A.M. Bhattacharjee, J.@mdashIt is high time that we seriously remind ourselves about the limited and restricted scope of our revisional jurisdiction
u/s 115 of the Code of Civil Procedure, a rather liberal use of this jurisdiction had added a great deal to our present forensic woes, has innundated
our courts with unmerited litigations resulting in staggering arrears and has held up disposal of numberless cases in the subordinate courts for too
long. The Section, however, as pointed out by the Privy Council in T. A. Bala Krishna Udayer (AIR 1917 Privy Council 71 at 74), quoted with
approval by the Supreme Court in Keshordeo Chamaria (AIR 1953 S.C. 28 at 27), ""applies to jurisdiction alone, the irregular exercise or non-
exercise of it or the illegal assumption of it"" and ""is not directed to conclusions of law or fact in which the question of jurisdiction is not involved"".
Clauses (a) and (b) of Section 115(1) of the CPC providing for the invocation of the revisional jurisdiction in a case where the subordinate court
has exercised a jurisidiction when there is none or has failed to exercise a jurisdicition where there is one, do not present much difficulties in their
application. But it is Clause (c) of Section 115(1), couched in rather wide and indefinite language and providing that the High Court may also
exerise revisional jurisdiction when the subordinate court ""appears to have acted in the exercise of its jurisdiction illegally or with material
irregularity"", that has led the various High Courts to go on enlarging the jurisdiction beyond permissible limits on the assumption that all cases of
gross errors of law or facts would come within the ambit of this Clause (c) and such a view has very often been adhered to inspite of its repeated
repudiation by the Privy Council and the Supreme Court during all these years spreading over more than a century.
2. As early as in 1884, Sri Bares Peacock, while construing the analogous provisions of Sections 622 of the CPC 1877, pointed out in Amir
Hassan Khan (I.L.R. 11 Calcutta 6 at 8) that if the Court had jurisdiction to decide a case, then ""even if they decided wrongly, they did not
exercise their jurisdiction illegally or with material irregularity"". Now whether one refers to this Amir Hassan Khan (supra) of 1884 or to the later
Privy Council decision in T.A. Bala Krishna Udeyar (supra) of 1917 or to the much later Privy Council decision in N.S. Venkatagiri Ayyangar of
1949 (AIR 1949 Privy Council 156), or whether one refers to the Supreme Court decision in Keshordeo Chamaria (supra) of 1952 or to the
much later decision of the Supreme Court in Vora Abbasbhai of 1963 (AIR 19 64 Supreme Court 1341), in Pandurang Dhondi of 1966 (
Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, ) or in D.L.F. Housing & Construction Company of 1969 (AIR 1971 Supreme Court 2324)
or to yet later decision of the Supreme Court in M.L. Sethi of 1972 ( Shri M.L. Sethi Vs. Shri R.P. Kapur, ) or in Sher Singh of 1978 ( Sher Singh
(dead) through L.Rs. Vs. Joint Director of Consolidation and others, ), one will find the law to be the same, and the position in law will appear to
be firmly established that the mere fact that the decision is erroneous in fact or in law does not amount to illegal or irregular exercise of jurisdiction
and that while exercising the revisional jurisdiction it is not competent for the High Court to correct errors of fact or law, however gross or
manifest, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.
3. Lord Denning has no doubt said (""Discipline of law"" Butterworths 1979, pages 63-66) that ""in one sense no tribunal ever has jurisdiction to
decide a case wrongly on a point of law"". The learned Lord has proceeded to observe that ""when Parliament sets up a tribunal, it does so in the
belief that it will decide the case in accordance with law and not contrary to it. So much so that it may be said that it is a condition of the grant of
jurisdiction that it should decide according to law"" This, if true, would obliterate all distinctions between the jurisdiction of an Appellate Court and
of a Revisional Court as under the CPC prevailing in India.
4. The dicta of the majority of the House of Lords in Anisminic Ltd. (1969 - 2 A.C. 147) might be regarded to have adopted such a view, but as
pointed out by Mathew, J. in M.L. Sethi (supra, at 2 385), the effect of the dicta would be ""to reduce the difference between jurisdictional error
and error of law within jurisdiction almost to a vanishing point"" so much so that ""any error of law can be reckoned as jurisdictional"" and this would
come ""periliously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong."" But, as we have already pointed out,
the decisions of our pre-independence and post-independence apex courts are consistently against this view. In N.S. Venkatagiri Ayyangar
(supra), the Privy Council construed (at 153) the expression ""illegally"" to mean ""in breach of some provisions of law"" and the expression ""with
material irregularity"" to mean ""by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate
decision"". If there is no such ""illegality"" or ""material irregularity"", then the High Court, observed the Privy Council, ""has no power to interfere
because it differs, however profoundly, from the conclusions of the subordinate court upon the question of fact or law"". These observations have
been repeatedly quoted with approval and relied on by the Supreme Court in a number of decisions, to wit, in Keshordeo Chamaria (supra, AIR
1953 SC 23 at 28).
5. It should be noted that though some observations of Mathew, J. in M.L. Sethi (supra, at 2385) might give rise to the impression that his
Lordship has referred to the enlargement of the revisional jurisdiction by the majority of the House of Lords in Anisminic Ltd. (supra) with some
what implied approval, yet in deciding the case, however, his Lordship nevertheless relied on and followed the abovenoted observations in N.S.
Venkatagiri Ayyangar (supra) and only added that even if an error of law with the jurisdiction could warrant intervention in revision, the order in
that case was not vitiated by any error of law. In Sher Singh (supra), the Supreme Court ( at 1345) has again relied on the above-noted
observations in N.S. Venkatagiri Ayyanger (supra) as to the construction of the expressions ""illegally"" and ""material irregularity"" in Section 115(1)
(c) of the CPC and has ruled that ""a distinction must be drawn between the errors committed by subordinate courts in deciding questions of law
which have relation to, or are connected with, questions of jurisdiction of the said courts, and errors of law which have no such connection"" and
that ""an erroneous decision on a question of fact or law reached by the subordinate court which has no relation to question of jurisdiction of that
court, cannot be corrected by the High Court u/s 115"".
6. Goinq, as we must, by these tests, we do not think that in the instant case there has been either any non-exercise or any illegal exercise or any
illegal assumption of jurisdiction by the trial court of the first appellate court to warrant our intervention u/s 115 of the Code of Civil Procedure. In
the suit, giving rise to this revision, the plaintiff-tenant complained inter alia that the defendant-landlord bolted and locked the back door of the
tenanted flat and thereby prevented the plaintiff-tenant from having any ingress and egress to and from the back portion of the tenanted premises.
The trial Judge, as it appears from his order dated 2 3.985, has considered the materials on record in considerable details and has also considered
as to whether the plaintiff has made out a prima facie case, whether irreparable injury would be caused to the plaintiff if the injunction as prayed is
not granted and whether the balance of convenience or inconvenience is in favour of the plaintiff and after such consideration as aforesaid, has
granted temporary injunction both mandatory and prohibitory, mandating unlocking and unbolting of the said back-door and prohibiting any further
obstruction to or interference with the opening of the said door so that the plaintiff may have easy access to the back portion to which the door
leads. The trial judge also granted some other orders of injunction, but those not having been assailed before us do not require any consideration.
On appeal, the appellate court has confirmed those orders after due consideration of the relevant facts and the principles of law. The trial court
having jurisdiction under the law to grant or not to grant such an injunction, the case at hand cannot amount to non-exercise or illegal assumption of
jurisdiction within the meaning of Clauses (a) and (b) of Section 115(1) of the Code of Civil Procedure. The trial Court and the Court of Appeal
also do not appear to have acted in breach of any provision of law or to have committed any such error of procedure, and far less any error so
material as to affect the decision arrived at and therefore, the courts below can not be said to have acted illegally or with material irregularity in
exercise of their jurisdiction.
7. The Bench decision of this Court in Nandan Pictures vs. Art Pictures (A.I.R. 1956 Calcutta 428), is not an authority, and indeed there can be
no authority, for such a broad proposition that an interlocutory injunction can not be granted in a mandatory form. The bench decision delivered by
Sir Ashutosh Mookerjee as early as in 1913 in Israil vs. Samset (AIR 1914 Calcutta 362 and 364 ) is a very clear and weighty authority for the
view that such interlocutory mandatory injunction for the view that such interlocutory mandatory injunction may be issued whenever equity and
justice would warrant its isuance. Even in Nandan Pictures (supra at 430), Chakravarty, C.J., has clearly stated that, not that such an interlocutory
mandatory injunction cannot issue, but that it should issue in rare cases where a very strong case is made out therefor. We are afraid that after two
successive courts have found on facts a strong case for an interlocutory mandatory injunction, it is not for us sitting in revision to re-assess the
materials on record in order to ascertain whether such a strong case has in fact been made out. That is the function of an appellate court; but we
would however, and that even if we were sitting in appeal, we would have held that a sufficiently strong case has been made out for an
interlocutory mandatory injunction in this case where it has been found that the backdoor of the premises let out to the tenant has been bolted and
locked by the landlord. It is true that, as pointed out in Israil (supra) and Nandan Pictures (supra), an interlocutory mandatory injunction is
generally granted directing the defendant to undo what he might have done in respect of the property after he has come to know about the
plaintiff''s action seeking to restrain him from doing those acts. But there is no absolute proposition that an interlocutory mandatory injunction can
be directed only against actions done by the defendant in bringing change in the situation of the property in dispute with the knowledge of the
plaintiff''s suit. If forcible and unlawful change is effected in the situation of a property by a defendant before the plaintiff could have occasion to file
a suit, and such a change very adversely and prejudicially affects the enjoyment of the property by the plaintiff, nothing should prevent a court in a
fit case to issue interlocutory mandatory injunction directing the defendant to undo what he has done, even though without the knowledge of the
plaintiff''s suit. To illustrate, if a landlord all of a sudden forcibly and unlawfully blocks the entry of his tenant to the tenanted premises before the
tenant could file a suit for proper relief, and the court finds that as a result of such action the tenant is virtually deprived of the enjoyment Of his
tenancy, the court can not be powerless to issue interlocutory mandatory injunction to remove the blockade simply because that was effected
before and without the knowledge of the suit. Such a view would be putting premium to all highhandedness and would encourage people to take
law into their own hands. We are, therefore, of opinion that the courts below neither acted illegally nor with material irregulaity in issuing the order
of injunction and there is nothing on recod to warrant our intervention in revision.
8. Mr. Mukherjee has also urged that even assuming that the back-door, which was locked, is a part of the plaintiff''s tenancy, the vacant space
behind the door is not a part thereof and, therefore, the courts below were wrong in granting the injunction in a manner allowing the plaintiff-tenant
access to and over such vacant space. It, however, appears from the record that the extent of the tenancy is also very much disputed. Whether the
vacant space behind the back-door is also a part of the plaintiff''s tenancy or whether the plaintiff has or had some sort of licence only in respect
thereof, is not a question which can be decided at this stage and surely not by us sitting in revision. And, therefore, the single Judge decision of this
Court relied on by Mr. Mukherjee in Muhammad Ziaul v. Standard Vacuum (55 Calcutta Weekly Notes 232) to the effect that in case of
revocation of licence the remedy may not be by way of injunction, but in damages, is hardly relevant. In the decision of the Supreme Court in
Orient Distributors Vs. Bank of India Ltd. and Others, , which has also been relied on by Mr. Mukherjee, what has been decided is that the
question as to whether on the materials on record the right to the disputed passage in that case amounted to an easement or a licence was not
purely a factual issue and could be gone into in second appeal u/s 100 of the Code of Civil Procedure, as it stood before the Amendment Act of
1976. We do not think that this decision also can in any way help us in determining the true scope of our revisional jurisdiction u/s 115 of the Code
of Civil Procedure. One word more before we conclude. Section 115 of the Code of Civil Procedure, as it stood before the Amendment Act of
1976, has now been numbered as sub-section (1) and a new proviso has been added thereto by the said Amendment Act providing inter alia that
the High Court shall not, under this Section, vary or reverse any order made in the course of a suit or proceeding, except where the order, if
allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made"". This can not and does not
mean that an interlocutory order is always revisable if it has occasioned a failure of justice or has caused irreparable injury, even though the
requirements of clauses (a), (b) or (c) of sub-section (1) are not satisfied. In fact, in view of the proviso, a revision against an interlocutory order
must now satisfy the further conditions contained in the proviso in addition to the jurisdictional conditions laid down in clauses (a), (b) or (c) of sub-
section (1). It cannot be contended, except at the cost of all logic and reasoning, that while a final order can only be revised only when the
restrictive jurisdictional conditions laid down in Section 115(1) are satisfied, an interlocutory order would nevertheless be revisable, even without
satisfying those conditions, on the ground that the same has occasioned a failure of justice or has caused irreparable injury. In the case at hand, we
have already held that the impugned order does not satisfy any of the conditions laid down in Clauses (a), (b) or (c) of Section 115(1) of the Code
and as such no revision can lie even if the order has occassioned failure of justice or caused ireparable injury. But we would only like to add that,
as explained hereinbefore, in the facts and circumstances of the case, the impugned order cannot be said to have caused any failure of justice or
any irreparable loss to the petitioners.
In our opinion, therefore, there is nothing in this case to warrant our intervention in revision and we, accordingly dismiss the revision.
Sukumar Chakravarty, J.
I agree.
