ORDER
K.K. Dutta, J.
1. The petitioners, who are father and son, are the defendants in a money suit, namely, M.S. 61 of 1963, which is pending in the court of the Munsif 1st at Sasaram. This suit has been instituted by the members of the opposite party, who are also father and son, for recovery of a sum of Rs. 4200/-as principal and interest on basis of a
handnote for Rs. 3900/- dated 29-8-60 alleged to have been executed by defendant No. 1. that is, the present petitioner No. 1 as Karta of the joint family comprising himself and his son defendant No. 2.
2. According to the admitted case of the parties, one motor truck had been purchased jointly by the members of the two families. There is some difference between the parties whether the purchase was made jointly by the two plaintiffs and two defendants or by plaintiff No. 2 and defendant No. 2 only, but we are not concerned with that aspect in the present proceeding. It is further admitted that an agreement was arrived at between the parties on 29-8-60 for sale of the half share of the plaintiffs’ family in this motor truck to the defendant’s family for a consideration of Rs. 3900/- and in pursuance of this agreement, an unregistered sale deed was executed by plaintiff No. 2 and the handnote in suit was executed by defendant No. 1 in lieu of the consideration money. It may be added that there is some difference also on the point as to whether the recital portion in the handnote had been scribed out or not, for, according to the plaintiffs, the hand-note had been duly scribed out and was then thumb-marked by defendant No. 1 and the execution portion thereof was written by defendant No. 2 on behalf of his father defendant No. 1 while, according to the defendants, the contents of the handnote had not been scribed out but only the execution portion was written by defendant No. 2 for defendant No. 1 and the thumb-mark of defendant No. 1 was taken. We are, however, not concerned at present with this controversy also. According to the defence case, as the registration of the truck and the ownership book thereof stood in the name of plaintiff No. 2 and his name also figured in the records of the Financier, who had advanced the money for purchase of the truck on hire-purchase basis, it was agreed between the parties that plaintiff No. 2 would write letters addressed to the Financier as well as the Registration Officer for transfer of the truck in the name of defendant No. 2 and would also swear an affidavit to that effect. The defendants’ case further is that it was also agreed between the parties that the contract relating to the sale of the truck and with respect to the hand note would not be deemed to be complete until the name of defendant No. 2 was mutated in place of plaintiff No. 2 on completion of all the aforesaid formalities. Their case further is that plaintiff No. 2 actually swore an affidavit and also wrote letters addressed to the Financier and the Registration Officer for transfer of the truck in name of defendant No. 2 but when the affidavit
and the letter addressed to the Financier were produced before the Financier, he refused to accept the same on the ground that these documents had been signed by the plaintiff No. 2 in Hindi, although in the papers relating to the hire-purchase agreement, plaintiff No. 2 had put his signatures in English. A request was thereon made to plaintiff No. 2 to give a fresh affidavit and a fresh letter to the Financier after signing his name in English but he refused to do so with the result that the name of defendant No. 2 could not be mutated in place of plaintiff No. 2. It is further alleged that subsequently plaintiff No. 2 sold his half share to another person and in consequence thereof, defendant No. 2 had to purchase that share from the transferee of the plaintiff.
3. The hearing of the suit was taken up in the court below in due course and after the close of the evidence of the plaintiffs’ witnesses, the examination of the defence witnesses was taken up. It transpires that during the examination of D.W. 8 Lakshmi Singh, the defendants wanted to put certain questions to this witness which were disallowed by the court below. A petition was thereon filed by the defendants for allowing these questions and as would appear from the order of the court below, these questions were embodied in the petition. The Court below has however, rejected this petition by its order dated the 31st July, 1969 on the ground that the questions were not permissible in view of the provisions of Section 92 of the Evidence Act. The present petition in revision arises out of this order.
4. As would appear from the order of the court below, the particular questions which were sought to be put to D.W. 8 were specified in the aforesaid petition of the defendants as follows:
“(i) It was agreed between plaintiff No. 2 and defendant No. 2 that consideration of the handnote amounting to Rs. 3900/- will be paid after the name of defendant No. 2 is mutated in Financier’s Book Delhi, Transport Office, Patna and Owner’s book for which the plaintiff No. 2 has taken the responsibility for getting the name of defendant No. 2 mutated under the aforesaid offices and owner’s book.
(ii) It was also agreed that the transaction of the handnote and passing of title to the truck will not be complete unless the name of defendant No. 2 is mutated under the aforesaid offices and owner’s book and the defendants will not be liable to pay the consideration money of the handnote in suit.”
The Court below has observed that the questions that had been actually put and
disallowed due to the objection by the plaintiffs were somewhat different from the questions as incorporated in the petition, but the substance of the two questions was the same. It is manifest from these questions that these had been put in connection with the defence case that there was an agreement between the parties that the sale with respect to the truck and the handnote which was admittedly executed in lieu of the consideration for the sale would not be deemed to be completed transactions until the name of defendant No. 2 was mutated in the Financier’s records as well as the records maintained by the Motor Vehicles Registration Authorities. The effect of disallowing these questions is that the defendants have been debarred from giving evidence in support of this plea which was specifically raised in the written statement and which appears to be their main defence in the case. The question, therefore, arises whether the view taken by the court below that no such questions could be allowed in view of the provisions of Section 92 of the Evidence Act is correct.
5. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence can be given in proof of the terms of such contract, grant or other disposition of property or of such matter, except the document itself. Section 92 of the Evidence Act lays down that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms. It is manifest from these provisions that in case of written document embodying the terms of a contract, grant or other disposition of property the document alone is admissible for proving the terms thereof and no evidence of any oral agreement is admissible for contradicting, varying, adding to, or subtracting from the terms thereof. The aforesaid provisions are, however, subject to six provisos as incorporated in Section 92 itself. In the present case, we are concerned with provisos 2 and 3 only which are as follows:–
“(2) The existence of any separate oral agreement as to any matter on which
a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
(3) The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.”
It is manifest from what has been stated above that according to the case of the defendants, although the aforesaid sale-deeds with respect to the truck and the handnote were executed, there was a separate oral agreement between the parties constituting a condition precedent to the attaching of the obligations arising out of such contracts, namely, a condition that the name of defendant No. 2 should be mutated in place of that of plaintiff No. 2 in the Financier’s records and the Motor Vehicles Registration Office with respect to the truck in question after compliance of the required formalities. This agreement, as alleged by the defendants, comes within the purview of proviso 3 to Section 92 under which the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract etc., as are referred to in the Section may be proved. It is thus manifest that the view taken by the court below that the aforesaid questions were inadmissible in view of the provisions of Section 92 is quite wrong. It may also be added that under proviso 2, the existence of separate oral agreement as to any matter on which a document itself is silent is permissible provided such agreement is not inconsistent with the terms of the document. The aforesaid agreement as alleged to have been arrived at between the plaintiffs and defendants as to the attaching of the obligation after fulfilment of certain conditions cannot be said to be inconsistent with the terms of the agreement as incorporated in the handnote and. as such, the alleged agreement comes within the purview of this proviso also. However so far as the present case is concerned, it is not necessary to make any further consideration of proviso 2 as it is manifest that whatever may be the view that may be taken so far as this proviso is concerned, there cannot be the slightest doubt that proviso 3 is applicable to the case and the questions as sought to be put to D.W. 8, which have been disallowed by the court below, were clearly admissible under this proviso. There cannot thus be any doubt that the court below has erred in disallowing the questions by holding that the questions are not permissible under Section 92 of the Evidence Act,
6. It was next contended on behalf of the opposite party that even if the Court below had committed a mistake in taking the view that the aforesaid questions were inadmissible, the order as passed by the Court below cannot be revised under Section 115 of the Code of Civil Procedure as it was an interlocutory order and the court below had jurisdiction to pass such an order. In this connection, it is necessary to make reference to the provisions of Section 115 which are as follows:–
“The High Court may call the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.”
Clauses (a) and (b) are evidently applicable when the Court below has either exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction vested in it and the present case is not one in which either of these clauses is applicable, as the court below had jurisdiction to decide about the admissibility of the questions and has passed the impugned order in exercise of such jurisdiction. Clause (c), however, provides that even in a case where the order has been passed in exercise of the jurisdiction vested in a court, the order can be revised under this Section if the court has acted illegally or with material irregularity in the exercise of such jurisdiction. In this connection, reliance was placed on behalf of the opposite party on the decisions of the Supreme Court in the cases of Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patel, AIR 1966 SC 439 and Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, AIR 1964 SC 1341 and the Full Bench decision of the Allahabad High Court in the case of Mukund Lal v. Gaya Prasad, AIR 1935 All 599 (FB). In the case reported in AIR 1964 SC 1341, observations have been made to the effect that the exercise of power of the High Court under Section 115 is severely restricted by the terms of the statute. It was further observed that “the High Court may exercise its powers in revision only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.” It was also felt that “if the trial court had jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly, the Court had jurisdiction to decide the case, and even if it decided the question wrongly, it did not exercise its jurisdiction illegally or with material irregularity. In the case reported in AIR 1966 SC 439, reference was made to an earlier decision of the Court in which the following observations of the Judicial Committee in the case of Joy Chand Lal v. Kamalaksha Choudhary, 76 Ind App 131 = AIR 1949 PC 239 were recited:–
“There have been a very large number of decisions of Indian High Courts on Section 115 to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does hot by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under Sub-section (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b). and Sub-section (c) can be ignored.”
This recital is followed by the following observations:–
“This Court then observed that the Privy Council had distinguished between cases in which on a wrong decision the Court assumes jurisdiction which is not vested in it or refuses to exercise jurisdiction which is vested in it by law and those in which in exercise of its jurisdiction the Court arrives at a conclusion erroneous in law or in fact, and that while in the former class of cases exercise of revisional jurisdiction by the High Court is permissible it is not permissible in the latter class of cases.”
I may also refer in this connection to another decision of the Supreme Court in the case of Rama Iyer v. Sundaresa Ponnapoondar, AIR 1966 SC 1431 in which the following observations were made while considering the applicability of the provisions of Clauses (a) and (b) only of Section 115:
“The decision of the Subordinate Court on all questions of law and fact not touching its jurisdiction is final and, however, erroneous such a decision may be, it is not revisable under Sub-sections (a) and (b) of Section 115. On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction, e.g., on a preliminary fact upon the existence on which its jurisdiction
depends, the subordinate Court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final and is subject to review by the High Court in its revisional jurisdiction under Sub-sections (a) and (b) of Section 115.”
7. It is manifest from these decisions that so far as the powers of the High Court under Clauses (a) and (b) of Section 115 are concerned, there cannot be any interference by the High Court with the order of the lower court unless in passing the order, the lower court either failed to exercise jurisdiction vested in it or exercised jurisdiction which was not vested in it. It would further appear that so far as the powers of the High Court under Clause (c) are concerned, a mere wrong decision either on point of law or on fact by the lower court does not, ipso facto, empower the High Court to interfere with such an order based on such decision if it was passed in exercise of the jurisdiction vested in that court, but that does not imply that the High Court has no power under any circumstances to interfere under Clause (c) with an order passed by the trial court, if such order was passed in exercise of the jurisdiction vested in that Court, for that would be making the provisions of Clause (c) completely nugatory. Although a mere wrong decision on a point of law or on fact does not, ipso facto, entitle the High Court to exercise its power under Clause (c), but if the lower court has acted illegally or with material irregularity in passing the order in exercise of the jurisdiction vested in it, such an order is undoubtedly, liable to be interfered with by the High Court in view of the express provisions of Clause (c) of Section 115. I may refer in this connection to the decision of the Privy Council in the case of N.S. Venkatagiri Ayyangar v. The Hindu Religious Endowments Board, Madras, AIR 1949 PC 156. After referring to the provisions of Section 115, the following observations were made in this case:
“The section empowers the High Court to satisfy itself upon three matters:
(a) that the order of the subordinate Court is within its jurisdiction;
(b) that the case is one in which the Court ought to exercise jurisdiction; and
(c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however
profoundly, from the conclusions of the subordinate Court upon questions of fact or law.”
8. There cannot thus be any doubt that although a mere wrong decision on question of law and fact by the lower Court does not entitle the High Court to interfere with the order as passed by the trial Court in exercise of the powers under Clause (c) of Section 115. the High Court has such powers, if it is found that the lower court has acted illegally or with material irregularity in passing such an order. Hence, in considering the applicability of Clause (c), when the order in question has been passed by a lower court in exercise of its jurisdiction vested by law, the material point to be considered is whether in passing this order, the court below has acted illegally or with, material irregularity. In the present case, as already mentioned, the effect of the wrong decision on the question of admissibility of the questions put to the witness concerned was that the defendants were thereby completely debarred from taking the plea regarding the alleged oral agreement constituting condition precedent to the attaching of the obligations under the handnote on basis of which the suit against the defendants was instituted by the plaintiffs. That being the position, the court below must be held to have acted illegally as well as with material irregularity in exercise of its powers, as this order is evidently bound to affect the ultimate decision of the suit on merits as it has the effect of striking out the main defence of the defendants. I am, therefore, unable to accept the contention that this Court has no jurisdiction to interfere with the order in question in exercise of its power under Clause (c) of Section 115 of the Code of Civil Procedure.
9. The Full Bench decision of the Allahabad High Court, referred to above, was relied upon in support of the contention that as the order in question was an interlocutory order and did not result in the final decision of the case, it could not be interfered with under the provisions of Section 115. This contention, however, cannot be accepted in view of the decision of the Supreme Court in the case of Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 in which the following observations were made:
“The expression ‘case’ is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression ‘case’ as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise
of powers of superintendence, to which the jurisdiction to issue writs and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice.” (Vide page 501, para 11).
Some further observations as made in this case are as follows:–
“But once it is granted that the expression ‘case’ includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit.” (Vide page 501, Para 15).
In view of this decision, the contention that the order in question cannot be interfered with as it was an interlocutory order and did not involve final decision of the suit cannot be accepted.
10. In the result, this petition in revision is allowed, the order of the Court below disallowing the defendants from putting the questions referred to in the order of the court below is hereby set aside and the court below is directed to proceed with the further trial of the case in accordance with law. It is further directed that the court below shall allow the defendants to put questions to their witnesses in support of their plea regarding the alleged oral agreement constituting a condition precedent to the attaching of the obligations under the handnote in suit. In the circumstances of the case, it is directed that the parties shall bear their respective costs of the present proceeding.