William Ewart Greaves, J.

1. On the 13th of May, 1921 this Rule was issued at theinstance of the defendant in the suit, calling on the other side to show cause,why a certain order passed on the 16th of February, 1921 should not he setaside, and the rule now comes before me for hearing. The plaintiffs suit wasdismissed by the First Court and he preferred an appeal against the order ofdismissal. Before the appeal was heard he presented a petition dated the 14thof February, 1921, alleging formal defects in the plaint and that one IndraMohan Karmakar was not examined with regard to a Hukumnama which the petitioneralleged to be false and fraudulent; and he asked that he might be allowed towithdraw the original suit with liberty to bring a fresh suit.

2. The order of the 16th of February, 1921 allowed theplaintiff to withdraw from the suit and gave him liberty to bring a fresh suit,and the ground for making the order as stated in the judgment, is that theplaintiff could not examine the Gomasta who was alleged to have written theHukumnama, I may say in passing that it appears from the judgment of thelearned Munsiff that the Gomasta was actually present in Court at the time whenthe Hukumnama was produced by the defendant. It is difficult to see why, if hecould have given material evidence, he should not have been called during thependency of the suit in the First Court.

3. On behalf of the defendant who has obtained this rule, Iam asked to interfere with the order of the lower Appellate Court under theprovisions of S. 115, C.P.C. on the ground that the lower Appellate Courtexercised a jurisdiction which he did not possess and also acted with materialirregularity.

4. On behalf of the defendant I have been referred to thecase of Kharda Co. Limited, v. Durga Charan Chandra (1910) 11 C.L.J. 45 = 5I.C. 187. Mr. justice Mookherjee there discusses the provisions of O. 23, R. 1under which the lower appellate Court purported to act and he decided that thereasons stated in sub-Cl. (b) of Cl. (2) must be ejusdem generis with sub-Cl.(a), that is to say to give the Court jurisdiction to act under O. 23, R. 1,Cl. (2), there must have been either some formal defect or some thing in thenature of a formal defect ejusdem generis under sub-Cl. (b). Otherwise, heheld, the Court has no jurisdiction to act under the order.

5. In the result in the case cited, the order made under O.23, R. 1, Cl. (2) was set aside. That case was followed in the case of MaleullaSardra v. Rani Hemangini Debi (1910) 11 C.L.J. 510 = 6 I.C. 629 and there is afurther case to which I have been referred which is a decision to the sameeffect, namely, the case of Hriday Nath Parai v. Akshoy Lal Chowdhury (1916) 25C.L.J. 454 = 39 I.C. 963

6. However on behalf of the plaintiff who obtained the orderof the 16th February, 1921. I am asked to say that, having regard to thewording of S. 115, C.P.C. the Court has no jurisdiction to interfere in casesof this nature, because, it is said that the jurisdiction of the Court tointerfere arises, when a case has been decided by any Court Subordinate to theHigh Court; and it is said that the order of the 16th February 1921 is not adecision of any Court Subordinate to the High Court within the meaning of S.115, and I have been referred to the case of Bansi Singh v. Kishun Lal Thakur(1914) 41 Cal. 632 = 26 I.C. 203, where this Court held that the High Court hadno power to deal with the case under S. 115 for the reasons already stated. Mr.Justice Coxe in delivering the judgment of the Court refers to the decision inKharda Co. Ltd. v. Durgacharan (1910) 11 C.L.J. 45 = 5 I.C. 187. But he seeksto distinguish that decision on the ground, that he suggests, that the terms ofS. 115 of the present Code of Civil Procedure are not identical with S. 622 ofthe Civil Procedure Code of 1882 under which the decisions in 11 C.L.J. weregiven.

7. I have looked with some care at the wording of S. 622,C.P.C.; and although it is true, the wording is not the same, it seems to methat the substance is in effect the same. The words are as follows:

The High Court may call for the record of any case in whichno appeal lies to the High Court, the Court by which the case was decidedappears to have exercised a jurisdiction not vested in it by law." Howevermodified, in S. 622, the word " decided" seems to me to be similar inits purport to the word "decided " in S. 115. If it be so, I amunable to understand bow the case; of Bansi Singh v. Kishun Lal Thakur (1914)41 Cal. 632 [LQ/CalHC/1913/483] = 26 I.C. 203, is really to be distinguished on the facts from thecases reported in 11 C.L.J. with the result, that, I think, I ought to, followthe two cases reported in 11 C.L.J. and also the decision in 25 C.L.J. inpreference to the decision in Bansi Singh v. Kishun Lall (1914) 41 Cal. 632 =26 I.C. 203.

8. The result is I must make the rule absolute with costs.The case will have to go back to the lower Appellate Court, in order that theappeal may be re-heard upon the materials on the record. Of course it will beopen to the Judge to proceed under R. 27 of O. 41 of the Code, if he issatisfied, that the conditions which justify the productions of additional evidencein the Court of Appeal have been fulfilled in this case. Hearing fee two goldmohurs.

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Udoy Chand Mandal and Ors. vs. Molla Syed Reasat Hossain andOrs. (17.01.1922 - CALHC)