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Krishnarao Bhaskar Phadke Vs. Lakshman Ramchandra Gavli - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Reference No. 8 of 1928
Judge
Reported in(1928)30BOMLR1627; 118Ind.Cas.692
AppellantKrishnarao Bhaskar Phadke
RespondentLakshman Ramchandra Gavli
Excerpt:
civil procedure code (act v of 1908), order xlvi, rule 5-reference to high court-power of high court to quash the reference.;under order xlvi, rule 5, of the civil procedure code, 1908, the high court has power to quash the order of reference made by the lower court. - .....to any disappointed litigant supposing there was a substantial point of law to be decided. the learned judge, however, instead of deciding the matter between the parties, has referred it to us on certain points of law, which, he says, arise in the case. those points are said to arise under the indian limitation act and to be of such a nature as to have caused disagreement between various high courts in india. those several decisions are accordingly set out in the reference, but in paragraph 9 the learned judge says:-' it seems to me that each case depends on its own facts and has to be decided on its own merits.' so much for the case itself.2. looking at the matter next from a practical point of view, the learned judge sent the above reference to this high court shortly before the.....
Judgment:

Amberson Marten, Kt., C.J.

1. We directed this reference under Order XLVI of the Civil Procedure Code by Mr. Padki, the learned First Class Subordinate Judge of Ratnagiri, to be set down before us for directions. He has referred the case to us under Order XLVI, Rule 1. It is a case involving only Rs. 300 and is being tried by him in the exercise of Small Cause Court powers. Although then there may be no right of appeal, there would be a right in revision to any disappointed litigant supposing there was a substantial point of law to be decided. The learned Judge, however, instead of deciding the matter between the parties, has referred it to us on certain points of law, which, he says, arise in the case. Those points are said to arise under the Indian Limitation Act and to be of such a nature as to have caused disagreement between various High Courts in India. Those several decisions are accordingly set out in the reference, but in paragraph 9 the learned Judge says:-' It seems to me that each case depends on its own facts and has to be decided on its own merits.' So much for the case itself.

2. Looking at the matter next from a practical point of view, the learned Judge sent the above reference to this High Court shortly before the long vacation with a request for urgency, and he has followed it by certain correspondence asking that the matter may be disposed of promptly as he wishes to deliver his judgment. The practical answer is that at present with our insufficient number of Judges, it is quite impossible to give priority to a small matter of this sort and thus to give it priority over a large number of appeals, some of which have been waiting for three or more years. The course the learned Judge has taken is, in any event, an unusual one as far as my experience goes. I do not say that this Order may not on proper occasions be resorted to. But if important points of law are to be decided by this High Court, I prefer that they should arise in cases where substantial amounts are involved and where we can have the advantage of the arguments of pleaders on both sides. In the present case, there is no appearance for the respondent, and this High Court was obliged to ask Mr. Manerikar to act as amicus curice for the purpose of arguing this case for the respondent.

3. The practical question, therefore, is this: If we give this reference its normal place in the list, then as far as I can see, having regard to the other appeals which have priority, it would not be heard for some eighteen months or more. Under these circumstances ought we to allow it to remain on the file of this Court any longer ?

4. So far as Order XLVI, Rule 5, is concerned, we have, of course, power to return the case for amendment. We also have power inter alia to 'cancel any...order which the Court making the reference has passed, and make such orders as 'we think fit. I think that rule is wide enough to enable us to quash the order of reference itself which the learned Judge has made. I would, therefore, quash it accordingly.

5. But, apart from that, we have inherent powers under Section 151 of the Civil Procedure Code to make any order that may be necessary for the ends of justice, and in this small reference my own view is that the ends of justice require that the learned Judge should give his judgment, or else the ease will have to stand over for some eighteen months or more before it is reached in the appellate Court. Mr. Padki, however, who originally heard this case, has now been transferred, at any rate, temporarily to another Court. Whether he will eventually return to Ratnagiri. I do not know. But if he does not, then this case will have to be heard, I am sorry to say, by another Judge.

6. We pronounce no opinion on the merits of the case nor on the points of law that are alleged to arise.

7. Our order is that the order of reference to us be cancelled, and that the papers be returned to the Court of the First Class Subordinate Judge with directions to hear and determine the case according to law.

8. As regards costs, this reference is no fault of the plaintiff. Apparently, the learned Judge was prepared to pass judgment in his favour because he finds at the end : 'lam of opinion for the reasons stated that Article 80 of the Limitation Act applies to the case and that the entire claim is in time.' The plaintiff's costs of this reference should be costs in the cause,

Murphy, J.

9. I agree with the judgment of the Honourable the Chief Justice.


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