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Hari Bhikaji Vs. Naro Visvanath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom432
AppellantHari Bhikaji
RespondentNaro Visvanath
Excerpt:
extraordinary jurisdiction - res judicata--code of civil procedure (act xiv of 1882), section 622. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. .....it is contended that the lower 'courts had no jurisdiction to try this suit under section 13, civil procedure code, inasmuch as the matter in issue in this suit-the right to the profits-was also in issue in a previous suit between the same parties. it is, however, not denied that the suit itself is one within the jurisdiction of the lower courts; but it is urged that the decree in the previous suit, having regard to the language of the above section, deprived them of their jurisdiction; that, by a wrong decision on that point, they could not give themselves jurisdiction; and that therefore, we should quash their decisions under section 692, civil procedure code, on the ground of their having exercised a jurisdiction not vested in them by law.5. we are, however, not prepared to admit.....
Judgment:

Nanabhai Haridas, J.

1. The plaintiff Naro sued Hari Bhikaji for Rs. 140-7-3 as so such money received to his use, the same being his half share of the profits of a field called Ringniche Agar.

2. The Subordinate Judge made a decree for the full amount claimed. The defendant thereupon appealed, and the Assistant Judge of Ratnagiri modified, that decree by awarding only Rs. 105-7-3, with all costs on the defendant, holding, upon the defendant's contention, apparently raised for the first time in appeal, that the subject-matter of the suit was not res judicata.

3. The suit being of the nature cognizable in a Court of Small Causes, and no second appeal lying in consequence, the defendant has applied to this Court to set aside the decrees of the lower Courts in the exercise of its extraordinary jurisdiction.

4. In support of the application it is contended that the lower 'Courts had no jurisdiction to try this suit under Section 13, Civil Procedure Code, inasmuch as the matter in issue in this suit-the right to the profits-was also in issue in a previous suit between the same parties. It is, however, not denied that the suit itself is one within the jurisdiction of the lower Courts; but it is urged that the decree in the previous suit, having regard to the language of the above section, deprived them of their jurisdiction; that, by a wrong decision on that point, they could not give themselves jurisdiction; and that therefore, we should quash their decisions under Section 692, Civil Procedure Code, on the ground of their having exercised a jurisdiction not vested in them by law.

5. We are, however, not prepared to admit the soundness of this contention. The suit itself being within the jurisdiction of the Assistant Judge, we think he had jurisdiction to determine whe-thee the defendant's plea of res judicata was made out or not; and, if he found it was not, he was bound to proceed with, and dispose of, the suit on the merits.

6. It is unnecessary for us to decide whether the Assistant Judge was right in the decision he came to on that point. Assuming, in favour of the defendant, that his decision on the question of res judicata is wrong, we are still unable, under Section 622, Civil Procedure Code, to interfere with it. It was a question which, as stated above, he had jurisdiction, and was bound,, to try. In doing so, therefore, it cannot be said that he exercised a jurisdiction not vested in him by law; and even if his decision be wrong in law-which is all that is or can be said in this case-we cannot, on that ground alone, interfere. We cannot say that, in coming to that decision, he acted ''illegally or with material irregularity 'withing the meaning of Section 622, Civil Procedure Code. See on this subject the cases collected in Tejram v. Harsukh I.L.R. 1 All. 104 note (c); In re Lakhykant Hose I.L.R. 1 Cal. 180; Pogose v. Catchick I.L.R. 3 Cal. 708; Amir Hassan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 : S.C. L.R. 11 IndAp 237; and Shiva Nathaji v. Joma Kashinath I.L.R. 7 Bom. 341.

7. We must, therefore, discharge the rule, with costs.


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