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Wazir Vs. Ratan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All165
AppellantWazir
RespondentRatan Singh and anr.
Excerpt:
.....alter that time. just as the law fixes a time within which the appeal against the original decree or decision must be presented, so in the like manner the objections to the supplementary findings on fresh issues remitted for trial under section 354 must be put in within the time fixed for the purpose. 7. it appears to me that a party who has failed to file a memorandum of objections within the time fixed by the appellate court under section 354, act viii of 1859, cannot afterwards claim as of right to be allowed to urge objections;.....determine the appeal. there is nothing in the law to the effect that an objection made after the time fixed shall not be listened to; and, indeed, when the court proceeds to determine the appeal in reference to the evidence submitted, any objection made, or suggesting itself in the course of the hearing, would necessarily have to he considered, whether a memorandum of it had been previously filed or not, unless the court determined the appeal by simply affirming without consideration the finding received. such a course is not one which the section directs the court to take in the event of no objection having been put forward in writing within the time specified. we are aware that it has been held that the objections cannot ho received after the time fixed, but so strict a ruling is, in.....
Judgment:

Robert Stuart, C.J.

1. I am clearly of opinion that objections to findings on remand, whether in writing or taken orally at the hearing of the appeal, may, with permission of the Court, ho considered. Whether such objections may be allowed as of right may he doubted. I am rather inclined to think that the hard line drawn by the language of the Code excludes them. But that, on the other hand, we may, in our judicial discretion and in the interests of justice and the legal requirements of a suit, permit such objections to be taken, I should be sorry to think there can be any doubt. This is a High Court of Judicature, and when the Code of Procedure is merely silent, and does not expressly prohibit any particular action, we are entitled to use all necessary and proper means and appliances, the power to permit or refuse which must reside within the inherent authority of a Court of Record.

2. My answer to this reference, therefore, is that the objections to which it refers, whether in writing or taken orally, may, with permission of the Court, be received and considered, hut that they cannot be admitted without such permission.

3. I may add that I have looked into the cases referred to in the order of reference and entirely concur in the rulings in the two cases of this Court Sheo Gholam v. Ram Jeawan Singh H.C.R. N.W.P. 1873 p. 114; Munrakhun Lall v. Raheem Buksh H.C.R. N.W.P. 1872 p. 72. One of them, that of Munrakhun Lall v. Raheem Buksh H.C.R. N.W.P. 1873 p. 72, was decided by Mr. Justice Pearson and myself, and 1 firmly and advisedly adhere to every word of our judgment. There we said: 'The terms of Section 354 are permissive; the parties may prefer objections within a specified time, after which the Appellate Court shall proceed to determine the appeal. There is nothing in the law to the effect that an objection made after the time fixed shall not be listened to; and, indeed, when the Court proceeds to determine the appeal in reference to the evidence submitted, any objection made, or suggesting itself in the course of the hearing, would necessarily have to he considered, whether a memorandum of it had been previously filed or not, unless the Court determined the appeal by simply affirming without consideration the finding received. Such a course is not one which the section directs the Court to take in the event of no objection having been put forward in writing within the time specified. We are aware that it has been held that the objections cannot ho received after the time fixed, but so strict a ruling is, in our opinion, beyond the terms, and not within the intention of the law. Here we allowed a week, and our meaning was that that should be the time at least; in other words, that a week should be allowed, subject to any further orders of the Court, for reasons assigned or cause shown.' That to my mind is a most satisfactory statement of the law on this point. The Calcutta cases Ashrufoonnissa Begum v. Stewart 9 W.R. 438; Woomesh Chunder Roy v. Jonardun Hajrah 15 W.R. 235 do not seem to apply, hut, so far as I can understand them, I dissent from their conclusions.

Pearson, J.

4. On full consideration I am of opinion that the intention of the law was effectively to limit the time within which objections might be taken to the findings submitted to the Appellate Court under Section 354. The words that either party may, within a time to he fixed by the Appellate Court, file a memorandum of any objection to the finding, imply that the memorandum may not be filed alter that time. It seems unreasonable to hold that, although an objection may not be preferred in writing, it may nevertheless be urged orally after the expiry of the fixed period. Such an interpretation would defeat the object of the law. Just as the law fixes a time within which the appeal against the original decree or decision must be presented, so in the like manner the objections to the supplementary findings on fresh issues remitted for trial under Section 354 must be put in within the time fixed for the purpose. The Court might probably, on application and sufficient cause shown, extend the time in the same manner as an appeal may be admitted after time on sufficient cause being shown for the delay in preferring it. The objections under Section 354 being of the nature of an appeal, Section 5, Act IX of 1871, might be applicable. I also presume that Sections 348 and 374 of the Code would be applicable in respect of finding's under Section 354.

Turner and Spankie, JJ.

5. If an appeal is presented from the decree of a Subordinate Court and in the memorandum of appeal no objection is taken to the finding of the Subordinate Court on a question of fact, the appellant cannot, of right, urge or be heard in support of the objection at the hearing; he must obtain the special leave of the Court. And although in deciding the appeal the Court is not confined to the grounds set forth by the appellant in his memorandum, it would not ordinarily, we apprehend, be justified in interfering with a finding of fact to which no objection had been taken in the memorandum of appeal, unless the appellant could show that from some sufficient cause the objection was not taken at the proper time. Now when it becomes necessary for the right determination of the suit on the merits that an Appellate Court should remit an issue to the Court below for trial, the Code in Section 354 directs the Court below to try the issue and return its finding with the evidence to the Appellate Court; it declares that such finding and evidence shall become part of the record and it authorizes either party, within a time fixed by the. Appellate Court, to tile a memorandum of any objection to the finding, and on the expiration of that period it directs the Appellate Court to proceed to determine the appeal. There is no provision empowering a party to take objection to the finding at any other time than within the period fixed by the Appellate Court. It cannot be contended then that either party is as a matter of right empowered to take an objection at the hearing which lie has neglected to take within the period allowed him by law.

6. There remains the question, can be do so by leave of the Court? After the return of the finding and evidence which by the terms of the law form part of the original record, the Appellate Court ought, in our judgment, to proceed as if the necessary issue had formed part of the record originally submitted to it, with this difference, that it must determine not only the pleas in appeal but also any objection preferred within due time to the finding on the issue remitted--and in determining the appeal the Court is not deprived of the powers conferred on it by Section 334. The finding on the issue remitted falls within those powers as much as the findings on the issues originally tried. If this be so, it follows that the Court might at the hearing allow a party to urge an objection to the finding which had not been taken at the proper time, and in deciding the appeal is not confined to the grounds set forth in the original memorandum or in any statement of objections to the finding on the issue remitted taken within due time; but the Court ought not as a matter of course to allow an objection to be urged which has not been taken at the proper time; it should satisfy itself that there are grounds which warrant the indulgence.

Oldfield, J.

7. It appears to me that a party who has failed to file a memorandum of objections within the time fixed by the Appellate Court under Section 354, Act VIII of 1859, cannot afterwards claim as of right to be allowed to urge objections; hut I do not consider that it was intended to leave no discretion to the Court whether it should admit objections, either orally or in writing, after the time fixed had expired. I apprehend that the Appellate Court can always extend the time within which the written memorandum of objections can be filed.


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