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Bhagvandas Dharamsi Vs. A. Besse Frenchman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in3Ind.Cas.960
AppellantBhagvandas Dharamsi
RespondentA. Besse Frenchman
Excerpt:
aden courts act (ii of 1864), sections 8, 9 - reference by resident of aden to high court--application should he unconditional and before delivery of judgment--option to reserve judgment contingent on high court's opinion--presidency small cause courts act (xv of 1882) section 69. - .....115 of the civil procedure code for revision of a decree passed in appeal in a civil case by the resident of aden.2. a suit was instituted by the applicant in the court of the assistant resident and was decided against him by that judge.3. an appeal was then preferred to the resident with a statement of the appellant's case in which after setting forth his contentions with regard to a certain question regarding sugar which arose in the case, he said:if, however, after considering all the circumstances your honour feels any reasonable doubt as to such a finding in my favour as regards the sugar item, i submit that your honour will bo pleased under section 8 of the aden act ii of 1864 to draw up a statement of this part of my case and submit it with your honour's opinion to the high.....
Judgment:

1. This is an application under Section 115 of the Civil Procedure Code for revision of a decree passed in appeal in a Civil case by the Resident of Aden.

2. A suit was instituted by the applicant in the Court of the Assistant Resident and was decided against him by that Judge.

3. An appeal was then preferred to the Resident with a statement of the appellant's case in which after setting forth his contentions with regard to a certain question regarding sugar which arose in the case, he said:

If, however, after considering all the circumstances your Honour feels any reasonable doubt as to such a finding in my favour as regards the sugar item, I submit that your Honour will bo pleased under Section 8 of the Aden Act II of 1864 to draw up a statement of this part of my case and submit it with your Honour's opinion to the High Court at Bombay.

4. The Resident having considered the arguments advanced affirmed 'the decision of the Assistant Resident and did not draw up statement of the case and submit with it his opinion for the decision of the High Court.

5. It is contended on behalf of the applicant that the Resident was bound, upon the application to which we have referred, to draw up a case and submit it for the decision of this Court, in accordance with the provisions of Section 8 of the Aden Act II of 1864.

6. On behalf of the opponent it is contended that no such application, as is contemplated by that section, was made to the Resident because, the application which was made was a conditional application not to be acted upon unless the Resident felt reasonable doubt as to the correctness of the appellant's contentions.

7. In our opinion the argument of the opponent must prevail. The provisions of Section 8 of the Aden Act are, in all material aspects for the purposes of this case, the me as those of Section 69 of Act XV of -1882, the Presidency Small Cause Courts Act, and we have the recorded opinion of Judges of this Court that any party requiring a case to be stated under that section of the Small Cause Courts Act is bound to make an unconditional application before the delivery of judgment. Thus in the case of Ralli Brothers,v. Goculbhai Mulchand 15 B. 370 Mr. Justice Farran says:

It appears to me that the party who requires the Small Cause Court to state a case must do so unconditionally before judgment is delivered. To require the Small Cause Court to deliver judgment and to state a case only in the event of such judgment being adverse to the party requiring the case, would deprive the Court of the power of reserving judgment until after the opinion of the High Court is obtained, which power is expressly conferred upon it by the Act.

8. Again, this Court in a judgment delivered by Sir Charles Sargent in the case of the Bank of Bengal v. Vyabhoy Gangji 10 B. 618. said:

The language of Section 69 of the Small Cause Courts Act XV of 1882 shows that the party requiring the Judge to make the reference to the High Court must do so before the Judge has delivered his judgment, as it gives the Judge the option, on being so required, either of postponing his judgment or delivering it contingent on the opinion of the High Court.

9. Now those remarks are directly, applicable to the present case, because by Section 9 of the Aden Act it is provided that the Resident may proceed in the case notwithstanding the reference to the High Court and may pass a decree contingent upon the opinion of the High Court on the point. referred. It is to be observed that the word may 'is used in this section while the word shall' is used in Section 8. The permissive terms' of Section 9 are also in marked contrast with the imperative terms of the corresponding provision in Section 7 of Act XXVI of 1864, the Presidency Small Cause Courts Act of the same year. We, therefore, think that Section 9 of the Aden Act gives the Resident, the same option as the Section 69 of the Small Cause Courts Act of 1882.

10. As pointed out in the judgments above referred to, to allow of reservation of judgment, the application must be made unconditionally before delivery of judgment.

11. For these reasons we dismiss the application with costs.


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