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Badami Kuar Vs. Dinu Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All111
AppellantBadami Kuar
RespondentDinu Rai and ors.
Excerpt:
high court's powers of revision - civil procedure code, sections 622--'jurisdiction'--'illegality'--'material irregularity.' - - 49, and that the munsif consequently failed to exercise a jurisdiction vested in him, and that the record may be called for by this court in revision. (b) the decision having failed to determine some material issue of law or usage having the force of law. ' that is to say, to cases where the court below has, in the exercise of its jurisdiction, come to a decision which is contrary to some specified law or usage having the force of law, or failed to determine some material issue of law or usage......of law, or failed to determine some material issue of law or usage. then, with reference to the words 'material irregularity' in section 622 clause (c) of section 584 indicates their meaning thus: 'a substantial error or defect' in the procedure as prescribed by this code or any other law, which may possibly have produced error or defect in the decision of the case upon the merits.' in other words, i construe the words 'material irregularity' to mean some material irregularity in procedure 'which may possibly have produced error or defect in the decision of the case upon the merits.' as an illustration of my meaning i will put two cases. a munsif who is seised of a suit below rs. 500 in value, directs, in execution of the decree in the suit, that the tools of the judgment-debtor be.....
Judgment:

W. Comer Petheram, C.J.

1. I am of opinion that the question in this case must be answered in the affirmative. Section 20 of the Bengal Civil Courts Act enacts that the jurisdiction of the Munsif shall extend to suits in which the value of the subject-matter of the dispute does not exceed Rs. 1,000. The Munsif has held that he had no jurisdiction in this case, because the title to a larger sum than Rs. 1,000 was involved in the question whether the plaintiff was entitled to recover the sum of Rs. 49, for which alone the action was brought. I think that he was wrong in this view, as the only subject-matter in this suit was the Rs. 49, and that the Munsif consequently failed to exercise a jurisdiction vested in him, and that the record may be called for by this Court in revision. The section has been considered by the Privy Council in the case of Amir Hasan v. Sheo Bakhsh Singh I.L.R. 11 Cal. 6 and the Full Bench of this Court in the case of Magni Ram v. Jiwa Lal I.L.R. 7 All. 336 and the result of those cases in my opinion is that the questions to which Section 622 applies, are questions of jurisdiction only. To make my meaning plain, I understand the Privy Council to mean that if the Court has jurisdiction to hear and detemine a suit, it has jurisdiction to hear and determine all questions which arise in it, either of fact or of law, and that the High Court has no jurisdiction under Section 622 to inquire into the correctness of its view of the law, or the soundness of its findings as to facts; but that when no appeal is provided, its decision on questions of both kinds is final.

Straight, J.

2. I desire, in the first place, to say that I concur in the view expressed by the learned Chief Justice as regards the particular case referred. In the second place, I accede to the interpretation he has placed on the ruling of their Lordships of the Privy Council; and the reason I do so is, because it is most undesirable that, upon a question of practice of this kind, there should be a difference of opinion. I therefore surrender my own views in deference to the rest of the Court. But while doing so, I desire to make a few observations, because I was the Judge who wrote the judgment in the original Full Bench decision of the Court on this subject in Maulvi Muhammad v. Syed Husain I.L.R. 3 All. 203; and I am anxious briefly to repeat here the reasons upon which that judgment proceeded. As the section relating to this Court's powers of revision was originally drafted in Act X of 1877, it stood without the words in the present Code which have led to so much discussion; and there can be no doubt that at that time the jurisdiction of this Court depended purely on the question whether the Court below had improperly exercised its jurisdiction, or improperly refused to exercise it. In Act XII of 1879, amending Act X of 1877, the words 'in the exercise of its jurisdiction illegally or with material irregularity' were introduced; and I presume that they were introduced with meaning and intention, and were intended to have some effect aid operation. In order to ascertain what that meaning and intention was, it is necessary to look into the Code to see if it can be ascertained what was meant by the words 'illegally' and 'material irregularity.' Now in Section 584, which specifies the grounds on which a second appeal lies to the High Court, I find what appears to me to supply a reasonable interpretation for these words. The section seta forth that no second appeal shall lie, except on the following grounds, namely,--'(a) the decision being contrary to some specified law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law.' Taking these two clauses together, they appear to me to embody what Section 622 refers to in the word 'illegally;' that is to say, to cases where the Court below has, in the exercise of its jurisdiction, come to a decision which is contrary to some specified law or usage having the force of law, or failed to determine some material issue of law or usage. Then, with reference to the words 'material irregularity' in Section 622 Clause (c) of Section 584 indicates their meaning thus: 'A substantial error or defect' in the procedure as prescribed by this Code or any other law, which may possibly have produced error or defect in the decision of the case upon the merits.' In other words, I construe the words 'material irregularity' to mean some material irregularity in procedure 'which may possibly have produced error or defect in the decision of the case upon the merits.' As an illustration of my meaning I will put two cases. A Munsif who is seised of a suit below Rs. 500 in value, directs, in execution of the decree in the suit, that the tools of the judgment-debtor be sold. In such a case, an appeal would lie to the Judge; but there would be no second appeal to this Court. Here the Munsif makes an order which is contrary to law, because it is forbidden under Section 266 of the Code, and so he acts illegally. Again, a Munsif who has dismissed a suit ex parte entertains an application under Section 108 of the Code; and, without notice to the other side, orders that the suit be replaced upon his file and tried. This action on his part is a material irregularity in procedure, because it contravenes the directions of Section 109 to the effect that no such order shall be made without notice to the other side. These two instances appear to me to be such as the 'illegality' and 'material irregularity' of Section 622 contemplate.

3. I need only add that, in my opinion, if there is one power which it is of the first importance that this Court should possess, it is the power of sending for the record in civil cases where no appeal lies. Experience shows that in a very great many such cases grave illegalities and material irregularities do occur in the proceedings of the C was below; and it is essential that in such cases the High Court should have the power of interference.

Oldfield, J.

4. I concur in the i iswer proposed by the learned Chief Justice.

Brodhurst, J.

5. I entirely concur in the conclusions arrived at by the learned Chief Justice with referem to the decision of the Privy Council in the case of Amir Hasan Khai v. Sheo Bakhsh Singh I.L.R. 11 Cal. 6.

Tyrrell, J.

6. I concur in entry word that has fallen from my brother STRAIGHT upon this matter.


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