited with approval in <CITATION> . (2) The principle is that the <ORG>, while examining an award-, will look at documents accompanying and forming part of the award. Thus, if an arbitrator were to refer to the pleadings of the parties so as to incorporate them into the award, the <ORG> can look at them. In some cases, however, courts extended the principle and set aside the award on a finding that the contract, though only referred to but not incorporated into the award as part of it, had been misconstrued and such misconstruction had (1) (1857)(3)C.B.(N.S.)189, 202.

(2) [1967] 1 S.C.R.324.

been the basis of the award. Thus, in <NAME> v. Asser(1) the dispute between buyers and sellers of goods was as to who was entitled to certain sums paid upon a policy of insurance upon the goods. This was referred to arbitration and the umpire made his award basing it on the construction he placed on the contract, namely, that as the parties to the contract were "by the terms thereof" principals, their interest and liability in insurance was defined to be the value of the invoice plus 5 per cent. On an application to set aside the award, <ORG> held that inasmuch as the umpire had referred to the contract and the terms thereof, it was justified in looking at the contract, and having done so, found that he had based his decision entirely upon the terms of the contract. It also found that since the contract, if properly construed, did not justify the decision, the award was bad on the face of it and was liable to be set aside. A similar view appears also to have been taken in <ORG> v. <ORG> . (2 ) where the award set out the relevant words and cl. 30 of the contract and also the conclusion of law on the meaning of those words. Lord <NAME> said that since the award recited the contract and referred in terms to the provisions of cl. 30, thereby incorporating it into the award, and then stated the construction which the arbitrator placed upon that clause, the Court was entitled to look at that clause to ascertain if the construction placed by the arbitrator was erroneous. The correctness of the decision in <NAME> v. Asser(1) was challenged before <ORG> in <CITATION> .(2) Lord Dune- din,, however, did not expressly overrule it but rested content by observing that that decision was not binding on the Board. But he formulated the principle thus : .LM15 " An error in law on the face of the award means, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound."

(1) [1905](2) K.B. 184.

(2) 1933 A.C. 592.

(3) [1923] A.C.480.

<ORG> upheld the award. stating that it was impossible to say what was the mistake on the face of the award which the arbitrators had made as they had not tied themselves down to any legal principle which was unsound. The mere fact that the court would have construed a document differently than the arbitrator would not induce the court to interfere unless the construction given by the arbitrator is such that it is against the well-established principles of construction. see <NAME> v. <ORG>) I In an illuminating analysis of a large number of earlier decisions, including Landauer(2) and <ORG>) <ORG>, in <NAME> v. <ORG> (4 ) recorded his conclusion thus "It seems to me, therefore, that, on the cases, there is none which compels us to hold that a mere reference to the contract in the award entitles us to look at the contract. It may be that in particular cases a specific reference to a particular clause of a contract may incorporate the contract, or that clause of it, in the award. I think that we are driven back to first principles in this matter, namely, that an award can only be set aside for error which is on its face. It is true that an award can incorporate another document so as to entitle one to read that document as part of the award and, by reading them together, find an error on the face of the award."

The question whether a contract or a clause of it is incorporated in the award is a question of construction of the award. The test is, does the arbitrator come to a finding on the wording of the contract. If he does, he can be said to have impliedly incorporated the contract or a clause in it whichever be the case. But a mere general reference to the contract in the award is not to be held as incorporating it. The principle of reading contracts or other documents into the award is not to be encouraged or extender. (see <NAME> v. <NAME> & The rule thus is that as the parties choose their own arbitrator to be the judge in the dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon the law or the facts. Therefore. even when an arbitrator commits a mistanke either in law or in fact in determining the matters referred to him, but such mistake does not appear on the face of the (1) [1] 1923 A.C.395 (2) [1905] 2 K.B.184 (3) [1933] A.C. 592. (4) [1962]2 All E.R. 53, 62 (5) C. A. NO. 1 07 of 1966, Decided on 5-12-1968.

award or in a document appended to or incorporated in it so as to form part of it, the award will neither be remitted nor set aside notwithstanding the mistake. In the light of the principle above stated, the first question calling for determination is, is there an error apparent on the award, in the sense that the umpire misconstrued the contracts of sale inasmuch as though those contracts were contained 'in sale-notes as well as in several letters, he considered the sale-notes only as containing the contracts of sale disregarding the corres- pondence which had taken place between the company and the Director-General, Disposals and his officers ? Such a question would undoubtedly be one of law. But the disputes referred to the umpire contained disputes both of fact and law. Ordinarily the decision of the umpire, even though it be on a question of law, would be binding on the parties. The court would only interfere if the case falls within the exceptions mentioned by <ORG> in <NAME> v. Fernie(1) and reaffirmed by <ORG>, in <NAME> v. <ORG>). There were in all three separate sales to the appellant- company,, which according to the respondents were incorporated in sale notes Nos. 160,. 161 and 197. Before the sale-note 160 was issued on July 11, 1946, it is a fact that the company had written a letter dated July 10, 1946 which was also endorsed by two officers of the Director- General, Disposals. The letter contained three clauses, the first of which stated that "M/s. <NAME> will buy <ORG>as is where is for Rs. 1,80,00,000/". The two other clauses provided the manner and time of payment of the sale price. But the letter commenced. with the following words:

"Pending detailed record of terms tomorrow the following are the broad heads of agreement, which will form the-basis of sale of surplus vehicles."

The next day, i.e., July 11, 1946, the <ORG> issued sale note 160, which in clear terms stated that what was purchased were "all vehicles and trailers lying in <ORG> Depot", which meant that the vehicles sold were only those that were actually lying in that depot on July 11, 1946, and not those outside it or those borne on the records of that depot, as contended by the company. It, however, appears from the judgment of <ORG> (para 206) that on receipt of sale-note 160, the company wrote a letter on July 11, 1946 in which it contended that "We have purchased the entire vehicle depot of <ORG>".

(1) [1857] 3 C.B. (N.S. 189,202. 57) (2) [1962] 2 All ER-53, 68.

7SupCI/71 It appears that in view of this difference of opinion, a meeting ,of representatives of the parties, was held on July 23, 1946, the minutes of which, as recorded by the Assam Controller, U.S.A.S.S., read as follows:

(2) (a) The vehicles and trailers sold to Messrs. Allen Berry and Co. Ltd., are deemed to, include all vehicles which were or should have been held in Moran Depot on the 10th July, also those which have 'been issued on a Memorandum Receipt as follows :-

(i) To the Americans, left behind by them in various camps and depots and not yet turned in by us.

(ii) Vehicles issued on Memorandum Receipt to military units assisting <ORG>.

(iii) Any surplus vehicles originally allotted to U.S.A.S.S. Units-for operational purposes and now no longer required by them."

On September 17, 1946, a secraphone message was sent from New Delhi to Calcutta which stated "We have sold U.S. Army surplus vehicles presumed to be borne on Moran list, that is those actually in Moran Vehicle Depot or those that were intended to be moved to that depot, which was meant to be parking depot for surplus U.S. vehicles in Assam area." On September 26 1946, the Director-General,'Disposals, wrote to the company that "The vehicles sold to you in Assam are those U.S. Army surplus. vehicles actually in Moran Vehicle Depot or those that were intended to be moved to Moran Vehicle Depot. Any mobile engineering equipment, such as mobile cranes, tracked tractors are, excluded from the sale to you." On December 10, 1946, the Controller issued a release order in respect of

1. All vehicles and trailers lying in Moran Depot on 10th July 1946 including all <ORG>, excluding land and buildings lying within Moran Depot and transferred to <ORG> from the Government of the United States.

2. Vehicles in operational use in Calcutta and Assam as and when no longer required by <ORG>."

The question raised by counsel is that the umpire failed to consider all these documents while considering the scope and content of the contract of sale and relied on only sale-note No. 160, dated July 11, 1946, that the contract was not contained in the said note 160 alone, and that therefore, he misconstrued the contract, and that that misconstruction, which is a point of law, is apparent on the face of the award, as it was made the very basis of the award. The first three issues raised by the umpire were (1) whether the appellant was entitled to prove that any vehicles, stores etc. other than those mentioned in the sale-notes were sold to it;

(2) whether the Government was bound by the clarifications, representation, explanations or assurances made or given by any officer or officers of the <ORG> regarding the subjectmatter of the contracts of sale except those necessarily implicit in the sale-notes; and (3) whether the Government sold any vehicles except those lying in <ORG> on July 11, 1946, or those intended to be moved thereto. The dispute between the parties, thus, clearly was that whereas the company claimed that the, sale was of all vehicles borne on the records of <ORG>, irrespective of whether they were actually lying there on July 11., 1946 or not, the Government claimed that the company was entitled to those actually lying in the <ORG>. According to the respondents, the contract of sale was to be found in the sale-note, and therefore, any subsequent explanations or assurances given by any officer or officers of the <ORG> could not vary or alter the terms of the contract. These expanations and assurances were given, only to remove the misunderstanding of the company over the question of the scope and extent of the sale made to it. The umpire set out part of the sale-notes 160 and 197 in the award and then observed "the language used in these sale letters is to my mind perfectly clear, explicit and unambiguous and excludes the possibility of any vehicles, trailers or stores lying on the dates in question outside the locations specified in the sale letters having been included in the two sales. The contention that they in fact include all vehicular stores in Assam in one case and in Bengal area in the other has been made in all seriousness and a good deal of evidence both oral and documentary has been produced in support of or against such contention. The point has also been argued at great length by learned counsel for the parties. I have given the whole matter my most serious and earnest consideration and my view is that apart from the language of the two saledeeds' being against such a contention, the evidence too considered as a whole does not support it. Accordingly, I hold that the stores sold to the claimants in the case of Assam were those actually located in <ORG> on July 10,1946 and in the case of Bengal those actually located in Jodhpur and other depots specified in the sale letter on July 31, 1946."

He next held :

"The alleged clarifications or representations made or explantions or assurances given by any officer or officers of <ORG> either verbally or in writing have been very carefully examined by me and I am of opinion that neither are they, considered as whole, capable of the interpretation sought to be put upon them by the claimants nor are the respondents bound by them. They are not in accordance with law and do not amount to legal contracts binding the respondents."

These passages clearly show that the umpire had considered, besides the sale-notes, the oral and documentary evidence led by the parties as also the contentions urged on and as regards them by counsel for the company. It is impossible, therefore, to uphold the contention that the various documents, i.e., the letter of the company dated July 10, 1946, 'the subsequent correspondence, minutes of the meetings which too place after the salenote 160 was issued etc. were not taken into consideration by the umpire while coming to his conclusion as to what actually was sold to the company.

The dispute, amongst other disputes, referred to the umpire and crystallized by him in the form of issues on the pleadings of the parties involved, as already stated, the question first as to what was sold, and secondly, arising out of that, the question whether besides the said sale- notes 160 and 197, the subsequent clarifications or explanations were binding on the Government. These were, no doubt, questions partly of fact and partly of law. But questions both of fact and law were referred to the umpire and prima facie his findings on them would bind the parties unless, as explained earlier, the umpire has laid down any legal proposition, such as a construction which is made the basis of the award and is on the face of the award an error.

The point is, is this such a case ? True it is that this is not ,a case where a question of law is specifically referred to. It is clearly a case falling in the category of cases, like <NAME> v. <ORG> (1) wherein deciding the questions referred to him the umpire has to decide a point of law. In doing so, the umpire no doubt, laid down the legal propsition that the clarifications or assurances given subsequent to the dates of the said sale- notes by an officer or officers of the department were not binding on the respondents nor could they affect the scope of the sales. That answer the umpire, was entitled to give. But the fact that he answered a legal point does not mean that he has incorporated into the award or made part of the award a document or documents, the construction of which, right or wrong, is the basis of the award. The error, if any, in such a case cannot be said to be an error apparent on the face of the award entitling the court to consider the various documents placed in evidence before the umpire but not incorporated in the award so as to form part of it and then to make a search if they have been misconstrued by him. This, in our understanding, is the correct principle emerging from the decisions which counsel placed before us. In any event, this is not a case where the umpire, in the words of Lord <NAME>, "tied himself down to a legal proposition" which on the face of the award was unsound. The award ,makes it clear in so many words that he took into. account the entire evidence, including the documents relied on by counsel and then only came to the conclusion that it did not assist the company in its contention as to the scope of the sales. Contentions 1 and 2 raised by Mr. <NAME>, therefore, cannot be upheld.

Contention No. 3 relates to 547 vehicles said' to have been sold to the company under sale:-note 197, dated August 2,/6, 1946. There is no dispute that out of these vehicles the company removed 291 vehicles alleging that the delivery of the balance of 256 vehicles was withheld. The company made a claim being claim No. VI for the price of these 256 undelivered vehicles. The respondents contention was that the sale to the company was confined only to <ORG>, that these vehicles did not fall within that category, but were Reverse Land Lease vehicles belonging to <ORG> under an agreement between the U.S.A. and India. On these allegations the respondents laid counter-claim No. VI claiming the price of the 291 vehicles admittedly removed by the company when they were lying in Jodhpur Depot, Calcutta.

The umpire found that the expression "Reverse Land Lease" related to the reciprocal aid articles referred to in the said agreement. A reciprocal aid article, according to that agreement, (1) [1923] A.C. 395.

meant an article transferred by <ORG> to <ORG> under reciprocal aid under para 4-C of that agreement'. <ORG> was deemed to have acquired as on September 2, 1945 full title over such articles except that such reciprocal aid articles incorporated into installations in India were deemed to have been returned to <ORG> from the date when the U.S.A. forces relinquished possession of such installations. From the inventories produced before him, the umpire held that these 547 vehicles were incorporated into installations in India, and therefore, ownership in them vested in <ORG> on and after the U.S.A. forces relinquished possession of those installations. They could not, therefore, be regarded ,is <ORG> which alone were and could be the subject-matter of sale-note 197. Consequently, the company was not entitled to remove the said 291 vehicles which it did, much less could the company claim compensation for 256 vehicles which it alleged were not delivered to it. In the result, the umpire allowed the <ORG>'s counter-claim No. VI, which was for the price of 291 vehicles unauthorisedly removed by the company from Jodhpur Depot.

The argument in connection with this part of the award was, firstly, that the findings of the umpire were vitiated as there was total lack of evidence on which they could be based, and secondly that in any event, the umpire had no jurisdiction to award compensation to the Government in respect of counterclaim No. VI. The first part of the argument need not detain us as the finding that these vehicles formed part of reciprocal aid articles, the ownership in which vested in <ORG> and were therefore not U.S.A.S.S. was based on the agreement between the two Governments and the inventories produced before the umpire from which he could hold that they belonged to <ORG> from the date when the installations in which they were incorporated were relinquished by the U.S. forces, and that therefore, they could not form the subject-matter of sale-note 197 which related only to <ORG>. The second part of the argument, however, requires conside- ration. The question is whether the arbitration clause included. a dispute relating to compensation in respect of the said 291 vehicles unauthorisedly removed by the company. Cl. 13 of the General Conditions of Contract, quoted earlier, provides for reference to arbitration of all questions or disputes "arising under these conditions" or "in connection with this, contract".

Dr. <NAME> referred us to cl. 10 of these Conditions also but it is clear that it can in no sense apply to the dispute relating to, compensation. But the words "arising under these conditions"' and "in connection. with this contract" are undoubtedly wide and comprehensive. it is, nonetheless, a question whether the dispute as to compensation on the ground of unauthorised appropriation of these vehicles by the company falls within cl. 13. <CITATION> (1) the words "expenditure, in connection with election" used in s. 77 of the Representation of the People Act , 1951 were construed to mean "having to do, with". An arbitration clause wherein the words "in relation to or in connection with the contract" were construed not to contemplate a dispute raised by a contractor that he could avoid the- contract on the ground that it was obtained by a fradulent misrepresentation. (see <NAME> v. Bognor Urban District Coun- cil(2). But a claim for damages on the ground of negligence on. the part of the defendant in re-moving the plaintiff's furniture against a clause for due diligence in removing it was held to fall, within the arbitration clause. <ORG> <ORG> (3) Counsel conceded that a dispute as to the interpretation of sale-note 197 would fall under the arbitration clause.. If that is so, it must follow that the umpire was competent to decide whether the said 547 vehicles fell within the purview of the sale-note or not. If in determining that question he came to the conclusion that they did not, the obvious conclusion would be that the company was not entitled to take away 291 vehicles admittedly removed by it from the <ORG>. If the company did that, would the question as to the return or of compensation in lieu of such vehicles, to which it was not entitled under the sale, be a question which arises out of or in connection with the contract ? Counsel went as far as to say that the umpire in deciding the company's claim No. VI and the Government's counter- claim No. VI could decide that the company was not entitled to those vehicles, but could not take the next step either to direct the return of them or payment of compensation in lieu of those vehicles. In our view, such an argument cannot be accepted. The reason is that once it is found that he was competent to decide the dispute as to whether the said 547 vehicles were not the subject-matter of the sale and 291 of them were removed unauthorisedly, he must, to do justice between the parties in respect of disputes referred to him, order the company either to return them or to pay compensation for them. Since the first course was not possible after all these years, the second was the only and the obvious course. The dispute raised by the respondents that 291 vehicles were not included in the sale was: co-extensive with and connected with the dispute that the com--

(1) A.I.R. 1969 S.C. 288.

(3) [1947]2AllE.R.260.

(2) [1915] (3) K.B.167.

<ORG> was bound to return them if it was found that they were not covered by the sale. On this reasoning it is not possible to say that the umpire went beyond his jurisdiction either in rejecting the com<ORG>'s claim No. VI or in accepting the corresponding counter-claim No. VI of the respondents.

Contention 4 relates to 600 vehicles which had been taken out of <ORG> for operational purposes, but which the company claimed were part of the sale under sale-note 160. The umpire held (I that those vehicles having been taken out of the <ORG> for operational purposes did not fall within the sale, and (2) in the alternative, that the evidence disclosed that a substantial number of vehicles in operational use were delivered to the company even though strictly speaking it was not entitled to them as they were not lying in the, <ORG> on. July 10, 1946. The umpire further held that if some of them per chance were not handed over, the respondents had sufficiently compensated the company by handing over several non-operational vehicles from outside the depot to which the company-was not entitled. Counsel argued that this part of the award was vague and without any evidence to support it, and therefore, the umpire behaved in this respect more like aconcilliator than as an arbitrator.

Having held that sale-note 160 covered only those vehicles which were actually lying in Moran <ORG> on July 10, 1946, it was not incumbent on the umpire to decide the number of operational vehicles outside the depot. Consequently, if he was satisfied that even though the company was not entitled to the said 600 vehicles claimed by it, yet the authorities had delivered a substantial number of them, and for any deficiency, had also delivered non-operational vehicles, there would be no purpose in going into the details of vehicles delivered to the company. Even though, as the judgment of <ORG> discloses (para 223), there was evidence, both oral and documentary, that the company had collected a number of vehicles lying at places outside the <ORG>, and the vehicles so collected were recorded by the company, yet the company had withheld the production of those records. In view of these facts it is impossible to say that the umpire had acted without evidence, or that he behaved in the manner of a conciliator, or gave findings on conjectures and surmises.

Our interference was invited next on the question of ground rent on the ground that the amount of such rent was fixed by the umpire without any evidence. There is hardly any substance in this contention. The sites, on which the various depots were situated, were requisitioned by the <ORG> under the Defence of India Rules. The <ORG> had a statutory obligation, therefore, to pay to the owners of those sites compensation as provided by those Rules. Under the contracts of sale the company was, bound to pay to the <ORG> ground rent and other charges which the <ORG> in its turn was liable to pay. It is, therefore, not correct to say that the umpire could award only that amount which the <ORG> had actually paid and that the umpire should, therefore, have taken an account from the <ORG>. It was never the case of the company that the <ORG> had claimed ground rent higher than the compensation it was liable to pay.

The last objection was that the amount of costs awarded by the umpire to the respondents was disproportionate. It appears from the award-that the umpire fixed the amount of costs after considering the statements of expenses incurred by the parties for the hearing before him tendered by the respective counsel for the parties. Considering the huge amounts claimed by the parties, the volume of evidence, both oral and documentary, adduced by them, the number of days occupied in recording that evidence and in arguing the case, we are not prepared to say that the discretion which the umpire. exercised in the matter of costs was exercised in breach of any legal provision or unreasonably which can justify the Court's intervention.

In our view, none of the six contentions urged by counsel can be upheld. The result is that the appeal fails and is dismissed with costs.

<ORG> dismissed.


ORDER <NAME>, J.

1. These three petitions have arisen out of suits in ejectment brought by the same plaintiff who comes under the definition of a landlord under the Estates Land Act against his tenants. <ORG> instance (<ORG>) was of opinion that <ORG> had no jurisdiction to try the suits and that under the Estates Land Act, the plaintiff ought to have brought the suits in <ORG>. The learned <NAME>, therefore, ordered the plaints to be returned to the plaintiff for presentation to the proper <ORG>.

2. On appeal, the Subordinate Judge of Ellore held that under the saving clause to Section 153 of the Estates Land Act, the suits were cognizable by <ORG>. He set aside the District Munsif's orders and directed the District Munsif to take back the plaints, to restore the suits to his file and dispose of them according to law.

3. These Civil revision petitions have been filed praying for the reversal of the learned Subordinate Judge's orders in the suits. Under Order XLIII, Rule 1(a) of the Civil Procedure Code, an appeal lay to <ORG> from the District Munsif's order returning the plaint in each suit. Under Section 104 of the Civil Procedure Code, Clause 2, a second appeal is prohibited from orders so passed in appeal. Hence, the defendants have come before us by way of Civil revision petitions under Section 115 of the new Civil Procedure Code (which corresponds to the old Section 622).

4. Under Section 115, <ORG> has power to interfere if <ORG> has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted illegally or with material irregularity, in the exercise of its jurisdiction.

5. The learned Counsel for the plaintiff (respondent), Mr. <NAME>, has taken a preliminary objection to the hearing of these Civil revision petitions on the ground that the Subordinate Judge, in hearing and allowing the appeals against the <NAME>'s orders, neither wrongly clutched at jurisdiction, nor wrongly refused to exercise jurisdiction, that he acted neither illegally nor with material irregularity and hence Section 115 did not apply so as to give <ORG> jurisdiction to interfere in revision.

6. The decision of the preliminary objection thus raised is by no means free from difficulty. The leading case on the question of the powers of <ORG> to interfere under the old Section 622 is the Privy Council case of <NAME> v. <NAME> 11 C. 6; 11 I.A. 237. But in construing their Lordships' dicta in that case, <ORG>s and even the different <ORG> of the same <ORG> have not been is agreement.

7. In the case in <CITATION> 14 C.W.N. 703; 11 C.L.J. 426; 6 Ind. Cas. 549 decided by <NAME> and <NAME>, <NAME>., the learned Judges say as follows see page 707: "As pointed out by <NAME>, C.J., in <NAME> v. <NAME> 25 A. 509; A.W.N. (1903) 104 that decision" i.e., the decision of <ORG> in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237 "is an authority for the proposition that the words 'acted illegally or with material irregularity' do not comprehend a case or decision attacked merely on the ground that it is erroneous in law,--in that particular case, the erroneous decision upon a question of res judicata. The judgment of <ORG>, however, does not furnish any test for determining under what circumstances a Court may be said to have acted illegally or with material irregularity, nor is any general principle deducible from the numerous cases in the reports which are by no means easy to reconcile." Then the learned Judges go on to say that the phrase acted illegally or with material irregularity' is not limited to cases of procedure only but includes cases of decisions vitiated by an error so palpable as to lead to grave and manifest injustice."

8. But if the doctrine is thus enunciated so as to enable <ORG> to interfere in cases of grave and manifest injustice,' "it obviously leaves much room for divergence of judicial opinion." In the case of <NAME> v. <NAME> 25 A. 509; A.W.N. (1903) 104 two learned Judges held that they could interfere under Section 622 with an erroneous decision of the District Judge that a Barrister could be sued for the return of his fees if he did not appear for his client, whereas the third learned Judge (<NAME>, J.) held that Section 622 did not empower <ORG> to interfere with the lower Court's said erroneous decision, as the lower Court had jurisdiction over the suit and could not be said to have acted illegally or with material irregularity simply because it determined a legal question erroneously.

9. In the revision petitions before us, the Subordinate Judge could not be said to have had no jurisdiction to hear appeals against the <NAME>'s orders returning the plaints for presentation to the proper <ORG>. Assuming that his decision on the interpretation of the saving clause to Section 153 of the Estates Land Act is erroneous, he could not be said to have acted illegally or with material irregularity in the exercise of his jurisdiction though he might have decided erroneously, the question of law. However, as was said in <CITATION> 14 C.W.N. 703; 11 C.L.J. 426; 6 Ind. Cas. 549 above referred to, several Benches in the several High <ORG>s seem to have held that if the decision on the question of law is so erroneous as to have led to grave and manifest injustice, <ORG> had the power to interfere in revision notwithstanding the decision of <ORG> in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237. The boldest attempt made to minimise the effect of <ORG> decision was made in Badami kuar v. Dinu Rai 8 A. 11 1 (F.B.); A.W.N. (1886) 28 where <NAME>, J., went so far as to say that the words 'acted illegally' in Section 622 had the very same meaning as the words in Section 584, which empowered <ORG> to entertain a second appeal where the <ORG> below had in the exercise of its jurisdiction come to a decision which is "contrary to some specified law or usage having the force of law." It is unnecessary to set out the very numerous cases is which conflicting views have been pronounced on this question as to the scope of Section 622. I shall refer to only a few to indicate the irreconcilable conflict. In <NAME> v. <NAME> 30 C. 397; 7 C.W.N. 545 a Full Bench of <ORG> clearly said that the mere fact that the lower <ORG> had fallen into an error of law cannot give jurisdiction to <ORG> under Section 622 to interfere in revision. This Full Bench case has almost been ignored by some Division Benches of the Calcutta High <ORG> in later cases. In <NAME> v. <NAME> 31 M. 458 <NAME>, J., clearly held that the decree of the Judge of a lower <ORG> cannot be interfered with under Section 622 merely because the Judge had made a mistake in law. In <NAME> v. <NAME> 18 M.L.J. 249; 3 M.L.T. 262 <NAME>, J., also held similarly. In <NAME> v. <NAME> 1 C.W.N. 626 <NAME>, C.J., and <NAME>, J., held that when a <ORG> of first instance ordered a plaint to be returned for presentation to the proper <ORG> and the <ORG> of Appeal set aside such order, <ORG> had no jurisdiction to interfere with such appellate order under Section 622 of the Civil Procedure Code. Now the case of <NAME> v. <NAME> 1 C.W.N. 626 is almost exactly similar to the present revision petitions. In that case also, it was argued by the petitioner's <NAME> (Mr. <NAME>, afterwards <NAME>, J.,) that if too strict an interpretation be put upon <ORG> decision of <NAME> v. <NAME> 11 C. 6; 11 I.A. 237 there will be practically no remedy in cases of manifestly erroneous decisions pronounced by lower <ORG>s in cases where no appeal or second appeal lay. It seems also to have been argued that if <ORG> can interfere in revision where a <ORG>, against whose decision there is no appeal at all, acts without jurisdiction, <ORG> can also interfere where an Appellate court, (against whose appellate decision there is no second appeal) erroneously asks the <ORG>, of first instance to act without jurisdiction or not to act when the first <ORG> really has jurisdiction. But these contentions were overruled by their lordships in that case. I might add that though <NAME>, J. in a previous case reported at page 617 of the same volume, <NAME> v. Khetter Moni Dassi 1 C.W.N. 617 had expressed the view that Section 622 allowed <ORG> to interfere with gross and palpable errors of law committed by lower <ORG>s, he did not seem inclined to take the same lax view is the later case reported at page 623.

10. In <NAME> v. <NAME> 32 C. 146 where a District Judge confirmed the order of the Subordinate Judge returning the plaint for want of jurisdiction, <ORG> interfered in revision simply because the District Judge committed an error of law in confirming an erroneous decision of the Subordinate Judge as to the Subordinate Judge's jurisdiction. <CITATION> 26 M. 224; 12 M.L.J. 380 <NAME> and <NAME>, JJ., in the third sentence of their judgment thus formulate the objection of the respondent before them to their interference in revision in Civil Revision Petition No. 343 of 1900. "Civil Revision Petition No. 343 of 1900 does not lie by reason that the appeal did lie to <ORG> and that though the <NAME>, who passed the order appealed against, acted in the exercise of his jurisdiction with material irregularity, yet the order passed by the District Judge on appeal cannot be revised by this <ORG> under Section 622 of the Civil Procedure Code, though in the exercise of its appellate jurisdiction he (the District Judge) failed to set aside the order appealed against which was erroneous." Having thus stated the preliminary objection, their Lordships merely say that they overrule it. In a very recent case, Civil Revision Petition No. 612 of 1911 decided by <NAME>, J., in which [the learned Judge was pressed to set aside the order of a District Judge who in appeal had set aside the order of the District <NAME> returning the plaint, the following judgment was delivered: "I am clear that this petition does not lie under Section 115. There is no illegality or irregularity so far as it can see in the exercise of his jurisdiction by the District Judge. This Code allows only one appeal from the order of the <ORG> of first instance and I am not at liberty to admit a second. Dismissed with costs." Thus there seems to me a clear conflict between the decision in <CITATION> 26 M. 224; 12 M.L.J. 380 and that in the recent Civil Revision Petition No. 612 of 1911. I doubt the correctness of those decisions in which it has been held that the words 'acted illegally' in Section 115 would include erroneous decisions of law and not merely decisions in which by reason of erroneous procedure (such as shutting out of evidence or arguments), the party applying in revision was prejudiced in the trial of the case and I also doubt the correctness of those decisions which held that because the question of the jurisdiction of the <ORG> of first instance was involved in the erroneous decision of the Appellate <ORG>, <ORG> can interfere in revision with the erroneous decision of the Appellate <ORG> on the footing that the Appellate <ORG> itself acted without jurisdiction by pronouncing an erroneous decision on the question of the jurisdiction of the <ORG> of first instance:

11. As I am given to understand that owing to the passing of the Estates Land Act and to the conflicting views taken as to the jurisdiction of <ORG> over ejectment suits by landlords, numerous similar Civil revision petitions have either been filed or are likely to be filed in <ORG>, and having in view the conflict of decisions on the exact scope of the provisions of Section 115 of the Civil Procedure Code, I consider it desirable to refer the following questions for the decision of a Full Bench:

(1) What is the exact scope of the meaning of the words 'acted illegally' in Section 115 of the Civil Procedure Code? Has <ORG> power to interfere in any class of cases (and if so, which class), where a question of law is wrongly decided by the <ORG> whose decision is attacked in revision?

(2) Has <ORG> jurisdiction to interfere under Section 115 where <ORG> erroneously decides in the exercise of its admitted jurisdiction as <ORG>, that the Court of first instance was or was not competent (i.e., had or had not jurisdiction) to entertain a suit?

<NAME>

1 I agree.

2. These petitions coming on for hearing before <ORG>, the <ORG> expressed the following opinion on 30th August 1912.

Wallis, J.

3. The second question referred to us covers the present case, and I do not think it advisable to travel outside of it especially as the more general question has been considered by <ORG> of five Judges in <CITATION> 17 M. 410 (F.B.) and the decision of the majority appears to me to be binding upon the <ORG> as at present constituted. As regards the second question, I am of opinion that the case is not covered by the decisions of <ORG> and <ORG> in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237 and <CITATION> 17 M. 410 (F.B.) neither of which deals with errors of law affecting jurisdiction. I think that the High <ORG> is empowered under Section 115 to keep <ORG>s subordinate to it within the bounds of their jurisdiction and to see that they do not refuse to exercise it--functions discharged in England by means of the writs of prohibition and mandamus. No question of jurisdiction arose in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237 or, as it seems to me, was considered by their Lordships. That decision was considered by <ORG> of five Judges in <NAME> v. <NAME> 11 M. 220 where it was held by the majority that a Small Cause <ORG> Judge, who assumed jurisdiction owing to an error of law as applied to the facts found by him, acted without jurisdiction within the first part of the section. <NAME>, <NAME>, with whom <NAME>, <NAME> concurred, preferred to treat the third part of the section as applicable and held that it applied in cases where the lower <ORG> assumed or declined jurisdiction in consequence of some error of law or of some material irregularity in its proceedings and in no others. In the later <ORG> case in <CITATION> 17 M. 410 (F.B.) <NAME>, <NAME>, was of opinion that this was too narrow a construction and agreed with the majority that the third part of the section authorised interference when the decision of the lower <ORG> was perverse. In this case, too, <NAME>, <NAME> appears to have considered that all erroneous decisions as to jurisdiction would be covered by the earlier provisions of the section, but if this be not so, there is nothing to show that he would have regarded the third as inapplicable. <CITATION> 8 A. 11 1 (F.B.); A.W.N. (1886) 28 the majority of <ORG> were of opinion that the questions to which the present Section 115 applies were questions of jurisdiction only. <CITATION> 15 C. 47 the Subordinate Appellate <ORG> in dismissing a suit for want of jurisdiction under an error in law was held to have acted illegally in the exercise of its jurisdiction. The decision in <NAME> v. <NAME> 1 C.W.N. 626 the facts in which are on all fours with the present case, that the High <ORG>s could not interfere, was based on the authority which, as I have already said, does not appear to me to apply to errors in law as to jurisdiction.

4. <CITATION> 26 M. 224; 12 M.L.J. 380 which was also a case like the present, the <ORG>, overruled the objection that it could not interfere under the section but without giving reasons. In <NAME> v. <NAME> 32 C. 146 it was held that the lower Appellate <ORG> acted illegally in the exercise of its jurisdiction in affirming the decree of the <ORG> of first instance dismissing the suit for want of jurisdiction owing to an error of law. I am prepared to follow the decisions in support of the view already cited to hold in the case referred to us that the High <ORG> is empowered to interfere under the third part of the section. Cases of jurisdiction, of course, can only come under this part of the section if they do not come under the first or second parts and the contention has been raised before us that a Subordinate Appellate <ORG> acts without jurisdiction within the meaning of the section in deciding under an error of law that the <ORG> of first instance has jurisdiction and directing the latter to re-take the case on its file and dispose of it according to law. This contention is opposed to <NAME> v. <NAME> 1 C.W.N. 626 but the point was not argued there as it was conceded that this part of the section was inapplicable. There could be no doubt that a <ORG> of first instance, which wrongly assumes jurisdiction owing to an error of law, acts without jurisdiction. Similarly it may, I think, be said that an Appellate <ORG> has no jurisdiction to remit for trial to a lower <ORG> cases over which the latter has no jurisdiction and that if it does so under an error of law, it acts without jurisdiction within the meaning of the section. In either view, I answer the second question in the affirmative. I have not considered the propriety of interfering in the present case.

<NAME>, J.

5. These petitions arose out of three suits instituted by a land-holder to eject the tenant in each case in <ORG> of Tanuku. The defendants objected to the jurisdiction of the Munsif's <ORG> and contended that the suits should have been instituted before the Collector. The question of the proper <ORG> empowered to try the suits depended on the construction of Section 153 of the Estates Land Act. The District Munsif held that he had no power to entertain the suits and returned the plaints for presentation to the proper <ORG>. An appeal was presented against his order; the Subordinate Judge who heard the appeal put a different interpretation on Section 153 of the Estates Land Act and was of opinion that the plaints were rightly presented to the District Munsifs <ORG>. He passed the following order: "The Lower <ORG>'s order is, therefore, set aside with a direction to the District Munsif to take back the plaint, restore the suit to its file and dispose of the same according to law." The defendant applied to this <ORG> under Section 115 of the Civil Procedure Code to set aside the Subordinate Judge's order on the ground that the Munsif's view on the question of jurisdiction was right and that the Subordinate Judge was wrong. The petitions came on for hearing before <NAME> and <NAME>, JJ. The learned Judges holding that there was a conflict of judicial opinion on the question whether the Subordinate Judge could be held, in passing his order, to have exercised a jurisdiction not vested in him or to have acted illegally in the exercise of his jurisdiction and that there was a great diversity in the opinions of the Judges as to, the right interpretation to be put on the words "acted illegally" in Section 115 of the Civil Procedure Code, referred the following questions for the decision of a Full Bench.

(1) What is the exact scope of the meaning of the words acted illegally' in Section 115 of the Civil Procedure Code? Has <ORG> power to interfere in any class of cases (and, if so, which class) where a question of law is wrongly decided by the <ORG> whose decision is attacked in revision?

(2) Has <ORG> jurisdiction to interfere under Section 115 when <ORG> erroneously decides, in the exercise of its admitted jurisdiction as <ORG>, that the <ORG> of first instance was or was not competent (i.e., had or had not jurisdiction) to entertain a suit?.

6. The second question alone arose for decision in the petitions before the learned Judges who made the reference. The first question is very wide in its scope. It is doubtful whether it is possible, or desirable, if possible, to attempt an exhaustive definition of the expression 'acting illegally in the exercise of jurisdiction,' The question was considered by a Full Bench of five Judges of this Court in <CITATION> 17 M. 410 (F.B.). Their opinions were not unanimous. We considered it desirable in the circumstances to give our answer only to the second question referred for our opinion on this case and to abstain from dealing with the wider point raised in the first question.

7. So far as the second question is concerned, <NAME>, J., in a similar case, Civil Revision Petition No. 612 of 1911, held that there was no illegality or irregularity in the exercise of is jurisdiction by <ORG> in setting aside an order returning the plaint for presentation to the proper <ORG> and remanding the suit to the <ORG> of first instance for adjudication according to law. It was apparently not urged before the learned Judge that there was an exercise of jurisdiction not vested in the Appellate <ORG> at any rate he pronounced no opinion on that question. <CITATION> 1 C.W.N. 626 <NAME> C.J., and <NAME>, J., held the same view as <NAME>, J. and on the same grounds <NAME>, C.J., observed: "it is conceded also by the appellant's Pleader that the learned District Judge in doing what he did was clearly acting within his jurisdiction, and the point urged is this, that if he did anything, he committed an error in law alone." <NAME>, J., also considered only the question whether there was an illegal exercise of jurisdiction. He said: "it may seem anomalous that where a <ORG> acts without jurisdiction, it may be set right under Section 622 but where it directs another <ORG> to do so, its order is not open to revision under that section. But the anomaly, so far as cases like the present are concerned, has been removed by Section 646(6), which shows that the remedy in such a case, supposing the petitioner's contention to be right that the case was triable by the <ORG> of Small Causes, lies in the course prescribed by that section, and not in an application under Section 622." This observation would not apply where the question of jurisdiction does not arise on account of a doubt as to whether a case is of small cause nature or not. Section 646(b) or the corresponding section in the present Procedure Code would have no application, for instance, to the present case. In <NAME> v. Fateh Ali 32 C. 146 it was held that where <ORG>, disagreeing with the opinion of the <ORG> of first instance that it had no power to try the suit, directs it to do so, the High <ORG> could interfere under its revisional powers but the ground of interference was that the <ORG> acted illegally in holding that the <ORG> of first instance had jurisdiction. On the same ground of illegal exercise of jurisdiction, the Allahabad High <ORG> interfered in <CITATION> 8 A. 11 1 (F.B.); A.W.N. (1886) 28 where both the lower <ORG>s held that the <ORG> of first instance had no jurisdiction to try the suit and also the Calcutta High <ORG> in <CITATION> 15 C. 47. In Vishvanath Govind Deshmane v. Rambhat 15 B. 148, where the <ORG> of Appeal agreed with the first <ORG> that the latter had no jurisdiction, the Bombay High <ORG> held that the High <ORG> had power to interfere under Section 622 (Act XIV of 1882). The reason given was, in the words of the <ORG>, "The Subordinate Judge has refused to exercise jurisdiction which, if he is wrong, is by law vested in him, and we can examine his order to see if he is right in his refusal." It is not explained whether the District <ORG>, in holding that the Subordinate Judge had no jurisdiction, failed to exercise a jurisdiction vested in it (District <ORG>) or acted illegally in the exercise of its jurisdiction. <CITATION> 14 Ind. Cas. 544; 15 M.L.T. 409 which was decided by <NAME>, J. and myself, we held that where the first <ORG>, owing to an error of law, failed to exercise a jurisdiction vested in it and the Appellate <ORG> taking the same view of the law confirmed the order, the Appellate <ORG> must also be held to have failed to exercise a jurisdiction vested in it. But the point was not examined at length in the judgment. In <NAME> v. <NAME> 26 M. 224; 12 M.L.J. 380 it was held that if <ORG> fails to set aside an order of a <NAME> who acted with material irregularity in the exercise of his jurisdiction, the High <ORG> had power under Section 622 to set aside the Appellate <ORG>'s order; but it was not explained whether the reason was that the Appellate <ORG> must be held, in confirming the first <ORG>'s order, to have committed the same material irregularity as the first <ORG> or that the Appellate <ORG> must be taken to have failed to exercise a jurisdiction vested in it by not setting aside the first <ORG>'s order. So far it will be observed that all the cases, in which the High <ORG>s interfered to set aside an order of <ORG> relating to the question of the jurisdiction of the first <ORG>, have not proceeded on the ground that the Appellate <ORG> exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it. Apparently, the attempt to induce the High <ORG> to interfere was based in the arguments at the Bar in those cases on the ground that there was an illegal exercise of jurisdiction by the Appellate <ORG>. I cannot, therefore, but be diffident in arriving at the conclusion to which my reasoning has led me that in such cases the High <ORG> has power to interfere under the first part of Section 115 of the Civil Procedure Code (Section 622 of the repealed Code), that is, on the ground that the Appellate <ORG> has exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it. With all deference, I cannot but think that insufficient attention has been paid in the consideration of the High <ORG>s' powers under Section 115 to the true nature of the functions performed by <ORG>. It is not denied that if a <ORG>, by an error of law in deciding whether it had jurisdiction, exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it, the High <ORG> has power to interfere under Section 115 of the Civil Procedure Code and that its right of interference cannot be objected to on the ground that the <ORG> has jurisdiction to decide whether it has jurisdiction over the cause or not and that an erroneous decision on the question is a mere error of law which the High <ORG> cannot rectify according to the decision of <ORG> in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237. See Manisha Eradi v. Siyali Koya 11 M. 220 and Elston v. <NAME> 4 Q.B. 4; 3 B. & S. 509 ; 38 L.J. Q.B. 6; 19 L.T. 280; 17 W.R.52. What is contended is that though an error of the <ORG> regarding its own jurisdiction can be rectified, the mistake of <ORG> concerning the jurisdiction of the <ORG> of first instance cannot be set right under Section 115 of the Civil Procedure Code. It is argued that the Appellate <ORG> in an appeal from an adjudication of the first <ORG> concerning its jurisdiction merely decides whether that adjudication is right or wrong, that the matter before it is nothing more nor less than the order of the first <ORG> regarding its jurisdiction and that the Appellate <ORG> pronouncing its own decision on the question exercises no jurisdiction over the cause itself which was before the first <ORG> and that, therefore, the first part of Section 115 would be inapplicable. I am of opinion that this is an entirely wrong view of the matter. Order XLI, Rule 32 ( Section 577 of the old Code) enacts that "the judgment (of the Appellate <ORG>) may be for confirming, varying or reversing the decree from which the appeal is preferred." Section 107 , Clause (1) ( Section 582 of the old Code) provides: "Subject to such conditions and limitations as may be prescribed, <ORG> shall have power--(a) to determine a case finally, (6) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken." Clause (2) says: "Subject as aforesaid, the Appellate <ORG> shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on <ORG>s of original jurisdiction in respect of suits instituted therein." Section 108 extends the provisions of the Code relating to appeals "(a) from appellate decrees, and (6) from orders made under this Code or under any special or local law in which a different procedure is not provided." Order XLIII, Rule 2, mikes the rules of Order XLI applicable to appeals from orders. It is quite clear that the Civil Procedure Code has accepted and carried out the well established principle that an appeal is the continuation of the proceedings in the original <ORG>, that those proceedings are removed to the <ORG> of Appeal and that the proceeding in the Appellate <ORG> are in the nature of a re-hearing. In the case of second appeals, no doubt, the High <ORG> does not possess plenary powers of dealing with the case and it cannot be said in such cases that the cause is re-heard in full but this does not affect the general principles regulating the functions of <ORG> or the powers and du ties of a <ORG> of first appeal. See <NAME> v. <NAME> 21 W.R. Cr. 13 and In re Goomanee and Ors. 17 W.R. Cr. 59 where the functions of a <ORG> of Appeal in criminal cases are explained. <NAME> v. <NAME> 8 B. 28 relates to the functions of Appellate <ORG> in cases where a discretionary power is vested in a <ORG>. An Appellate <ORG> is entitled to take cognisance of facts which occurred subsequent to the decision of the first <ORG>. See <NAME> v. <NAME> 6 B. 113 and <NAME> v. <NAME> 9 W.R. 328 No doubt, there are express provisions restricting the powers even of a <ORG> of first appeal such as in the matter of the right to admit additional evidence, bat such restrictive provisions are mere rules of procedure similar to provisions relating to procedure in the <ORG> of first instance. In <NAME> v. <NAME> 28 M 91 at p. 95 <NAME>, J., observes: "When an appeal is preferred from a decree of <ORG> of first instance, the suit is continued in the <ORG> of Appeal and re-heard either in whole or in part, according as the whole suit is litigated again in the <ORG> of Appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the <ORG> of first instance." Later on, he says: "When an appeal is preferred, the <ORG> of Appeal is really seized of the whole suit though the relief given by it will be limited to the portion of the decree appealed against or objected to under Section 561 , Civil Procedure Code." The same principle is adopted with regard to the functions of the <ORG> of Appeal in England. Order LVIII, Rule 4, of the Judicature Act lays down that the <ORG> of Appeal has the same power of drawing inferences etc., as the High <ORG>, 36 and 37 Victoria, Chapter 66, Section 75 , enacts that for all purposes incidental to hearing and determination of any appeal within its jurisdiction and the management, execution and enforcement of any judgment or order made on such appeal and for the purposes of any other authority expressly given to the <ORG> of Appeal, it shall have all the powers, authority and jurisdiction vested in the High <ORG> of Chancery. Order XLI, Rule 33, enacts that the Appellate <ORG> should pass the order which the first <ORG> should have passed and has full power to pass such other order as may be necessary to do justice between the parties before it. <NAME>, the learned author of the article on Appeal and Error in the Cyclopedia of American Law and Procedure, Volume II, observes at page 516 that in its original and technical sense "an appeal was a proceeding, introduced into equity practice from the civil law, by which the whole cause was removed from a lower to <ORG>, and there tried de novo upon evidence newly introduced, being subjected to a new and final determination as if it had not been tried before, and without any reference to the conclusion of the inferior <ORG>. The object of the Common Law writs of error was to review and correct any error of law committed in the proceedings." The learned author points out that the appeal established by statute in most of the States of the United States has some of the characteristics both of the equitable remedy of an appeal and of the writ of error. In India, a first appeal is similar to the equitable remedy of an appeal in England. The Appellate <ORG> indeed has not got to and cannot re-hear the suit de novo upon fresh evidence and without any reference to the conclusion of the inferior <ORG>. The extent of its powers is fully described in the Civil Procedure Code. The provisions in the Code , that I have already referred to, conclusively show that its functions and powers are similar to those of the first <ORG>. When, therefore, a suit has been disposed of by the first <ORG> and an appeal is preferred, the <ORG> of Appeal is seized of the cause and has the powers and duties of the first <ORG>. It must, of course, be remembered that all appeals are not appeals in which the whole cause in the first <ORG> is brought before the Appellate <ORG>. While the cause still remains in the <ORG> of first instance, particular proceedings before it may be brought before the Appellate <ORG>. Such matters are set out in Section 104 and Order XLIII, Rule 1 of the Civil Procedure Code. For instance, if there is an appeal against an order appointing or refusing to appoint a Receiver, the suit in which the question arises remains in the hands of the first <ORG> and only the proceedings relating to the appointment of the Receiver are removed to the Appellate <ORG>; and the powers possessed by the Appellate <ORG>, similar as they are to those of the first <ORG>, would relate only to the proceedings removed to it. If the consequence of an order passed by the first <ORG> is to bring the proceedings there to a close, then the appeal to the Appellate <ORG> has the effect of bringing up the whole cause before it. Where a suit has been dismissed by the first <ORG> on a preliminary point and an appeal is lodged against the dismissal, the suit itself is before the <ORG> of Appeal. That this is the effect according to the contemplation of the <ORG> is clear from the provisions of Order XLI, Rule 23 and from Section 107 already referred to. The former provision gives the Appellate <ORG>, where the decision of the first <ORG> on a preliminary point is reversed, power, if it thinks fit, to remand the case, while the latter provision invests it with plenary powers to deal with the appeal in any other manner if it thinks fit to do so. It may determine the case finally, frame issues and refer them for trial and take additional evidence or require such evidence to be taken in the exercise of its ample discretion; and Clause (2) of Section 107 invests it with all the powers of the first <ORG>. A remand is to be made only if the Appellate <ORG> thinks fit to do so according to Order XLI, Rule 23. Notwithstanding, therefore, that the decision of the first <ORG> was confined to the adjudication of a preliminary point and the appeal is against that adjudication, the Appellate <ORG> is seized of the whole cause. When the <ORG> of first instance, holding that it had no jurisdiction to try a suit, returns the plaint for presentation to another <ORG> its order terminates the proceedings in the suit before it. The order is tantamount to a dismissal of the suit for all practical purposes: the object of returning the plaint is merely to enable the plaintiff to present the same instrument in another <ORG> and avoid the payment of fresh <ORG>-fees, a concession made to him on the ground that he has already paid <ORG>-fees for the complete adjudication of the cause. If there were no provision in the Code for the return of the plaint and the <ORG> dismissed the suit on the ground of want of jurisdiction, the appeal against the dismissal would be dealt with under Order XLI, Rule 23. In consequence of the concession made in plaintiff's favour allowing the return of the plaint to him, it was found necessary to provide specially for an appeal against the order. But all this does not alter the substantial character of the order returning a plaint on the ground of absence of jurisdiction in the first <ORG> or of the appeal against such order. The suit being at an end so far as the first <ORG> is concerned and nothing being left there, the appeal has the effect of removing the whole cause to the Appellate <ORG>. If the Appellate <ORG> decides that the first <ORG> has jurisdiction to try the suit, then it directs the latter <ORG> to proceed with the trial of the suit. This it is able to do only because it has cognizance of the suit itself. Having regard to Section 108 , making the provisions relating to appeals from decrees applicable to appeals from orders and to the fact that under Section 107 it has the power both to determine a cause finally and to remand a case, it is by no means clear to me that when the Appellate <ORG> comes to the conclusion that an order of the first <ORG> returning a plaint is wrong, it cannot determine the case finally itself. But, however that may be, I have no doubt that the Appellate <ORG> is seized of the cause whatever may be the mode prescribed for its disposal of the cause. There is no provision in the Code laying down what the Appellate <ORG> should do when it reverses any particular order of the first <ORG> against which an appeal lies. What is its duty in such a case? It appears to me the answer must depend on what duty will lie upon it as a <ORG> having cognizance of the cause when the particular order of the first <ORG> has been reversed. If the order of the first <ORG> put an end to the proceedings before that <ORG>, then I think that Section 107 gives the Appellate <ORG> plenary powers in dealing with the appeal. If the order is of an interlocutory character and the cause itself is still in the hands of the first <ORG>, the Appellate <ORG> will have power to pass such orders as would naturally follow from the reversal of the order appealed against. Order XLI, Rule 23, provided that <ORG> remanding a suit to the first <ORG> may direct what issue or issues may be tried in the case remanded. This shows that it has power to deal with the cause generally and that its authority is not confined to the decision of the correctness or otherwise of the adjudication on the preliminary point. In this case, the Subordinate Judge, after reversing the decision of the <NAME> on the question of jurisdiction, directed him to try the suit on the merits. How could he do so without taking cognizance of the suit itself? It was argued for the respondent that the authority to reverse the decision on the question of jurisdiction must be taken to give power impliedly to direct the first <ORG> to do what follows on the reversal. But would not the <ORG> have made specific provision giving the Appellate <ORG> any farther powers if the appeal itself was intended in the contemplation of the legislature to do no more than to enable the Appellate <ORG> to deal with the particular question decided by the <NAME>? In my opinion, the <ORG> considered it unnecessary to make any provision of the kind because of the general powers of <ORG> which are embodied in Section 107 of the Code. The Subordinate Judge, therefore, in passing the order of remand took cognizance of the cause. He did so on account of an error in the decision of the question of law on which the jurisdiction of the first <ORG> and his own jurisdiction to take cognizance of the case depended. This view would obviate the anomaly pointed out by <NAME>, J., in <NAME> v. <NAME> 1 C.W.N. 626. Section 115 was clearly intended to enable the High <ORG> to exercise its powers of revision where any question of jurisdiction either of the first <ORG> or the Appellate <ORG> was concerned; and if we bear in mind the nature of the powers and functions of a <ORG> of appeal, there would be no difficulty in giving effect to the object of the section. I am, therefore, of opinion that the High <ORG> has power to rectify the erroneous decision of the Appellate <ORG> under the first part of Section 115 , i.e., on the ground that the Appellate <ORG> in this case exercised a jurisdiction not vested in it in holding that the <NAME> ought to have tried the suit on the merits and in directing him to do so.

8. In the view I have taken of the case, it is unnecessary for me to consider whether <ORG> can be said to have acted illegally in the exercise of its jurisdiction in directing <ORG> to take cognizance of the suit and to adjudicate on the merits. Great and almost irreconcilable diversity of opinion has prevailed with respect to the interpretation to be put on the word 'illegally,' <ORG> in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237 decided that it was not every error of law which would justify <ORG> in interfering under Section 115 . But their Lordships did not proceed to state whether any and what error of law would amount to acting illegally in the exercise of jurisdiction. The error which <ORG> rectified in the case before their Lordships related to the finding of the lower <ORG> on a question of res judicata. A wrong decision on such a question would lead to a fresh adjudication between the parties but need not necessarily result in a failure of justice. Whether their Lordships meant no more than that an error which need not lead to a failure of justice would not be a good ground for interference, it is difficult to say. <ORG> have sometimes laid down that gross and palpable errors leading to grave and manifest injustice may justify interference consistently with the decisions of <ORG>. <CITATION> 14 C.W.N. 703; 11 C.L.J. 426; 6 Ind. Cas. 549 and <NAME> v. <NAME> 1 C.W.N. 617. <NAME>, J., indeed went further and held the opinion that any error which could be rectified in second appeal would also be a proper ground for interference under Section 115 of the Civil Procedure Code. <CITATION> 8 A. 11 1 (F.B.); A.W.N. (1886) 28. This is not reconcilable with the decision of <ORG>; see <NAME> v. <NAME> 30 C. 397; 7 C.W.N. 545; <NAME> v. <NAME> 30 C. 397; 7 C.W.N. 545; <NAME> v. <NAME> 18 M.L.J. 249; 3 M.L.T. 262. We are, of course, bound to presume that <ORG> had full regard to the history of the legislation on the point, including the facts that Section 622 of Act VII of 1877 did not contain the words "or to have acted in the exercise of its jurisdiction illegally and with material irregularity" and that these words were inserted by Section 92 of the Amending Act XII of 1879. It appears to me to be quite possible that what their Lordships meant to lay down was that the object of the amended section was to confer a discretionary power on <ORG> to correct manifest injustice brought about by palpable errors and that <ORG> should not interfere on the mere ground of an error of law in the decision of the lower <ORG>s. The powers conferred on <ORG> under Section 115 are similar to those possessed by <ORG>s in England to prevent injustice by the writs of certiorari, prohibition and mandamus. I do not propose to review the decisions which have attempted to place a meaning or no meaning on the expression "acting illegally" as I am prepared to hold that this <ORG> has power to interfere under the first part of Section 115 , But it may be taken to be well-established that the decision of <ORG> will not justify the refusal to give any effect to the words "acting illegally" and that it would not be right to confine the right to interference to cases of irregularity in procedure where the first part of the section would not be applicable. <CITATION> 17 M. 410 (F.B.) Collins, C.J., <NAME>, J., and <NAME>, J., held that a perverse decision on a question of law or procedure, that is, a conscious departure from some rule of law or procedure, would amount to acting illegally or with material irregularity. <NAME>, J., held that if the <ORG> itself took a point of law in appeal without affording the parties an opportunity of proving what was necessary to meet it, that would be an irregularity within the meaning of Section 622 and that an inadvertent admission of an appeal that is time-barred would be an illegality within the section. <NAME>, J., was of opinion that interference under the section should be confined to cases where the illegality or irregularity is such as might occasion a substantial failure of justice. I do not think that the case can be taken to have laid down an exhaustive definition of the causes which would justify an interference under the section. Cannot an error of law, which makes the <ORG> confer jurisdiction on a subordinate <ORG>, be taken to amount to acting illegally in the exercise of jurisdiction?" Such an error is of the most serious kind affecting what is regarded as the vital point in all litigation. I should be disposed, if necessary, to say that an erroneous holding on such a point would amount to acting illegally in the exercise of jurisdiction". But, I think it is unnecessary to place reliance on the latter part of Section 115 to justify the interference of <ORG> in such a case. My answer to the second question referred to <ORG> is in the affirmative for the reasons given above.

<NAME>, J.

9. In the order of reference to the Full Bench, I have set out my reasons for doubting the correctness of the decisions which have shown an inclination to hold.

(a) that the words acted illegally" in the old Section 622 [new Section 115 ], Clause (c) might include cases of mere erroneous decisions on questions of law and;

(b) that if the erroneous decision of law related to the question of the jurisdiction of a <ORG> other than that of the <ORG> which gave the erroneous decision, it might be even brought under Clauses (a) and (6) of Section 115 , which use the words to have exercised a jurisdiction not vested in it by law' and "to have failed to exercise a jurisdiction so vested".

2. My doubts have been only confirmed by the arguments advanced before <ORG>. Section 115 seems to me to permit <ORG> to interfere only on three specific grounds, viz:

(a) where the Court whose decision is sought to be revised has exercised a jurisdiction not vested in it by law;

(b) where it has failed to exercise a jurisdiction so vested, or

(c) where it has acted in the exercise of its jurisdiction illegally or with material irregularity.

3. Now, in the present cases, <ORG> had jurisdiction and was bound to hear the appeal preferred to it from the order of the District <ORG> returning the plaint to be presented to the proper <ORG>. The party aggrieved by the District <ORG>'s order was entitled, under Order XLIII, Clause (a), to appeal to <ORG>. The Appellate <ORG> was bound in the exercise of its jurisdiction to come to a conclusion whether the <ORG> was right or wrong in returning the plaint to be presented to another <ORG>. To arrive at either conclusion clearly involves the arriving at a finding as to the jurisdiction or want of jurisdiction in the District <ORG> to try the suit himself. I am perfectly clear that Clauses (a) and (6) of Section 115 can only apply to the jurisdiction of the <ORG> whose order or decree is sought to be revised to pass such order or decree and not to its decision on the jurisdiction of some other <ORG>. I entirely agree with the observations of <NAME>, C.J. in the case of <NAME> v. <NAME> 1 C.W.N. 626 on this point and of Mr. Justice <NAME> in the case quoted in my order of reference. The argument that as every <ORG> has jurisdiction to decide as a preliminary question its own jurisdiction before going into the other questions in the case, Clauses (a) and (6) of Section 115 would become unmeaning and useless, does not in the least impress me as creating any difficulty, for, the revising <ORG> doss not and need not deal with the preliminary opinion of the revised <ORG> giving itself jurisdiction but with the decree or order of the revised <ORG> which was passed after it erroneously gave itself jurisdiction and which decree or order was really passed without jurisdiction, though the revised <ORG> might have erroneously thought that it had jurisdiction. Whether the revised <ORG> considered at all the question whether it had jurisdiction or ignored the point altogether, the revising <ORG> can come to its own conclusion and set aside the decree or order passed without jurisdiction.

4. I also feel great difficulty in following the argument that where <ORG> deals with an appeal from an order of the <ORG> returning a plaint to be presented to the proper <ORG> and comas to an erroneous decision, it (<ORG>,) wrongly gives itself or with holds from itself jurisdiction over the trial of the suit, simply because its order decides that the <ORG> has, or has not, jurisdiction to try the suit.

5. I think that the <ORG> case in <NAME> v. <NAME> (I) followed by the Full Bench of the High <ORG> in <CITATION> 17 M. 410 (F.B.) is binding on us, that these decision, if loyally followed, do not empower us to interfere in revision with orders and decrees of the lower <ORG>s which merely involve an erroneous decision of law (whether the law relates to a question of res judicata, as in the <ORG> case or to the jurisdiction of some other <ORG> as in this case) and that while we may be reasonably astute in trying to get round precedents if parties would be left entirely remediless otherwise, we could not get over the plain implications of the <ORG> decision. Especially in cases of orders passed in matters which are really or substantially of an interlocutory character and which leave room for parties to come in the regular course before us at later stages, should we refuse to clutch at revisional jurisdiction. In the present case, the lower <ORG>'s decision as to the <ORG>'s jurisdiction, assuming it for argument's take to be erroneous, can be set aside when the matter is brought before us on second appeal after the <ORG> decides the suit in obedience to the Subordinate Judge's appellate order now sought to be revised.

6. I shall further make a short reference to some of the latest cases before concluding. In <NAME> v. <NAME> 22 M.L.J. 136; (1911) 2 M.W.N. 257; 10 M.L.T. 549; 12 Ind. Cas. 173 it was held that the District Munsif's order refusing to allow amendment of a plaint cannot be revised under Section 115 . <CITATION> 39 C. 473; 15 Ind. Cas 547 an erroneous decision as to limitation was held not revisable. <CITATION> . 16 C.W.N. 424; 14 Ind. Cas. 627 the refusal to frame and try a requisite issue was held revisable. In <NAME> v. <NAME> 12 Ind. Cas. 138 <NAME>, J., refused to interfere in revision where the lower Court had misconstrued Section 87 of the Negotiable Instruments Act.

7. In the result, I would give the following answer to the questions referred to the Full Bench. On the first question, the words "acted illegally" mean giving a wilfully perverse decision on a question of law as stated in <CITATION> 17 M. 410 (F.B.) and not a mere erroneous decision on a question of law. On the second question, I hold that the erroneous decision of <ORG> on the question of the jurisdiction of the first Court does not come under any of the three Clauses (a), (b) and (c) of Section 115 , that <ORG> cannot, by any reasonable use of language, be held in such a case to have exercised a jurisdiction not vested in it (<ORG>) by law or to have failed to exercise a jurisdiction so vested (in itself) and that according to the cases in <NAME> v. <NAME> 11 C. 6; 11 I.A. 237 and <CITATION> 17 M. 410 (F.B.) it cannot be said to have acted illegally or with material irregularity in the exercise of its jurisdiction.

9. These petitions coming on for final hearing before <NAME> and <NAME>, JJ., the Court delivered the following Judgment

10. The suit is brought by the plaintiff, a 'landholder', as defined in the Madras Estates Land Act, to eject the defendant who is alleged in the plaint to be a tenant of old waste let into possession before the Act came into force. The question is whether <ORG> have jurisdiction to entertain such suits. It is rightly conceded they have no jurisdiction if such suits could be brought before the Collector. The defendant is, according to the plaintiff, a non-occupancy tenant. Under Section 157 , a suit to eject him may be brought before a Collector for the reasons given in that section. The last clause provides that nothing in the section shall affect the liability of a non-occupancy ryot to be ejected on the ground of expiry of the term of a lease granted before the passing of Act. The respondent's Pleader contends that this provision shows that the section itself does not apply and, therefore, this suit cannot be brought before a Collector. If that is so, we see no other section which gives aright of suit. Section 157 , on which the Pleader relies, only states that a tenant of old waste can be ejected as stated therein. That section does not limit the scope of Section 153 . We must, therefore, disallow this contention, set aside the order of the Subordinate Judge and restore that of the District Munsif with costs in this and the lower <ORG>.


JUDGMENT <NAME> and <NAME>, JJ.

1. The plaintiff brought this suit for the recovery of possession of a turn of worship in a certain temple for eight days in the month from the 13th to the 20th by virtue of a usufructuary mortgage from the mother and guardian of defendants Nos. 3 and 4, on the allegation that he had been dispossessed of the same by the manager of the defendant No. 2, the Raja of Puri, who is supporting the claim of defendant No. 1. The defendant No. 1 admits that the grand-father of defendants Nos. 3 and 4 was the original sebak, but says that he had in 1865 made a gift of this turn of worship in favour of his (defendant No. l's) father, and that during his minority plaintiff had been employed as a khatnihar, or paid servant, on his behalf and used to pay him a certain amount of money every year.

2. Defendants Nos. 3 and 4 did not contest the plaintiff's claim, but both defendants Nos. 1 and 2 did on various grounds. The <ORG> of first instance decreed the suit for recovery of possess <NAME>, but the learned Subordinate Judge has dismissed the same. It is contended in second appeal that the learned Subordinate Judge is wrong.

3. In the first place, the learned Subordinate Judge finds that the usufructuary mortgage-bond is not proved, because the evidence is not in conformity with the requirements of Section 59 of the Transfer of Property Act and Section 69 of the Evidence Act.

4. A turn of worship is not an interest in immovable property: see <NAME> v. <NAME> (1878) I.L.R. 4 Calc. 683. Section 59 of the Transfer of Property Act, which is applicable to mortgages of immovable property only, has therefore no application. Then again the document in question was executed in 1879, three years before the Transfer of Property Act came into force, and under Section 2 , Clause (c), the Act had no application. There is no other law which required that a document like the one in question should have been attested by witnesses.

5. Then the learned Subordinate Judge says: " No doubt the plaintiff was allowed to perform the debsheba from 13th to 20th of every month without a hitch, but that, in my opinion, does not create any right in plaintiff's favour, since the plaintiff has not been able to prove satisfactorily that he was doing the sheba from the 13th to 20th of every month as a shebait." We are unable to follow the reasoning of the learned Subordinate Judge. The plaintiff claims as the mortgagee of a shebak and not as a shebak; if he had possession as such mortgagee, that would be quite sufficient to make out a primd facie title as such mortgagee. In the case of <NAME> v. <NAME> (1878) I.L.R. 4 Calc. 683 it was held that the plaintiff who had acted as shebait for 10 years had acquired a complete title against the defendants who had not sued to oust him within six years under Article 120 of the second Schedule to the Limitation Act . Although the learned Subordinate Judge finds that he had no doubt the plaintiff had held possession for over 20 years, he distinguishes this case because the period was not 10 years.

6. Then the learned Subordinate Judge says: "It does not lie in the mouth of the defendant No. 2 to set up the right and possession of No. 1 defendant's father, <NAME>, since the <NAME>'s predecessor admitted plaintiff's possession by Exhibit 2;" and in the next sentence "Exhibit 2 does not show that plaintiff's possession or his over-right was ever admitted, since it distinctly mentioned that plaintiff was in possession on behalf of defendants Nos. 3 and 4." As the plaintiff claims as mortgagee only, the possession claimed by him in-1880 must have been as mortgagee only, and if that possession was recognised, that possession could not now be impeached by defendant No. 2 or his manager.

7. The plaintiff is himself one of the recognised shebaks on other days, and if in the case of such a shebak, on the acquisition of an additional turn of worship the ceremony of shariti be at all necessary, it is difficult to see how after undisputed possession for 20 years, and express recognition by or on behalf of defendant No. 2, the question can be raised in the present case. Then again, although the learned Sub-ordinate Judge finds in the early part of his judgment that plaintiff was undoubtedly in possession of the sheba from the 13th to the 20th of every month, in a later part he says it was for the plaintiff to prove that the turn of worship of defendants Nos. 8 and 4 was from the 13th to the 20th, and in conclusion finds the second issue against the plaintiff.

8. The judgment of the learned Subordinate Judge is a curious combination of bad Law and worse reasoning, and we have no hesitation in setting aside the same. As the judgment is full of contradictions, it is difficult to make out what has been found for, and what found against, the plaintiff. The case must, therefore, be remanded to the District Judge to try it himself. Costs to abide the result.