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Sonoo Narayan Vs. Dinkar Jagannath Marathe - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported inAIR1917Bom53; (1918)ILR42Bom80
AppellantSonoo Narayan
RespondentDinkar Jagannath Marathe
Excerpt:
presidency small cause courts act (xv of 1882), section 38 - new trial--full court--difference of opinion on questions of fact--powers of interference--powers not restricted to questions of law only--jurisdiction. - - the question appears to me to be unmistakably a question of fact, and therefore, in my judgment, the first point taken for the petitioner must fail. 4. it is unnecessary at present to attempt to define precisely the exent of the jurisdiction conferred by section 38; it is enough to say that in this case the full court had jurisdiction. i am of opinion, therefore, that on the law as it is administered in these courts, the petitioner must fail upon both the points which have been raised in his behalf. i desire to add that i decline to interfere in this case as i am not..........upon such questions their powers of interference were limited to cases where the judgment of the trial judge is manifestly against the weight of the evidence. i see no, reason to doubt that, as was decided in in re shivlal padma (1909) 34 bom. 316, to which i was a party, the powers conferred under section 38 of the act are, if a name must be found for them, more properly to he described as revisional than as appellate powers, but there is nothing, so far as i am aware, which would justify the view that these powers, however they are to be named, must be restricted to interference on questions of law. it was pointed out in bapuji v. dastur : (1906)8bomlr678 , what the words of section 38 themselves make manifest, that the phraseology of this section is deliberately wide and.....
Judgment:

Stanley Batchelor, Acting C.J.

1. This is an application in the extraordinary jurisdiction made by one Sonoo Narayan. He and the opponent Dinkar Jagannath instituted cross suits in the Court of Small Causes, the petitioner's suit being to recover a sum of Rs. 507, while the opponent's suit was to recover Rs. 225. A reference having been made to the pleader Mr. Manchashankar as a Commissioner, that gentleman made his report which was in favour of the present petitioner and against the opponent. That report was confirmed by the learned Fifth Judge, who was the Judge of trial, and an order was made accordingly. Thereafter a Rule for a new trial was obtained by the present opponent from the Full Court. On the Rule coming up for argument before the learned Chief Judge sitting with the Fifth Judge as a Full Court, there was a difference of opinion between the learned Judges, the Chief Judge holding that the opponent's suit should be wholly allowed, and the petitioner's suit should be disallowed, while the Fifth Judge was of opinion that on the evidence as it stood, the opponent Dinkar had not satisfactorily established his claim, and that the Rule for a new trial should be made absolute on the ground that fresh evidence was desirable. In this division of opinion, the order of the Chief Judge prevailed, and against that order the present petition is brought.

2. Mr. Kanga, the learned Counsel for the petitioner, has taken two points. I will take first the simpler point, that is, that the difference between the Judges of the Full Court was a difference on a question of law, and that under Section 69 of the Presidency Small Cause Courts Act there should, therefore, have been a reference to this Court. I think it may be said without exaggeration that counsel's ingenuity was hard put to it to explain how the matter upon which the Judges differed could possibly be represented as a question of law. It was indeed in my view the plainest question of fact. That question was whether upon the evidence on the record the opponent Dinkar had or had not made out his claim. The Chief Judge thought he had; the Fifth Judge thought he had not. The question appears to me to be unmistakably a question of fact, and therefore, in my judgment, the first point taken for the petitioner must fail.

3. The next point urged was under Section 38 of the Presidency Small Cause Courts Act. Counsel contended that the Full Court had no jurisdiction to make the order which was made, because they had no appellate powers on a question of fact, and upon such questions their powers of interference were limited to cases where the judgment of the trial Judge is manifestly against the weight of the evidence. I see no, reason to doubt that, as was decided in In re Shivlal Padma (1909) 34 Bom. 316, to which I was a party, the powers conferred under Section 38 of the Act are, if a name must be found for them, more properly to he described as revisional than as appellate powers, but there is nothing, so far as I am aware, which would justify the view that these powers, however they are to be named, must be restricted to interference on questions of law. It was pointed out in Bapuji v. Dastur : (1906)8BOMLR678 , what the words of Section 38 themselves make manifest, that the phraseology of this section is deliberately wide and comprehensive. All that the Legislature has ordained is that the Small Cause Court shall have power to order a new trial, or to alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and no limit is placed by the Legislature upon the Small Cause Court's powers in the exercise of this power. There is nothing in the wording of the section, so far as I can see, which suggests that the Legislature intended to confine the powers thus generally granted to particular cases where questions of law are involved, nor can it, I think, be accurately said that the powers of interference are only to be used where the original judgment is manifestly against the weight of the evidence. To set up a limit of this kind is in my view to impose a restriction for which the words of the Legislature afford no countenance.

4. It is unnecessary at present to attempt to define precisely the exent of the jurisdiction conferred by Section 38; it is enough to say that in this case the Full Court had jurisdiction. It is true that the decision in Sai Sikandar Rowther v. Ghouse Mohidin Marakayar (1916) 40 Mad. 355 is in favour of the petitioner, but there the learned Judges followed the practice which had long prevailed in the Madras Courts. The practice, however, on this side of India has consistently been the other way, and I do not think that the Madras decision would warrant us in altering our own cursus curioe in a matter where, with all respect, I venture to think that the words of the Code afford support to the view which this Court has adopted. I am of opinion, therefore, that on the law as it is administered in these Courts, the petitioner must fail upon both the points which have been raised in his behalf. I would, therefore, discharge the Rule with costs.

Shah, J.

5. I am of the same opinion. I desire to add that I decline to interfere in this case as I am not satisfied that the Full Court has acted without jurisdiction.

6. I do not consider it necessary for the purposes of this case to express any opinion as to the limits within which the Full Court can interfere with propriety under Section 38 of the Presidency Small Cause Courts Act on questions of fact. That must depend largely upon the practice of that Court, its judicial discretion, and the circumstances of each case. Having regard to the words of Section 38, and the interpretation put thereon by this Court, I am clearly of opinion that the Full Court cannot be held to have acted without jurisdiction. Under the circumstances of this case, I do not think that there has been any illegality or material irregularity in the exercise of its jurisdiction.


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