1. This is a revisional application by defendant 2 and the only point which has been raised on his behalf by Mr. Sukthankar is that the Pull Court exceeded its jurisdiction under Section 38, Presidency Small Cause Courts Act in that it interfered with the decree passed by the learned Trial Judge on question of fact.
2. The dispute lies within a very narrow compass. It appears that the plaintiff gave certain ornaments to the partnership of defendants 1 and 2. This partnership, according to the plaintiff, was then engaged in producing a picture known as 'Sinbad the Sailor'. For the price of the ornaments sold by the plaintiff he brought the present suit and he impleaded defendants 1 and 2 to his suit. Defendant 1 did not dispute the fact that he had taken the ornaments from the plaintiff.
He, however, denied that defendant 2 was a partner in the production of this picture. Defendant 2 made a similar plea, but remained absent at the trial. The learned trial Judge believed defendant 1, disbelieved the plaintiff and held that defendant 2 was not a partner. In regard to the dispute between the plaintiff and defendant 1 the learned trial Judge accepted the plaintiff's case and passed a decree in his favour against defendant 1 for Rs. 1590/- and costs.
The plaintiff preferred a revisional application to the Full Court under Section 38 and the Full Court took the view that, since the trial Court did not appear to have applied his mind to the real dispute between the parties before him, they were justified in exercising their revisional powers and so the decree passed by the trial Court dismissing the plaintiff's suit against defendant 2 was reversed and a decree has been passed against defendant 2. Mr. Sukthankar's contention is that, in reversing the decree passed 6y the trial Court on a question of fact, the Pull Court has exceeded its Jurisdiction under Section 38.
3. The limits of the jurisdiction of the Full Court in entertaining an appeal under Section 38 are well denned. Section 37 makes the decrees or orders passed by the trial Court finally subject to the results of proceedings taken under Section 38, and under Section 38 the jurisdiction conferred upon the Full Court is revisional jurisdiction.
It is not very easy to define the limits of re-visional jurisdiction, though the said limits are well established. If the question raised before the Full Court is one purely of fact, the Full Court would not be entitled to interfere with the finding recorded by the learned trial Judge merely on the ground that the Full Court would have taken a different view on the said facts. It would be difficult to justify interference by a revisional Court even on a pure matter of law.
If the trial is irregular or there is any defect in the procedure adopted by the trial Court or if the trial Court has made an order exceeding his jurisdiction or has committed any illegality or irregularity in the decision of the suit then the revisional jurisdiction of the Court can be appropriately invoked. This view has been expressed by Beaumont C. J. In -- 'Dinshaw Iron Works v. Maikhan Adamji & Co.' : AIR1943Bom42 (A).
Beaumont C. J. In a subsequent judgment had occasion to consider the same point in --'C. M. Easily v. Ernest do Rozario' : AIR1944Bom189 (B) and in this case the learned Chief Justice pointed out that, though ordinarily the Full Court exercising its jurisdiction under Section 38 would not be entitled to interfere with the findings of the trial Court on questions of fact, it would nevertheless be justified in interfering with a finding if it comes to the conclusion that the trial Court had not applied its mind to the point before it.
It must be remembered that the comment that the trial Court had not applied its mind can be made with justification only where the Full Court is satisfied that the comment can be properly made. This formula cannot be used for interfering with questions of fact in a matter that comes before the Full Court merely because the Full Court takes a different view of facts in that particular case. One can say that a Judge has not applied his mind to the points of evidence before him only where it appears clearly that some important and salient features of the case have completely escaped the attention of the learned Judge.
The distinction between the view taken by the Pull Court that the appreciation of the trial Court of questions of fact is erroneous and cases where the Pull Court takes the view that the trial Court has not applied its mind to the facts at all must be borne in mind whenever the Judgment of Beaumont C. J. In 'Eastley v. Rozario (B)' is sought' to be used by the Full Court.
4. Mr Sukthankar contends that, in the present case, the Full Court has merely used the formula mentioned by Beaumont C. J. and has virtually interfered with the appreciation of evidence by the learned trial Judge and has exercised appellate powers. I have carefully considered this argument. If I had been satisfied that the Full Court, by merely using the words which have received the authority of Beaumont C. J. had in fact purported to exercise appellate Jurisdiction in dealing with this matter.
I would without the slightest hesitation have interfered with the view of the Full Court and would have restored the judgment of the trial Court. But on hearing both the learned Advocates I am satisfied that the Pull Court was Justified in making the criticism against the trial Court's judgment that its decision showed that the trial Court had not really applied its mind to the salient and material facts in the case.
5. The material facts in this case can be very briefly stated. It appears that, after the amount became due to the plaintiff, he served a notice on defendant 1 in respect of his dues. He first gave notice to defendant 1 and he thought of making defendant 2 liable at a later stage. It also appears that, when he gave notice to defendant 2 in 1954, Mr. Joshi, an Advocate of the Court of Small Causes, sent a reply on behalf of defendants 1 and 2 and in this reply Mr. Joshi expressly admitted that defendants 1 and 2 were partners responsible for the production of the picture 'Sinbad the Sailor.'
Defendant 1 also admitted that defendant 2 was a partner in the production, but was entitled only to the profit, and for the loss and other responsibilities defendant 1 was concerned. The case made out by defendant 1 appears to be that, so far as the exhibition of the picture in Pakistan was concerned, he wanted to exploit the name of-defendant 2 and so he agreed that defendant 2 should receive 60 per cent of the profit in allowing defendant 1 to use his name in exhibiting the picture.
In fairness to the learned trial Judge, I may mention that, in the course of his Judgment, he set out the circumstances which were in favour of the plaintiff. These circumstances are four in number. The last amongst these was the reply given by Mr. Joshi. The learned trial Judge gave his reasons for not attaching any importance to the first three circumstances; but curiously enough, he has not considered the fourth circumstance at all, and the Full Court took the view -- and in my opinion, rightly -- that the reply given by Mr. Joshi, who purported to act as an Advocate on behalf of both the defendants, was very important and would laturally play a decisive part in the decision of the point as to whether defendant 2 was a partner or not.
Prima facie the statements made by Mr. Joshi in his reply must be taken to have been made on instructions received by him from both defendants 1 and 2, and if Mr. Joshi solemnly told the plaintiff that defendants 1 and 2 were partners concerned with the production of the picture 'Sinbad the Sailor' and if the learned trial Judge did not consider the significance and the effect of this admission, it was open to the Full Court to say that one very important fact on which the plaintiff relied had escaped the attention of the learned trial Judge completely and in that sense the criticism made by the Full Court that the trial Court had not applied its mind cannot be said to be unjustified.
It is not a case where there are some circumstances in favour of the plaintiff and some in favour of defendant 2. In such a case, if all the relevant circumstances are considered by the trial Court and he prefers to take one view rather than the other, the Full Court may not be entitled to interfere on the ground that the. trial Court had not applied its mind properly to the circumstances.
The Jurisdiction available to the Full Court in Interfering with finding of fact can be exercised only where the Pull Court can say reasonably land with justification that the trial Court has not applied its mind at all to the material and important circumstances in the case. In the present proceedings, it appears to me that, though the learned trial Judge recognised that the admission made by Mr. Joshi was an important circumstance and he set it out as such in the earlier part of his judgment, through oversight he forgot to deal with this circumstance and then was influenced by the legal aspect of what amounts to a partnership in ultimately coming to his conclusion.
The legal aspect of the matter may be important. But before the Court applies the law, the Court must consider the facts, and if Mr. Joshi's reply showed that defendant 2 had instructed Mr. Joshi to admit that defendant 2 was a partner, unless there was satisfactory explanation coining either from Mr. Joshi or from defendant 2 the admission made would really decide the matter. That is the view which has been taken by the Pull Court and I cannot say that in coming to this conclusion, in the light of the fact that the trial Court had completely failed to consider one important fact, the Pull Court has exceeded its jurisdiction.
6. in the result, the revisional application fails and the rule is discharged with costs.
7. Rule discharged.