ငြင်းချက်အကြောင်း[ ၄ ]

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ငြင်းချက်အကြောင်း[ ၄  ]

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Janki Das and Another

               VS

Kalu Ram and Another

Date of Decision: Jan. 20, 1936

Acts Referred: Civil Procedure Code, 1908 (CPC) - Order 14 Rule 2

Citation: AIR 1936 Patna 250

Hon'ble Judges:  Courtney-Terrell, C.J

Bench: Division Bench

အမှုတွင်ဥပဒေပြဿနာနှင့်စပ်လျဉ်းသောပဏာမငြင်းချက်ကိုဦးစွာကြားနာဆုံးဖြတ်ရန်သင့်၊မသင့်အဆုံးအဖြတ်ပေးရာတွင်အမှုတမှုကိုတပိုင်းတစစီခွဲ၍စစ်ဆေးရန်မသင့်ဟူသောယေဘုယျမူနှင့်ကွဲလွဲသောသီးခြားပြဌာန်းချက်ဖြစ်သည့်အမိန့်၁၄၊နည်း၂ပါကောင်းမြတ်သည့်ပြဌာန်းချက်တို့ကိုညီညွတ်မျှတစွာပေါင်းစပ်နိုင်ဖို့လိုသည်။ဥပဒေပြဿနာတရပ်အပေါ်အဆုံးအဖြတ်ပေးလိုက်ခြင်းကြောင့်အကြောင်းခြင်းရာများကိုစုံစမ်းရန်လိုအပ်တော့မည်မဟုတ်သည့်အမှုတွင်အမှုသည်တဦးကတဖက်အမှုသည်အားသက်သေခံချက်များကိုဖော်ထုတ်ရာ၌အချိန်ကြာမြင့်စေခြင်းဖြင့်မတော်မတရားဖြစ်စေမှုကိုတားဆီးနိုင်ရန်အလို့ငှါနည်း၂ကိုပြဌာန်းထားခြင်းဖြစ်သည်ဟုခုံရုံးကအောက်ပါအတိုင်းမြွက်ဆိုသည်-

[ 6. The fact is that some harmony has to be observed between the general principle that it is undesirable to try cases piecemeal and the specific and wholesome provision of Order 14, Rule 2, Civil P.C., which is for the purpose of preventing the injustice of a party being able to force his opponent to go at great length into evidence when the simple decision on a point of law might render the investigation of the facts unnecessary.]

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အထက်ပါစီရင်ထုံးသည်

1951 BLR ( H C ) 110 ( 112 )

CIVIL REVISION.

Before  U On Pe, J.

IBRAHIM MOHAMED AND ONE (APPLICANTS)

                  V.

MAUNG HLA PE (a) ABDUL RAZAK (RESPONDENT).*

1950 Nov 30

အမှုတွင်စီရင်ထုံးစာမျက်နှာ-၁၁၂၌၊တရားဝန်ကြီးဦးအုန်းဖေရည်ညွှန်းလိုက်နာသောစီရင်ထုံးဖြစ်ပါသည်။

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1951 BLR ( H C ) 110 ( 112 )

CIVIL REVISION.

Before  U On Pe, J.

IBRAHIM MOHAMED AND ONE (APPLICANTS)

                  V.

MAUNG HLA PE (a) ABDUL RAZAK (RESPONDENT).*

1950 Nov 30

အမှု၌ဥပဒေပြဿနာနှင့်စပ်လျဉ်းသောပဏာမငြင်းချက်ကိုဦးစွာကြားနာဆုံးဖြတ်ရန်သင့်၊မသင့်အဆုံးအဖြတ်ပေးရာတွင်အမှုတမှုကိုတပိုင်းတစစီခွဲ၍စစ်ဆေးရန်မသင့်ဟူသောယေဘုယျမူနှင့်ကွဲလွဲသောသီးခြားပြဌာန်းချက်ဖြစ်သည့်အမိန့်၁၄၊နည်း၂ပါကောင်းမြတ်သည့်ပြဌာန်းချက်တို့ကိုညီညွတ်မျှတစွာပေါင်းစပ်နိုင်ဖို့လိုသည်။ဥပဒေပြဿနာတရပ်အပေါ်အဆုံးအဖြတ်ပေးလိုက်ခြင်းကြောင့်အကြောင်းခြင်းရာများကိုစုံစမ်းရန်လိုအပ်တော့မည်မဟုတ်သည့်အမှုတွင်အမှုသည်တဦးကတဖက်အမှုသည်အားသက်သေခံချက်များကိုဖော်ထုတ်ရာ၌အချိန်ကြာမြင့်စေခြင်းဖြင့်မတော်မတရားဖြစ်စေမှုကိုတားဆီးနိုင်ရန်အလို့ငှါနည်း၂ကိုပြဌာန်းထားခြင်းဖြစ်သည်ဟုတရားဝန်ကြီးဦးအုန်းဖေကအိန္ဒိယစီရင်ထုံးတရပ်ကိုလိုက်နာ၍အောက်ပါအတိုင်းဆုံးဖြတ်သည်-

[ Held: That under Rule 2 if the Court is of the opinion that the case or any part of it may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. 

In deciding the question  as to whether the Court should grant or refuse a prayer to try a preliminary issue on a point of law, some harmony is to be observed between the general principle that it is undesirable to try a case piece-meal and the specfic and wholesome provisions of Order 14, Rule 2 of the Code of Civil Procedure which have been enacted for the purpose of preventing the injustice of a party being able to force his opponent to go at great length into evidence when the simple decision on a point of law might render the investigation of the facts unnecessary.

Jankie Das  and another  v. Kalu  Ram and another, A.I.R. (1936) Pat. 250. followed. ]

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A.I.R. 1954 Pepsu 9

(1953) 04 P&H CK 0010

High Court Of Punjab And Haryana At Chandigarh

Case No: C.R.No.232 of 1952

Sher Singh Kahan Singh and Another -APPELLANT 

                            Vs.

S. Ajmer Singh and Others- RESPONDENT

Date of Decision: April 23, 1953

Equivalent Citation = A.I.R. 1954 Pepsu 9.

Hon'ble Judges: Teja Singh, C.J

Bench: Single Bench

Advocate: S. Baldev Singh, for the Appellant; Lachhman Dass, for the Respondent

Final Decision: Allowed

အမှု၌တရားသူကြီးချုပ် Teja Singh, C.J ကအောက်ပါအတိုင်းသုံးသပ်ဆုံးဖြတ်သည်-

[ 3. The other objection raised by Mr. Lachhman Dass is that even if the Court holds that the decision of the Supreme Court regarding the genuineness of the will is res judicata between the parties it cannot finish the case because the Plaintiffs in order to substantiate their claim for possession of the said property will have to prove that one of them was the collateral and the other the Gurbhai of the deceased and for this evidence shall have to be taken.

This is no doubt correct but Rule (2) is not confined to those cases in which determination of issues of questions of law is sufficient by itself to conclude the case. 

The words of the Rule are:

Where issues both of law and fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed " of on the issues of law only it shall try those issues first....

The important words are "any part thereof" and since my opinion is that the decision of the legal issues will obviate the necessity of the parties adducing evidence to establish or to rebut the execution of the will & the rule lays down I that in a case of this kind the Court "shall" try the legal issues first the Subordinate Judge was wrong in rejecting the Plaintiffs" above mentioned prayer.

4. The result therefore is that the revision petition is accepted, the order of the trial Court " as set aside and it is directed that issues Nos.5 and 6 should be decided first and the determination of the other issues should be postponed "till the determination of the said issues. The Respondents will pay the Plaintiffs" costs.

Parties counsel have been directed to cause their respective clients to appear before the trial Court on the 27th April. ]

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Partap Singh Kairon vs Gurmej Singh 

on 10 March, 1958

Equivalent citations: AIR1958P&H409, AIR 1958 PUNJAB 409, 60 PUN LR 282 ILR (1958) PUNJ 1776, ILR (1958) PUNJ 1776 

Sher Singh Kahan Singh v. Ajmer Singh, AIR 1954 Pepsu 9 (L)

JUDGMENT

A.N. Bhandari, C.J.

အမှု၌၊တရားသူကြီးချုပ် A.N. Bhandari, C.J.ကစီရင်ချက်အပိုဒ်-၅၊၆၊၇၊၈၊၉တွင်အောက်ပါအတိုင်းအစချီဖော်ပြသည်-

[ 5. In view of the pleadings of the parties the Election Tribunal framed a number of issues, including issues Nos. 3 and 8 which were in the following terms:

"3. Is it competent for the petitioner to raise any objection at this stage that the nomination paper filed by Santa Singh should not have been rejected by the Returning Officer? Was the same improperly rejected?

8. Is a lambardar a person in the service of Government under Section 123(7) of the Representation of the People Act, 1951?"

6. S. Partap Singh stated that these two points should be disposed of as preliminary points in accordance with the provisions of Rule 2 of Order 14 of the Code of Civil Procedure as they would substantially dispose of the whole action. 

The Election Tribunal declined to accede to this request.

7. S. Partap Singh has now presented a petition under Article 227 of the Constitution of India and Section 151 of the Code of Civil Procedure in which he prays that the election petition filed by S.Gurmej Singh may be dismissed without its trial on facts and merits and that the order of the Election Tribunal declining to decide the preliminary questions of law be quashed. 

This petition has come up for hearing before us and has been argued with conspicuous ability by Mr. C. K. Daphtary on behalf of the petitioner and Mr. Anand Sarup on behalf of the respondent.

8. Three questions arise for decision in the present case, namely (1) Are the provisions of Rule 2 of Order 14 of the Code of Civil Procedure mandatory? (2) Can the case or any part thereof be disposed of on issues Nos. 3 and 8? and (3) If the answers to the first two questions are in the affirmative have any grounds been made out which would justify interference by this Court under Article 227 of the Constitution?

9. Rule 2 of Order 14 of the Code of Civil Procedure is in the following terms:

"2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try these issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined". ]

စီရင်ချက်အပိုဒ်-၁၁တွင်အောက်ပါအတိုင်းသုံးသပ်သည်-

[ 11.I regret, with all respect to the very learned Judges on whose opinion the above argument is based, that I am unable to concur in the view that even if a case or a part thereof can be decided on a preliminary point of law the Court has a discretion to say that it shall not be so decided. 

Rule 2 provides that if the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only it shall decide those issues first. 

Where the word "shall" is used in a statute the presumption is that its use is imperative and not merely directory, particularly when it is addressed to a Court or a public servant and when a right or benefit depends on its imperative use.

Indeed, it has been held that in such circumstances even the expression "may" may acquire the meaning of the expression "shall". 

There is nothing in the context or manifest purpose of the rule to indicate that the Legislature did not intend to use the word "shall" appearing in Rule 2 as a word of command.

It seems to me therefore that when the Court is of opinion that an objection raises a serious question of law which, if decided in favour of the party objecting, would dispense with any further trial or at any rate with the trial of some substantial issue in the action, it has no option but to decide that issue first: Udmi Ram Ram Sarup v. Ghasi Ram Sa-khan Lall, AIR 1933 All 753 (K); Sher Singh Kahan Singh v. Ajmer Singh, AIR 1954 Pepsu 9 (L); 162 Ind Cas 486: (AIR 1936 Pat 250)(H-I): P. C Gangulee v. Kadhuri Devi, AIR 1952 Pat 281 (M).

It has discretion to determine whether the case or any part thereof can or cannot be disposed of on issues of law only: T. Ganapathia Pillai v. Somasundaram Pillai, AIR 1950 Mad 213 ( N )

It may hold, for example, that the objection in point of law is not clear and explicit, or that the allegation wears a doubtful aspect, that it raises a mixed question of law and fact, or that the matter is one which by reason of the obscurity cither of the facts or of law ought to be decided at the conclusion of the trial, or that the facts are in dispute, or that a vital and undetermined question of fact is presented.

In such a case the Court may decline to determine the points of law as points of law. If, however, clear-cut issues of law are presented and there are no matters on which further light would be thrown at the trial and the decision on the points of law will substantially dispose of the whole or a part of the action, it has no discretion in the matter. 

It has discretion indeed to determine whether the case or any part thereof can or cannot be disposed of on issues of law only, but if it finds in the exercise of its own honest judgment and discretion that it can, it must decide those issues first.

It cannot decline to decide those issues on extraneous grounds, for example that piecemeal decision of suits is not desirable or that the Representation of the People Act, 1951, requires that election petitions should be disposed of expeditiously. 

The Court has discretion to determine whether the occasion for the exercise of the power has arisen, but if it holds that the occasion has arisen, it has no discretion to decline to exercise that power (Maxwell on Interpretation of Statutes, Tenth Edition, page 249).

This conclusion flows from the commonsense principle that where power is conferred on a Court or tribunal and its exercise is made mandatory on the existence of certain conditions, and those conditions exist in fact, it has no discretion as to whether, in good faith or otherwise, the power shall be exercised. I am of the opinion that the provisions of Rule 2 are mandatory and that the only discretion left to the Court is to form and express an opinion as to whether the case can be disposed of on the issues of law (AIR 1952 Patna 281 (M), 162 Ind Cas 486 : (AIR 1936 Pat 250) (H-I), AIR

1933 All 753 (K), AIR 1954 Pepsu 9 (L)). The opinion must, however, be expressed on reasonable material (162 Ind Cas 486): (AIR 1936 Pat 250) (H-I). 

The Tribunal has not said in the present case that these two issues are not issues of law or that their decision will not put an end to the case. ]

တရားမကျင့်ထုံးဥပဒေပုဒ်မ၁၁၅ပါပြင်ဆင်မှုစီရင်ပိုင်ခွင့်အာဏာကျင့်သုံးခြင်းနှင့်ပတ်သက်၍စီရင်ချက်အပိုဒ်-၂၅၊၂၆၊၂၇၊၂၈၊၂၉တို့တွင်အောက်ပါအတိုင်းသုံးသပ်ပြီးဆုံးဖြတ်သည်-

[ 25. Mr. Anand Sarup has invited our attention to certain authorities in support of the proposition that this Court should reirain from interfering under Section 115 of the Code of Civil Procedure or Article 227 of the Constitution when the trial Court fails to decide a preliminary question of law under Rule 2 of Order 14 of the Code of Civil Procedure. 

The authorities cited by him do not, however, appear to be strictly relevant. The first authority is reported as AIR 1934 All 986 (J). 

In this case a Division Bench of the Allahabad High Court held that the refusal of the Court below to take up the question of law first is not a separate and distinct proceeding the termination of which amounts to a case having been decided under Section 115 of the Code of Civil Procedure. In other words the petition for revision was dismissed on the short ground that no revision was competent.

In R. N. Lines v. All India Spinners Association, AIR 1947 Pat 185 (SB) (Z10) a Division Bench of the Patna High Court held that Section 115 gives discretionary powers to the High Court to interfere or not and that the High Court will not usually interfere if any other remedy is available to the aggrieved party. 

This decision related to the scope and applicability of Section 115 of the Code of Civil Procedure and did not deal with the question of the applicability or otherwise of Rule 2 of Order 14 of the Code of Civil Procedure. 

Two unreported cases have also been cited.

In Bai Shri Manharba Chawprajwala v. Dhaohal, Runing Ammbha, AIR 1955 NUC (Sau.) 4092 (Z11) the Saurashtra High Court held that if a Court declines to decide an issue of jurisdiction involving the recording of evidence as a preliminary issue, the High Court will not interfere in revision particularly as it is somewhat doubtful whether a revision is competent. 

The facts of this case have not been indicated in the report, but it is obvious that the so-called preliminary question of law could not be decided without recording evidence.

In Tansukhraj v. Chatarbhuj, AIR 1955 NUC (Ajmer) 4781 (Z12) the Judicial Commissioner held that it cannot be said that by refusing to decide the question of jurisdiction as a preliminary issue a Court fails to exercise the jurisdiction vested in it or exercises it illegally or with material irregularity.

It will be seen from the above that one case declares merely that S. 115 of the Code of Civil Procedure gives discretionary powers of interference, while the other three appear to indicate that a petition under Section 115 of the Code of Civil Procedure is not competent if the trial Court declines to decide a question of law as a preliminary question of law.

26. On the other hand  our attention has been invited to a number of cases in which the High Courts have issued directives that the trial Court should determine preliminary questions of law under Order 14 Rule 2 before proceeding to determine the other issues of law and fact. 

In AIR 1956 Hyd 62 ( A )the trial Court dismissed a certain suit on a preliminary question of law without recording evidence on the other issues. 

The District Judge set aside the decision of the trial Court on the ground that the decision of one issue at one time was not desirable as it was likely to prolong the duration of the suit.

The Hyderabad High Court set aside the order of the District Judge and restored that of the trial Court. 

In AIR 1933 All 753 (K) an application to have an issue of jurisdiction decided first was rejected by the trial court on the ground that it was undesirable to decide the case piecemeal and that the case should be taken up as a whole. 

Kendall J. held that the Court should decide whether a case can be disposed of on the issue or issues of law in the first place and if it is of opinion that the case may be disposed of on those issues only it has no option but to decide those issues first.

In this view of the law the learned Judge set aside the order of the Subordinate Judge and directed him to decide the issue of jurisdiction before proceeding to hear the suit on its merits. 

In AIR 1952 Pat 281 (M) the trial Court was satisfied that a preliminary issue of law had arisen in the case but declined to decide the said issue of law as a preliminary issue on the ground that the Court does not favour disposal of suits by decision of preliminary points.

Narayan J. held that once the court comes to the conclusion that there is a pure question of law to be decided as a preliminary issue in the case, an order refusing to decide the preliminary issue is not justified and should be interfered with in revision. 

In AIR 1954 Pepsu 9 (L) the trial Court declined to decide two pure questions of law as preliminary issues. Teja Singh C. J. set aside the order of the trial Court and directed that the said issues should be decided as preliminary issues under the provisions of O. 14, R. 2 of the Code of Civil Procedure. 

In C. Janardhanan v. N. M. Verghese, AIR 1925 Mad 707 (Z13) the lower Court decided, overruling objections that an election petition to set aside an election disclosed grounds on which an election enquiry could be held under the Election Rules.

The High Court held that it could interfere because if the election petition did not disclose any ground for an enquiry, the lower Court would be exercising jurisdiction not vested in it by holding such an enquiry and to hold it would simply lead to waste of time of the Court and of the parties. 

In 162 Ind Cas 486: (AIR 1936 Pat 250) (H-I) Court-ney-Terrell C. J. expressed the view that although interlocutory orders are matters of discretion of the lower Court, that discretion must be exercised according to the proper principle of justice and with regard to the proper interpretation of the rules in question.

It is the duty of the High Court to interfere when the discretion has not been exercised according to judicial principles. 

He held further that refusal to exercise revisional jurisdiction by the High Court when the trial Court has declined to try a preliminary issue on a point of law, might give rise to the gravest hardship for the party injured has no right of appeal and a refusal to exercise jurisdiction would mean that the Sub-Judge's unfettered discretion might put the injured party to enormous expense in going into issues which are unnecessary on the mere contention that the ultimate decision would be open to appeal.

27. It is true that Rule 2 of Order 14 vests a large measure of discretion in trial Courts but it must be remembered that this discretion should be exercised in accordance with established principles of justice and not arbitrarily or capriciously, fraudulently or without factual basis. 

Discretion of trial Courts does not extend to permitting them to ignore or transgress limitations on their powers. 

The cases mentioned above make it quite clear that if a High Court comes to entertain the view that an inferior Court or tribunal has not allowed its discretion to run in the grooves indicated therefor either by law or by judicial precedents, it is at liberty to interfere either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution.

By holding that issues Nos. 3 and 8 should not be tried as preliminary issues the Election Tribunal in the present case does not appear to have exercised its discretion according to established rules of law but in an arbitrary and capricious manner. 

It has erred to such an extent as to inflict an extraordinary and exceptional hardship on the petitioner. 

It seems to me therefore that a clear duty devolves on us to interfere at this stage.

If we decline to interfere with the order of the Tribunal at this stage and if the order is allowed to remain unaltered, it is obvious that the parties will be put to the trouble and expense of leading evidence on the numerous issues which have been framed in the case, that the proceedings will continue to remain pending for several weeks, and that the intention of the Legislature that election petitions should be disposed of expeditiously will be largely defeated.

I am of the opinion that the Election Tribunal had a clear duty to decide the preliminary issues of law which have arisen in this case, that its intention to embark on a lengthy enquiry in defiance of the provisions of Order 14 Rule 2 is manifest, that the results which are likely to flow from this decision will not only be prejudicial to the petitioner but will result in gross injustice to him, that the petitioner has no right to an immediate appeal and must await the decision of the election petition before he can appeal to this Court, and that there is no plain, speedy or adequate remedy other than by exercise of the powers of superintendence conferred on this Court to set right the hardship and inconvenience that is likely to be occasioned.

If the entire case can be disposed of by the decision of a preliminary point of law, there is no reason why leave to argue the point should not be sought or given, and if leave is sought and refused there is no reason why this Court should not interfere under Article 227 of the Constitution. 

It seems to me therefore that it is an eminently fit case in which the extraordinary powers conferred by Article 227 should be exercised in favour of the petitioner.

28. Mr. Daphtary requests in conclusion that the two issues of law which have arisen in this case should be determined by us as we have had the opportunity of hearing the arguments of the parties, but I am of the opinion that the duty of deciding these issues devolves upon the Tribunal in the first instance and the same must be performed by it.

29. For these reasons I would accept the petition, set aside the order of the Tribunal, and direct that issues Nos. 3 and 8 should be decided as preliminary issues. 

There will no order as to costs.

G.L. Chopra, J

30. I agree. ]

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VOL. XI INDIAN LAW REPORTS PUNJAB SERIES 1776 ( 1803 )

CIVIL MISCELLANEOUS

Before Bhandari, C. J. and Chopra, J.

THE HON'BLE SARDAR PARTAP SINGH RATRON, CHIEF MINISTER, PUNJAB, -Petitioner

                 versus

SARDAR GURMEJ SINGH,-Respondent.

Civil Misc. No. 1120 of 1957.

1958 March 10th.

Equivalent Citation = AIR 1954 Pepsu 9

အမှုတွင်၊အမိန့်၁၄၊နည်း၂သည်ဥပဒေငြင်းချက်များကိုအဆုံးအဖြတ်ပေးလျှင်အမှုတမှုလုံးကိုပြီးပြတ်စေနိုင်သည့်အမှုများနှင့်သာသက်ဆိုင်သည်မဟုတ်။ဥပဒေငြင်းချက်များကိုအဆုံးအဖြတ်ပေးလိုက်ပါကအမှုသည်များအနေဖြင့်အမှု၏တစိတ်တဒေသနှင့်စပ်လျဉ်း၍သက်သေထူရန်လိုအပ်တော့မည်မဟုတ်လျှင်တရားရုံးသည်ဥပဒေငြင်းချက်များကိုကနဦးစီရင်ဆုံးဖြတ်ရန်ဖြစ်သည်ဟုအောက်ပါအတိုင်းပြဆိုသည်-

[ Held, as follows: —

(1) When a case can be decided on a preliminary point of law the court has no discretion to say that it shall not be so decided.

(2) When the court is of opinion, that an objection raises a serious question of law, which if decided in favour of the party objecting, would dispense with any further trial or at any rate with the trial of some substantial issue in the action, it has no option but to decide that issue first. 

It has discretion to determine whether the case or any part thereof can or cannot be disposed of on issues of law only. 

It may hold for example, that the objection in point of law is not clear or explicit, or that the allegation wears a doubtful aspect, or that it raises a mixed question of law and fact, or that the matter is one which by reason of the obscurity either of facts or law ought to be decided at the conclusion of the trial, or that the facts are in dis-pute, or that a vital and undetermined question of fact is presented. 

In such a case the Court may decline to determine the points of law as points of law. 

If, however, clear cut issues of law are presented and there are no matters on which further light would be thrown at the trial and the decision on the points of law will substantially dispose of the whole or part of the action, it has no discretion in the matter. 

It has discretion indeed to determine whether the case of any part thereof can or cannot be disposed of on issues of law only, but if it finds in the exercise of its own honest judgment and discretion that it can; it must decide those issues first. 

It cannot decline to decide those issues on extraneous grounds, for example, that piecemeal decision of suits is not desirable, or that the Representation of People's Act, 1951, requires that election petitions should be disposed of expeditiously. 

The Court has discretion to determine whether the occasion for the exercise of its power has arisen, but if it holds that the occasion has arisen, it has no discretion to decline to exercise that power. 

Where power is conferred on a Court or tribunal and its exercise is made mandatory on the existence of certain conditions, and those conditions exist in fact, it has no discretion as to whether, in good faith or otherwise, the power shall be exercised. 

The provisions of Order 14, Rule 2, C.P.C. are mandatory and the only discretion left to the court is to form and express an opinion as to whether the case can be disposed of on the issues of law. 

The opinion must, however, be expressed on reasonable material.

(3) If an inferior court or tribunal which is vested with the exercise of discretion exercises it otherwise than in consonance with established principles, it is within the power of the High Court to interfere either under section 115 of the Civil Procedure Code or under Article 227 of the Constitution. 

The power of superintending control conferred by Article 227 is indefinite in character but unlimited in extent and is designed to prevent and correct errors and abuses, to authorise the superior court to examine any question which it deems of sufficient importance for examination and decision; to control summarily the course of litigation in inferior Courts to prevent an injustice being done through a mistake of law or a wilful disregard of it; to remedy manifest wrongs or tyrannical or arbitrary acts; to meet emergencies and to promote the harmonious working of the Courts. 

It is in the nature of a summary appeal and is meant to emancipate the Court from the restraints imposed on it by the rules of procedure, the only restraint on the exercise of such power being its own sound discre-tion. 

This power is not limited by forms of procedure and the court will look at the substance of the right sought to be vindicated and the need for speedy relief, rather than to the form in which such relief is sought. 

In the exercise of its supervisory power, the court is concerned in the prevention of abuses or illegal acts regardless of the amount involved, and in the prevention of extended and needless litigation. 

It is directed primarily to the inferior tribunals and its relation to litigants is only incidental. 

It should be resorted to most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority, or where real injustice would be done if the court could not interfere under section 115 of Code of Civil Procedure or where a tribunal does not act in accordance with the manner prescribed by law or exceeds its authority or acts arbitrarily or capriciously or transgresses bounds of its authority. 

It should not be exercised lightly or when other and ordinary remedies are adequate and complete. 

It should be invoked promptly and employed sparingly and only in extreme cases when the ends of justice imperatively demand it and when grave hardship will follow a refusal to exercise it. 

It will be used to prevent irreparable mischief, great extraordinary or exceptional hardship and great burdens in the form of expenses.

(4) The High Court will be justified in prohibiting inferior Courts in all cases where, (1) they are threatening to proceed or are proceeding, in a matter of which they have no jurisdiction and there is no remedy through an application to an intermediate court; and (2) where although possessing jurisdiction, they are exercising or about to exercise it erroneously and great injustice and irreparable injury would result to the applicant if they should do so, and there exists no other adequate remedy by way of appeal or otherwise. ] 

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Udmi Ram-Ram Sarup 

                 vs 

Ghasi Ram-Sakhan Lal

on 21 February, 1933

Equivalent citations: AIR 1933 ALL 753, AIR 1933 ALLAHABAD 753

JUDGMENT

Kendall, J.

အမှုတွင်၊အမှုတမှု၌ဥပဒေနှင့်အကြောင်းခြင်းရာဆိုင်ရာငြင်းချက်များထုတ်နုတ်ထားရာတွင်အဆိုအချေနှင့်စာရွက်စာတမ်းများအရအမှုကိုဥပဒေဆိုင်ရာငြင်းချက်များအရဆုံးဖြတ်နိုင်မည့်အခြေအနေပေါ်ပေါက်လျှင်ထိုငြင်းချက်များကိုကနဦးဆုံးဖြတ်ရန်ဖြစ်သည်။မဆုံးဖြတ်သေးဟုလွှဲရှောင်၍မရ။ဆုံးဖြတ်ရန်ပျက်ကွက်လျှင်တရားမကျင့်ထုံးဥပဒေပုဒ်မ၁၁၅(ဂ)၏အနက်အဓိပ္ပာယ်အရနည်းလမ်းတကျမဟုတ်ဘဲဆောင်ရွက်ရာရောက်သည်ဟုအောက်ပါအတိုင်းပြဆိုသည်-

[ 1. This is an application for the revision of an order of the Subordinate Judge of Kashipur. 

One of the issues raised by the pleadings was whether the Court at Kashipur had jurisdiction to try the suit and an application was made by the defendant that this issue should be tried first. 

The application was rejected in the following words: "It is not desirable that the case be decided piecemeal. 

The case will be taken up as a whole," and it is against this order that the present application is made. 

A preliminary objection has been taken that this order of the Court does not amount to a "case decided," and it must be admitted that the decision of a single issue out of several has generally been held not to amount to a "case decided" within the meaning of Section 115, Civil P.C. 

Reliance on behalf of the opposite party is placed on the Full Bench decision in the case of Baddha Lal v. Mewa Ram AIR 1921 All 1. 

In that case the trial Court had considered a question of jurisdiction and had decided it, and was proceeding to hear the case on the merits when the application was made to the High Court. 

The decision of the Full Bench was that the High Court would refuse to interfere in revision with such an order on the ground that no case had been decided. 

It is not clear however that the decision of the Full Bench would have been the same if the trial Court had decided that it had no jurisdiction and had dismissed the suit, or if the trial Court had refused to go into the question of jurisdiction and had proceeded to try the suit on the merits without expressing an opinion on this very essential point.

2. The strongest argument on behalf of the applicant is this : Under Rule 2, Order 14, Civil P.C., where there are issues of both law and fact in same the suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only it shall try those issues first.

3. In my opinion this rule can be interpreted in one way only, and that is that the Court must decide whether the case can be disposed of on the issue or issues of law only in the first place, and if it is of opinion that the case may be disposed of on those issues only, it has no option, but must decide those issues first. 

In the present case the Court has not put to itself the question at all, and has therefore expressed no opinion one way or the other. 

It has merely decided that it is not desirable that the case be decided piecemeal, and apparently it has been guided only by questions of convenience. 

The rule however as I have pointed out, makes it obligatory for the Court to consider whether the case may be disposed of on the legal issue alone, and as it has not done so it has undoubtedly acted irregularly, that is to say, otherwise than in accordance with the rules laid down in Schedule 1. 

The effect of this of course may be that the Court may waste a good deal of time, and the parties may be called on to undergo a good deal of expense to no purpose if it is ultimately found that the Court has no jurisdiction and this no doubt is the reason why Rule 2, Order 14, has been drafted so as to make it mandatory for the Court to decide the issue of law first in such a case.

4. I have no doubt therefore that the Court has acted irregularly, and the only question that remains is whether the decision of the Court amounts to a "case decided." 

There have been many attempts at defining the expression a "case decided," but none has been finally accepted, and the general trend of decisions in this Court has lately been to give a rather broader meaning to the expression than that which was attached to it by the majority of Judges in the Full Bench decision. 

I may refer to the case of Sumatra Devi v. Hazari Lal A.I.R. 1930 All. 758. 

In the present case the issue before the Court was whether it had jurisdiction or not to proceed with the suit, and if it had decided against its own jurisdiction the decision would undoubtedly have amounted to a case decided. 

It appears to me very difficult therefore to argue that a contrary decision does not also amount to a "case decided." 

I therefore allow the application with costs, set aside the order of the Subordinate Judge and direct him to decide the issue of jurisdiction before proceeding to hear the suit on its merits. ]

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သတိချပ်ရန်မှာဥပဒေကြောင်းဆိုင်ရာငြင်းချက်ဖြစ်သည်ဟုယူဆရန်အကြောင်းရှိသော်လည်းအဆုံးအဖြတ်ပေးရန်အတွက်အထောက်အထားလိုသေးလျှင်ပဏာမငြင်းချက်အဖြစ်ကြားနာခြင်းမပြုနိုင်။

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