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Hassanbhoy Visram and ors. Vs. the British India Steam Navigation Company Limited - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom579
AppellantHassanbhoy Visram and ors.
RespondentThe British India Steam Navigation Company Limited
Excerpt:
.....section 38 - re-hearing--case in which order for re-hearing granted on ground that decision of small cause court was against weight of evidence--practice. - - the legislature has not given an appeal to the high court in all cases in which the value of the subject-matter exceeds one thousand rupees, but by section 38 it has provided for an application being made ex parte on affidavit 'for a trial of the cause by the high court, and which the court is directed to grant (on such terms as it thinks fit) if it' is of opinion that there has been a miscarriage or failure of justice. ' it can scarcely be better defined than in the words of hale, to be found in webster's dictionary, as' that assent of the understanding which is so far gained by evidence of probability that it rather..........on the ground of the decision being against the weight of evidence. in the present case the judge of the small cause court, as appears from the judgment, has given greater weight to the direct evidence as to the sugar when it was shipped, and the condition of the floor of the ship and the proximity of the wet timber already shipped to the sugar, than to the inference sought to be drawn by the defendants from the fact of the sugar having been lying in a godown in rangoon for several months and from the arrival of other sugar in the same state shipped in another vessel under similar circumstances except as to the condition of the floor, and, lastly, to the opinions of experts that the state of the sugar was not due to the causes relied on by the court. the evidence, so far as it.....
Judgment:

Charles Sargent, C.J.

1. This was an application for a re-hearing under Section 38 of the Small Cause Courts Act of 1882. The grounds set out in the affidavit, by which it was supported, were that the decision of the Small Cause Court was opposed to the weight of evidence and also contrary to law. The Legislature has not given an appeal to the High Court in all cases in which the value of the subject-matter exceeds one thousand rupees, but by Section 38 It has provided for an application being made ex parte on affidavit 'for a trial of the cause by the High Court, and which the Court is directed to grant (on such terms as it thinks fit) if it' is of opinion that there has been a miscarriage or failure of justice. 'It must be at once conceded that the term' opinion 'does not necessarily imply' conviction.' It can scarcely be better defined than in the words of Hale, to be found in Webster's Dictionary, as' that assent of the understanding which is so far gained by evidence of probability that it rather inclines to one persuasion than to another, yet not without a mixture of uncertainty or doubting.' This leaves the question open as to the strength of the opinion to be entertained by the Court as a condition of granting the application; but it obviously excludes that state of mind in which a Judge merely feels that the evidence is doubtful without forming any opinion as to whether the conclusion arrived at by the Small Cause Court is a wrong one, That is what the section expressly requires the Court to do. And, further, we cannot doubt that it was intended it should be a distinct opinion, and not what is termed the inclination of opinion. Having granted the Presidency Small Cause Court jurisdiction to try civil suits up to Rs. 2,000, and not having given an appeal to the High Court, the Legislature must be presumed to have intended that the decision, of the Small Cause Court should stand, unless the High Court should upon affidavit form a distinct opinion that there had been a miscarriage of justice. This view of the section becomes very important in considering an application for re-hearing, on the ground of the decision being against the weight of evidence. In the present case the Judge of the Small Cause Court, as appears from the judgment, has given greater weight to the direct evidence as to the sugar when it was shipped, and the condition of the floor of the ship and the proximity of the wet timber already shipped to the sugar, than to the inference sought to be drawn by the defendants from the fact of the sugar having been lying in a godown in Rangoon for several months and from the arrival of other sugar in the same state shipped in another vessel under similar circumstances except as to the condition of the floor, and, lastly, to the opinions of experts that the state of the sugar was not due to the causes relied on by the Court. The evidence, so far as it appears from the judgment and the statements in the affidavit, was of a very conflicting character, and certainly not such as to justify a distinct opinion that the Judge of the Small Cause Court was wrong so as to enable this Court to order a re-hearing on the ground of the decision being contrary to the weight of evidence. As to the objection that there was a clause in the bill of lading which relieved the defendants from any responsibility on account of the condition of the sugar, it was scarcely contended that it could apply when the injury to the sugar was caused, as found by the Judge, by the defendants not providing a ship in a reasonably fit state to carry the cargo. We must, therefore, refuse the application.


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