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Alimahomed Akbarally Vs. ShamsuddIn Dadamiya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 4497 of 1923
Judge
Reported inAIR1928Bom145; (1928)30BOMLR131
AppellantAlimahomed Akbarally
RespondentShamsuddIn Dadamiya
Excerpt:
civil procedure code (act v of 1908), section 75, order xxvi-high court-consent order-reference to commisssioer-question of party's status as agriculturist on the ground of his personal occupation-report of commissioner-exceptions-court can recall evidence on the question-dekkhan agriculturists' relief act (xvii of 1879), section 2.;the high court has no jurisdiction to refer to the commissioner the question whether a party to a suit is an agriculturist on the ground of his being personally engaged in agricultural labour. such a reference is outside the scope of section 75 and order xxvi of the civil procedure code,;where a consent order was made to refer such a question to the commissioner, the court, hearing exceptions to the commissioner's report recalled the evidence on the question...........for what the plaintiffs and their legal advisers understood, if the plaintiffs desired by consent a reference only on the question of the excess of agricultural income over non-agricultural income, it was the duty of the plaintiffs and their legal advisers carefully to say so in the consent order. even accepting therefore the misunderstanding, it appears to me that they are themselves to blame for permitting the consent order to be drawn up in wider terms and not in the precise terms, as it was their duty to do, construing the consent order in its plain and natural sense, its terms, which i have quoted above, extend the reference not merely to the income of the defendant no. 1 alone but also to his agricultural status. on the question of construction, therefore, the plaintiffs'.....
Judgment:

Madgavkar, J.

1. This is a suit by the plaintiffs for dissolution of partnership and accounts. The defendant No. 1 raised a plea of jurisdiction on the ground that he was an agriculturist, within the meaning of the Dekkhan Agriculturists' Relief Act, and on July 7, 1925, by consent Kajiji J. ordered that a preliminary issue as to whether the first defendant Shamsuddin Dadamiya was an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act at the time of the accrual of the cause of action or at the date of the filing of the suit should be referred to the Commissioner. The Commissioner ordered defendant No. 1 to file his accounts and gave him time for the purpose. Time was taken and ultimately accounts were filed. But defendant No. 1 also desired to lead evidence that he was an agriculturist by reason of his being personally engaged in agricultural labour under g. 2 of the Dekkhan Agriculturists' Relief Act. The solicitors for the plaintiffs objected to this evidence but the objection was overruled, On this oral evidence, the Commissioner, without going into the question of accounts or income, has reported in favour of defendant No 1. The plaintiffs have filed exceptions to the Commissioner's report.

2. It is argued for the plaintiffs that defendant No. 1 had never, in the pleading or until the proceedings before the Commissioner, alleged that he was personally engaged in agricultural labour and that the plaintiffs understood that he sought to bring himself within the purview of the Dekkhan Agriculturists' Relief Act on the ground that his agricultural income exceeded his non-agricultural income and that it was under this impression that the plaintiffs consented to the order of reference to the Commissioner ob July 7, 1925. It is contended that in any case the Court has no power to refer and the Commissioner to hear evidence on the question whether defendant No. 1 was personally engaged in agricultural labour. The report should, therefore, be rejected on this ground alone without going into the merits.

3. For the defendant No. 1 it was argued that had the Court made such a reference ad invitum, I should have had no power to revise the order. A consent order is analogous to res judicata and places the defendant No. 1 on even stronger ground than an order ad invitum and the practice of this Court is alleged to be in favour of the broader and not merely of the narrower reference to the Commissioner. The objection of res judicata is not confined to Section 13, Civil Procedure Code (Act X of 1877) : Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37. The present order by consent operates to stop the plaintiffs from their present contention : In re South American and Mexican Company : Ex parte Bank of England [1895] 1 Ch. 37, 44.

4. On the question of the construction of the consent order, whatever the case in diplomacy, in the Courts language is not given to conceal thought but rather to express it with precision, lucidity, and conciseness; and however lacking in the two latter, at least in regard to the first, namely, precision, no laxity is permissible and ambiguity is not allowed. The plaintiffs cannot justly make the defendant No. 1 responsible for what the plaintiffs and their legal advisers understood, If the plaintiffs desired by consent a reference only on the question of the excess of agricultural income over non-agricultural income, it was the duty of the plaintiffs and their legal advisers carefully to say so in the consent order. Even accepting therefore the misunderstanding, it appears to me that they are themselves to blame for permitting the consent order to be drawn up in wider terms and not in the precise terms, as it was their duty to do, Construing the consent order in its plain and natural sense, its terms, which I have quoted above, extend the reference not merely to the income of the defendant No. 1 alone but also to his agricultural status. On the question of construction, therefore, the plaintiffs' argument fails.

5. The next question is, whether I am at liberty, leaving the consent order as it stands, to consider its propriety, I cannot constitute myself an appellate Court over the order of Kajiji J, But, on the other hand, in reference to the Commissioner, the Court has wide powers such as to reopen accounts, even when no exceptions are taken: Ahmed Nanhubhai v. Khasaji Karimbhai (1869) 6 B.H.R.149.; R.M. 8. Chetty v. Mahomed Essa Saheb (1901) 5 C.W.N. 692. It is open to the Court to recall evidence if it so wishes. Accordingly, I hold that it is open to me to consider the contention for the plaintiffs as to how far the Court can or cannot refer to the Commissioner the question whether defendant No. 1 is personally engaged in agricultural labour. The plea of status as agriculturist is often taken in this Court, But no decision, reported or unreported, on this point has been brought to my notice.

6. On this question I am of opinion that the Court cannot refer this question to the Commissioner. To begin with an elementary consideration, a Court cannot confer powers upon itself nor can it delegate them. It can only derive them from the legislature; the law alone can give it what jurisdiction it possesses. Similarly, the procedure on the questions within its jurisdiction is in certain respects laid down by adjective law such as the Code of Civil Procedure. The power to issue commissions is expressly limited by law. Section 75 of the Code of Civil Procedure enacts that it is 'subject to such conditions and limitations as may be prescribed the Court may issue a commission etc.' These conditions and limitations are laid down in the rules in Order XXVI. Thus in Gopal Chunder Sircar v. Kurnodhar Mcochee (1967) 7 W.R. 349. it was held that Section 175 of the Code of Civil Procedure of 1859 (Act VIII) corresponding to Section 75 was exhaustive and in Veerabadran Chetty v. Nataraja Dasikar I.L.R (1904) Mad. 28. a similar view was taken as to Section 386 of the Code of 1882 (Act XIV) corresponding to Section 76, Order XXVI, Rule 4. I am unable, therefore, to accept a practice, if any, as sufficient to enable the Court to issue a commission outside Section 75 or Order XXVI, But this section and this Order do not include a reference on a question such as whether a party engages personally in agricultural labour but only aa far as the present suit is concerned, to examine the accounts. For these reasons I am of opinion that while a reference on the narrow question of accounts is competent, a reference in the wider terms of the consent order, in so far as it included the question of the defend- ant No. 1 being personally engaged in agricultural labour, was outside the power of the Court and the procedure laid down by law.

7. The next question is, whether, on this opinion, it is open to me to act on it or whether I am bound by the consent order of Kajiji J. There is a distinction between an order which is wrong and an order without jurisdiction, as was pointed out in the well-known case of Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry I.L.R (1881) IndAp 123. The dividing line between error of jurisdiction and error of law is not, however, always clear. Where it is a question of jurisdiction, the Court not merely may but must correct the error, suo motu if necessary. Consent cannot give jurisdiction: Ledgard v. Sull , which was a case under the Patent Act which under the law could only have been brought in the District Court, It was held by their Lordships of the Privy Council that the defendant's consent would not operate as a waiver of the plea as to jurisdiction which was formerly taken in the written statement, or cure the defect of the suit being instituted in the subordinate Court.

8. The other extreme perhaps is a case such as Ramaya v. Devappa (1905) 7 Bom. L.R. 642, where at a local inspection under the Code of Civil Procedure the Subordinate Judge by consent recorded evidence in the village of inspection and not in his own Court, without demur by either party who cross-examined and re-examined the witnesses. It was held that the procedure did not affect jurisdiction and could pass. Similarly, where a reference was made in a suit for partnership not merely to take accounts but also to inquire as to who the partners were, and the defendants did not appeal against the preliminary decree made after such a reference, it was held that, in the absence of such appeal against the preliminary decree, it was too late for the defendants in the appeal against the final decree to object to the procedure: Ahmed Musaji Saleji v. Hashim Ebrahim Saleji (1914) L.R. 42 I.A. 91, s.c. 17 Bom. L.R. 432. These cases are in illustration of the difficulty caused by a wrong or mistaken procedure. It is impossible for the law to foresee all such errors of which parties might be capable or for the Courts to cause them to retrace their steps and adopt the correct procedure in such cases. It is often a lesser evil to allow incorrect procedure to stand if it does not affect jurisdiction or if by consent or by the absence of an appeal at the proper moment, the parties have allowed it to pass unchallenged. In the present case, as I have said before, I have power to recall the witnesses, if I so wish, examined before the Commissioner. The question whether defendant 1 was or was not engaged personally in agricultural labour has been decided by him on oral evidence which I have had no opportunity to see. And the difference in such examination viva voee and on commission is pointed out in this Court in Mowji v. Nemchand I.L.R (1899) Bom. 626, and by the Calcutta High Court in Amrith Nath Jha v. Dhunpat Singh Bahadoor (1873) 20 W.R. 253 .

9. In the view which I take, I am of opinion that the best way to set matters right would be to pass an order, referring the matter back to the Commissioner to record his finding on the question, whether the agricultural income of defendant No. 1 for the three years prior to suit dose or does not exceed his non-agricultural income and by recalling before me the evidence as to whether the defendant No. 1 himself engages personally in agricultural labour.

10. The parties will recall this evidence in Court before me on a day to be fixed in the usual course, so as to enable me, on the report by the Commissioner on the question of income and in the light of the evidence, to dispose of the preliminary issue as to the status of defendant No. 1 and the jurisdiction or otherwise of this Court in the present suit.

11. The question of costs is reserved till the finding and decision on the preliminary issue.


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