l Appeal No 665N of 1972
Appeal by special leave from the judgment and order dated August 27 1971 of the High Court of Judicature at Allahabad in Civil Revision No 680 of 1970
V M Tarkunde and Hardev Singh for the appellant
Respondent appeared in person
The Judgment of the Court was delivered by Mathew J
This appeal by special leave is from the order of the High Court of Allahabad allowing on application for revision of orders passed by the Civil Judge Saharanpur directing discovery of documents by the respondent and dismissing an application by him for permission to sue forma pauperis
The respondent filed a suit in forma pauperis on April 29 1962 against the appellant and his wife for recovery of damages to the tune of Rs 748000 for malicious prosecution
Notice of the petition
to sue in forma pauperis was given to the State Government and the appellant under Order 33 Rule 6 of the Civil Procedure Code
Both the Government and the appellant filed objections stating that the respondent is not a pauper
The appellant thereafter filed an application for discovery of documents from the respondent for proving that the respondent is not a pauper
The Court passed an order on February 23 1970 directing the respondent to discover on affidavit the documents relating to the bank accounts of the respondent namely pass books cheque books counterfoils etc from March 1 1963 to the date of filing the affidavit of discovery as also the documents in respect of the properties held by him and the personal accounts maintained by him
The respondent was to file the affidavit of 700 discovery on March 8 1970
It was specifically stated that no extension of time will be allowed for filing the affidavit and that the discovery should be made within the time
The respondent did not file the affidavit in pursuance to the order
On March 31 1970 he moved an application stating
that he wants to file a revision against the order dated February 23 1970 before the High Court and that two months  time may be allowed for the purpose
The Court rejected the application for time on April 4 1970 on the ground that the application for permission to sue in forma pauperis was pending for the last seven years and that the respondent had ample time for filing the revision if he was diligent in the matter
The respondent s counsel then moved another application on the same day stating that the respondent wants to adduce evidence and that since he had not come to Court in the expectation that his earlier application dated March 31 1970 for adjournment would be allowed the case may be adjourned
This application was also rejected by the Court
And as counsel for the respondent reported no instruction and as there was no evidence to show that the respondent was a pauper the Court dismissed the application for permission to sue in forma Pauperis and directed the respondent to pay the court fee within 15 days
The respondent challenged the order directing discovery of documents passed on February 23 1970 and that dismissing his application for permission to sue in forma pauperis passed on April 4 1970 in revision before the High Court
The High Court hold that since the proceedings under rules 6 and 7 of Order 33 are summary in character the sophisticated procedure for discovery should not have been resorted to by the appellant that the documents of which discovery was sought were not specified in the application of the appellant and therefore the application for discovery was bad that the enquiry under rules 6 and 7 of Order 33 was primarily a matter between respondent and the State Government and that the trial court should not have adopted the procedure for discovery and inspection at the instance of a private party like the appellant
The Court further held that the trial Court acted with material irre gularity as it did not consider the question of the necessity for discovery of the documents or the relevancy of the documents of which discovery was sought and also for the reason that in ordering discovery of the documents relating to personal accounts and pass books it overlooked the right of the respondent to claim privilege
And as regards the order passed on April 4 1970 dismissing the application for permission to sue in forma pauperis after rejecting the application for adjournment the Court said that the trial Court betrayed an anxiety to get rid of 701 an application to add to the figures of its disposal
The Court therefore set aside the order for discovery as well as the order dismissing the application for permission to sue in forma pauperis
The respondent submitted that the procedure for discovery of documents is not permissible in proceedings under Order 33 and that it is not salutary to adopt the procedure even if permissible
In Vijay Pratap Singh vs Dukh Haran Nath Singh and another1 this Court has held that the suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 is presented
 If that be so the provisions of rule 12 of Order 11 relating to discovery would in terms apply to proceedings under Order 33
There is also no reason why if the provisions of Order 1 rule 10 relating to additions of parties of Order 9 dealing with appearance of parties and consequence of non appearance and of Order 39 relating to temporary injunctions would apply to proceeding under Order 33 the provisions in Order 11 dealing with dis covery of documents should not apply to such proceedings
In England discovery is ordered in any pause  or matter  in the Supreme Court to which the rules of the Supreme Court apply
And cause  includes any action suit or other original proceeding between a plaintiff and defendant
Generally speaking discovery is granted there in all proceedings except purely criminal proceedings and civil proceedings where the action is brought merely to establish a forfeiture or enforce a penalty1
There is no reason to hold if costs could be saved that it is not salutary to resort to the procedure in proceedings under Order 33
We think that the High Court was wrong in holding that since the application for discovery did not specify the documents sought to be discovered the lower Court acted illegally in the exercise of its jurisdiction in ordering discovery
Generally speaking a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party s evidence of his case or title
If a party wants inspection of documents in the possession of the opposite party he cannot inspect them unless the other party produces them
The party wanting inspection must therefore call upon the opposite party to produce the document
And how can a party do this unless he knows what documents are in the possession or power of the opposite party  In other words unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy how is it possible for him to ask for dis covery of specific documents  Order 1 1 rule 12 provides  1 675
2 Halsbury s Laws of England Vol
702 12
Any party may without filing any affidavit apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein
On the hearing of such application the Court may either refuse or adjourn the same if satisfied that such discovery is not necessary or not necessary at that stage of the suit or make such order either generally or limited to certain classes of documents as may in its discretion be thought fit Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs
When the Court makes an order for discovery under the rule the opposite party is bound to make an affidavit of documents and if he fails to do so he will be subject to the penalties specified in rule 21 of Order 1 1
An affidavit of documents shall set forth all the documents which are or have been in his possession or power relating to the matter in question in the proceedings
And as to the documents which are not but have been in his possession or power he must state what has become of them and in whose possession they are in order that the opposite party may be enabled to get production from the persons who have posses sion of them see form No 5 in Appendix C of the Civil Pro cedure Code
After he has disclosed the documents by the affidavit he may be required to produce for inspection such of the documents as he is in possession of and as are relevant
The High Court was equally wrong in thinking lb at in pass ing the order for discovery the trial Court acted illegally in the exercise of its jurisdiction as it deprived the respondent of his right to claim privilege for non production of his pass book and personal accounts because the stage for claiming privilege had not yet been reached
That would be reached only when the affidavit of discovery is made
Order 11 rule 13 provides that every affidavit of documents should specify which of the documents therein set forth the party objects to produce for inspection of the opposite party together with the grounds of objection
Nor do we think that the High Court was right in holding that the documents ordered to be discovered were not relevant to the injuiry
The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings
It is sufficient it the documents would be relevant for the purpose of throwing light on the matter in controversy
Every document which will throw any light on the case is a document relating to 703 a matter in dispute in the proceedings though it might not be admissible in evidence
In other words a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary s case or which may lead to a trail of enquiry which m have either of these two consequences
The word document  may this context includes anything that is written or printed no matter what the material may be upon which the writing or printing is inserted or imprinted
We think that the documents of which the discovery was sought would throw light on the means of the respondent to pay court fee and hence relevant
We venture to think that the High Court was laboring under a mistake when it said that the enquiry into the question whether the respondent was a pauper was exclusively a matter between him and the State Government and that the appellant was not interested in establishing that the respondent was not a pauper
Order 33 rule 6 provides that if the Court does not reject the application under rule 5 the Court shall fix a day of which at least 10 days  notice shall be given to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of pauperism and for hearing any evidence in disproof thereof
Under Order 33 rule 9 it is open to the Court on the application of the defendant to dispauper the plain 
tiff on the grounds specified therein one of them being that his means are such that he ought not to continue to sue as a pauper
An immunity from a litigation unless
the requisite court fee is paid by the plaintiff is a valuable right for the defendant
And does it not follow as a corollary that the proceedings to establish that the applicant plaintiff is a pauper which win take away that immunity is a proceeding in which the defendant is vitally interested  To what purpose does Order 33 Rule 6 confer the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is  not a pauper unless the opposite party is interested in the question and entitled to avail himself of all the normal procedure to establish it  We can think of no reason why if the procedure for discovery is applicable to proceeding under Order 33 the appellant should not be entitled to avail himself of it
We also do not think that there is any point in the criticism of the High Court that the order for discovery was vague
The first item in the order was in respect of the documents relating to the bank accounts of the respondent from March 1 1963 to the date of the affidavit
The second item related to documents in respect of the immovable properties held by him during the same 704 period and the third item was in respect of documents relating to the personal accounts maintained by him for the same period
The order was as specific as it could be
Counsel for the appellant contended that even if the order for discovery of documents was bad in law the High Court was not justified in interfering with it
And as regards the order dated April 4 1970 dismissing the application for permission to sue in forma pauperis after rejecting the application for time be said the High Court was really interfering with the discretion of the trial Court in the matter of adjournment The jurisdiction of the High Court under section 115 of the CPC is a limited one
As long ago as 1884 in Rajah Amir Hassan Khan vs Sheo Baksh Singh1 the Privy Council made the following observation on section 622 of the former Code of Civil Procedure which was replaced by section 115 of the Code of 1908 The question then is did the judges of the lower Courts in this case in the exercise of their jurisdiction act illegally or with material irregularity
It appears that they had perfect jurisdiction to decide the question which was before them and they did decide it
Whether they decided rightly or wrongly they had jurisdiction to decide the case and even if they decided wrongly they did not exercise their jurisdiction illegally or with material irregularity
 In Balakrishna Udayar vs Vasudeva Aiyar2 the Board observed  It will be observed that the section applies to jurisdiction alone the irregular exercise or non exercise of it or the illegal assumption of it
The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved
 In N section Venkatagiri Ayyangar vs Hindu Religious Endowments Board Madras1 the Judicial Committee said that section 115 empowers the High Court to satisfy itself on 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 he ultimate decision
And if the High Court is satisfied on those three matters it
has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law
11884 L R 11 1
A 237
2 1917 L R 44 1
A 261 267
3 1948 49 L R 76 1
A 67 705 This Court in Manindra Land and Building Corporation Ltd vs Bhutnath Banerjee and others1 and Vora Abbashhai Ali 2 mahomed vs Haji Gulamnabi Haji Safibhai  has held that a distinction must be drawn between the errors committed by sub ordinate courts in deciding questions of law which have relation to or are concerned with questions of jurisdiction of the said Court and errors of law which have no such relation or connection
In Pandurang Dhoni Chougute vs Maruti Hari Jadhav3 this Court said  The provisions of section 115 of the Code have been examined by judicial decisions on several occasions
While ex ercising its jurisdiction under section 115 it is not competent to the High Court to correct errors of fact however gross they may be or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself
As clauses a b and c of section 15 indicate it is only in cases where 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 that the revisional jurisdiction of the High Court can be properly invoked
It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction
It is well settled that a plea of limitation or a plea of rasjudica is a plea of law which concerns the jurisdiction of the Court which tries the proceedings
A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of section 115 of the Code
But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court under section 115
 The jurisdiction is a verbal coat of many colours Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd vs Foreign Compensation Commission 4   namely the entitlement to enter upon the enquiry in question
If there was an entitlement to enter upon an enquiry into the question ben any subsequent error could only be regarded as an error within the jurisdiction
The best known formulation of this theory is that made by Lord Denean in R vs 1  2  3 4  706 Bolton1
He said that the question of jurisdiction is determinable at the commencement not at the conclusion of the enquiry
In Anisminic Ltd 2  Lord Reid said But there are many cases where although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity
It may have given its decision in bad faith
It may have made a decision which it had no power to make
It may have failed in the course of the enquiry to comply with the requirements of natural justice
It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it
It may have refused to take into account something which it was required to take into account
Or it may have based its decision on some matter which under the provisions setting it up it had no right to take into account
I do not intend this list to be exhaustive
 In the same case Lord Pearce said Lack of jurisdiction may arise in various ways
There may be an absence of those formalities or
things which are conditions precedent to the tribunal having any jurisdiction to embark on anenquiry
Or the tribunal may at the end make an order that it has no jurisdiction to make
Or in the intervening stage while engaged on a proper enquiry the tribunal may depart from the rules of natural justice or it may ask itself the wrong questions or it may take into account matters which it was not directed to take into account
Thereby it would step outside its jurisdiction
It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct
Any of these things would cause its purported decision to be a nullity
 The dicta of the majority of the House of Lords in the above case would show the extent to which lack  and excess  of jurisdiction have been assimilated or in other words the extent to which we have moved away from the traditional concept of jurisdiction
The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point
The practical effect of the decision is that any error of law can be reckoned as jurisdictional
This 1  2 1969 2A C 147
707 comes perilously close to saying that there is jurisdiction it the decision is right in law but none if it is wrong
Almost any misconstruction of a statute can be represented as basing their decision on a matter with which they have no right to deal imposing an unwarranted condition or addressing themselves to a wrong question
The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error
Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute which will give little guidance
It is really a question of how much latitude the Court is prepared to allow
in the end it can only be a value judgment see HWR Wade Constitutional and Administrative Aspects of the Anismanic case Law Quarterly Review Vol 85 1969 p 198
Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision  It is a it difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack
The reason can only be that the error of law was considered as vital by the Court
And there is no yardstick to determine the magnitude of the error other than the opinion of the Court
The trial Court had jurisdiction to pass the order for discovery
Even if lack of jurisdiction is  assumed to result from every material error of law even an error of law within the jurisdiction in the primitive sense of the term we do not think the order was vitiated by any error of law
The rejection of the application for time and the consequent dismissal of the petition for permission to sue in forma pauperis can hardly be said to sound in jurisdic tional error even in its extended sense as already explained
We are also not satisfied that the refusal to adjourn occasioned any failure of natural justice so as to render the order a nullity
Nor is there anything to show that in rejecting the application for time the Court acted illegally or with material irregularity in the exercise of its jurisdiction
We would therefore set aside the order of the High Court and allow the appeal but in the circumstances make no order as to costs
This order will not in any way affect the validity of the order passed by the High Court on August 26 1971 directing the respondent to delete the name of the wife of the appellant from the array of parties
VPS Appeal allowed


Summary:
The respondent filed an application for permission to sue in forma pauperis against the appellant and notice of the petition was given to the state Government and the appellant under O33 r 6 CPC
The Government and the appellant filed objections that the respondent was not a pauper
The appellant also filed an application for discovery of docu ments from the respondent for proving that the respondent was not a pauper
The Court passed an order directing the respondent to discover on affidavit the documents relating to bank accounts of the respondent for a specified period
The respondent did not file the affidavit on the prescribed date but filed applications for time which were dismissed by the Court and the Court thereafter dismissed the application for permission to sue in form pauper is as there was no evidence to show that the respondent was a pauper and directed the respondent to pay the court fees
The respondent challenged the orders directing discovery of documents and dismissing the application for permission to sue in forma pauperis in revision before the High Court The High Court set aside the two orders holding that 1 Since the proceedings under O33 rr 6 and 7 are summary discovery should not have been ordered  2 the documents of which discovery was sought were not specified in the application of the appellant 3 the inquiry under O33 rr 6 and 7 was a matter between the respondent and the State Government and discovery and inspection at the instance of a private party like the appellant should not have been ordered4 the trial court acted with material irregularity as it did not consider the question of the necessity for discovery of the documents or the relevance of the documents of which discovery was sought 5 the trial court overlooked the right of the respondents to claim pri vilege and 6 the trial court rejected the application to sue in forma pauperis for statistical purposes
Allowing the appeal to this Court HELD  1 The suit commences from the moment an application for permission to sue in forma paupers as required by O 33 CPC is presented and the provisions of Order 1 r 10 of O9 and O39 would apply to it
If that be so there is no reason why the provisions of O11 r 12 relating to discovery should not also apply to proceedings under O33
701B C Vijay Pratap Singh vs Dukh Haran Nath Singh and Anr  675 followed
2 When the  Court makes order for discovery the opposite party is bound to make an affidavit of documents and if he fails to do so he will be subject to the penalties specified in O11 r 21
An affidavit of documents shall set forth all the documents which are or have been in his possession or power relating to the matter in question in the proceedings
As to documents which are not but have been in his possession or power he must state what has become of them in order that the other Party may Ll529upCI73 698 be able to get their production
Therefore unless the party discovery knows what are the documents in the possession of custody of the other party which would throw light
upon the matter in controversy it is not possible for him to ask for discovery and inspection of specific documents
 In the circumstances therefore the order was as specific as it could be
 702C F 3 Order 33 r 6 provides that it the Court does not reject the application under r 5 notice shall be given to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of pauperism and for hearing any evidence in disproof thereof
Also under O33 r 9 it is open to the Court on the application of the defendant to disappear the plaintiff on the grounds specified therein one of which is that his means are such that he should not be allowed to continue to sue as a pauper
Since an immunity from litigation unless the requisite court fee is paid by the plaintiff is a valuable right for the  defendant the inquiry into pauperism is not a matter exclusively between the Government and the plaintiff
703C G 4 The High Court was not right in holding that the documents were not relevant for the inquiry
The documents sought to be discovered need not be admissible in evidence in the inquiry or proceedings
It is sufficient if they would be relevant for the purpose of throwing light on the matter in controversy
A document might
be inadmissible in evidence and yet may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary s case or which may lead to a trail of inquiry which may have either of these two consequences
Since documents of which dis covery was sought would throw light on the means of the respondent to pay the court fee they are relevant
702H 703A C 5 The High Court was wrong in holding that the plaintiff s right to claim privilege was affected by the order because the stage for claiming privilege had not yet been reached
 That would be reached only when the affidavit of discovery is made and the plaintiff objects under O11 r 13 to produce for inspection by the Opposite party specific documents
702E G 6 a A distinction must be drawn between errors committed by subordinate courts in deciding questions of law which have relation to or are concerned with questions of jurisdiction of the Court and errors of law which have no such relation or connection for the purposes of section 115 CPC
If there was an entitlement to enter upon an inquiry into a question then any subsequent error committed by the Court could not be regarded as an error of jurisdiction because the question of jurisdiction is determinable at the commencement and not at the conclusion of the inquiry
705A B G H 706A Manidra Land and Building Corporation Ltd vs Bhutnath Banerjee  Ors AIR Vora Abbashhai Alimahommed vs Haji Gulamnabi Haji Safibhai  and Pandurangh Dhoni Chougule vs Maruti Hari Jadhav   followed
Rajah Amir Hassan Khan vs Sheo Baksh Singh 1884 LR II IA 237 Balakrishana Udayar vs Vasudeva Aiyar 1917 LR44 IR 261 Venkatagiri Ayyangar vs Hindu Religious Endowments Board Madras 194849 LR76 IA 67 Anisminic Ltd vs Foriegn Composition Commission  and R vs Botton 18441 I QB 66 referred to
699 b But the effect of the observations in the Anisminic case is to reduce the difference between a jurisdictional error and an error of law within jurisdiction almost to a vanishing point
The practical effect of the decision is that any error of law can be reckoned as jurisdictional706 H In the present case even if lack of jurisdiction is assumed to result from every material error of law even an error of law within the jurisdiction as generally understood the order of the trial court was not vitiated by any such error
of law and the High court was not justified in interfering with it in revision
The trial court had jurisdiction to pass the order for discovery
The rejection of the application for time and the consequent dismissal of the petition for permission to sue in forma pauperis cannot be said to sound in jurisdictional error even in its extended sense
The refusal to adjourn had not occasioned any failure of natural justice nor is there any thing to show that in rejecting the application for time the trial court acted illegally or with material irregularity in the exercise of its jurisdiction
707D G