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Zamindar of Tuni Vs. Bangaru Peda Bennayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1898)8MLJ304
AppellantZamindar of Tuni
RespondentBangaru Peda Bennayya and ors.
Cases ReferredAlinson v. General Council of Medical Education Registration
Excerpt:
.....there is no such presumption the party must not be allowed to question the impatiality of the judge, for that would mean an enquiry into the motives operating in the mind of the judge after the cause has been decided--a thing which is well nigh impossible, and even if possible will be too vague to afford a guiding principle. 758). if in a case like this it is open to an unsuccessful party to prove actual bias, it is not easy to see why in a case where a decision is pronounced by a person who is disqualified from interest or otherwise from giving such a decision, the successful party should not be entitled to support the decision by showing that the judge was not biassed in fact. that, of course, for obvious reasons, he is not permitted to do, and it seems to be equally reasonable..........decision is whether, assuming that the memorandum of appeal is open to the objection taken by the district judge, he had power to reject the appeal. no doubt the code of civil procedure does not make any provision as to how courts should deal with memoranda of appeal containing scandalous matter. but clearly courts possess inherent power to stop such an abuse of its records. for, as pointed out by story, ' scandal is calculated to do great and permanent injury to all persons, whom it affects, by making the records of the court the means of perpetuating libellous and malignant slanders; and the court, in aid of public morals, is bound to interfere to suppress such indecencies ' (equity pleadings, 270). there can be no doubt, therefore, that it was perfectly competent to the lower.....
Judgment:

Subrahmania Aiyar, J.

1. The appellant before us was the appellant in the lower appellate Court also. The memorandum of appeal, presented by him there, was returned to him for amendment on the ground that it contained language disrespectful to the Court of First Instance. It was, however, represented without amendment accompanied by a statement or petition to the effect that the imputations made in the paragraphs 1, 3 and 12 of the memorandum which were objected to, were borne out by the record and, therefore, they ought to be allowed to remain so as to entitle the appellant to rely upon them at the hearing; but that, if the Court still thought otherwise, the Court itself may direct them to be scored out.

2. The lower appellate Court thereupon rejected the memorandum under Section 543 of the Code of Civil Procedure.

3. The first point for determination is whether an appeal lies against the order of rejection. Now, Section 543, referred to, is apparently limited to cases in which the memorandum of appeal is not drawn up in accordance with the second paragraph of Section 541, which runs thus: ' Such memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed against without any argument or narrative; and such grounds shall be numbered consecutively ' (see Gulab Rai v. Mangli Lal I.L.R., 7 A. 42). The objection here, however, is that the memorandum contains scandalous matter and as the paragraph just quoted cannot be said to lay down any rule with reference to such a breach of the rules governing the frame of pleadings, Section 543 would seem to be inapplicable to a case like this. However this may be, the order appealed against must, following Ayyanna v. Nagabhooshanam. I. L. R. 16 M. 285 be held to be a decree within the meaning of the Civil Procedure Code. The objection that no appeal lies, therefore, fails.

4. The next point for decision is whether, assuming that the memorandum of appeal is open to the objection taken by the District Judge, he had power to reject the appeal. No doubt the Code of Civil Procedure does not make any provision as to how Courts should deal with memoranda of appeal containing scandalous matter. But clearly Courts possess inherent power to stop such an abuse of its records. For, as pointed out by Story, ' Scandal is calculated to do great and permanent injury to all persons, whom it affects, by making the records of the Court the means of perpetuating libellous and malignant slanders; and the Court, in aid of public morals, is bound to interfere to suppress such indecencies ' (Equity pleadings, 270). There can be no doubt, therefore, that it was perfectly competent to the lower appellate Court to have caused the objectionable passages, if any, in the memorandum to be expunged. But had the Court power to reject the appeal altogether No such power is given to the Courts by any statutory provision. And, on general principles, it is not possible to hold that Courts have such power, at all events, in cases in which the objectionable matter is separable from what is unobjectionable. It seems to me that all that a Court is entitled to do in such cases is to cause the portions open to objection to be expunged. For, even taking that an appellant, by refusing to comply with an order for amendment such as that passed in the present instance by the District Judge, is guilty of a contempt, still it cannot be said that until the contempt is purged the party cannot be heard and is debarred from claiming that the appeal be proceeded with. [Ricketts v. Mornington 7 Simon 200; Wilson v. Bates 3 My. & Cr. 197 and Haldane v. Eckford I.L.R. 7 Eq. 425 in my opinion, support the above view. In the last mentioned case, the defendant was held entitled to take any step required for the purposes of his defence, although the contempts committed by him were of the most flagrant kind. I am, therefore, of opinion that, assuming that the memorandum of appeal in question does contain scandalous matter, still it was not open to the lower appellate Court to reject the appeal, the alleged objectionable portions of the memorandum being quite separate from the rest.

5. The third and last point for consideration is whether the memorandum does contain scandalous matter. In dealing with a question like this two rules have to be borne in mind, viz., that, as urged for the appellant, what is relevant cannot be scandalous and that Courts ought not to dictate to parties how they should frame their cases, provided of course the rules of pleading are not contravened in the frame of their cases--the latter a rule which Bowen, L. J., said should be kept sacred (Knowles v. Roberts 38 Ch. Dn. 270). In the light of these rules the only paragraphs which, in my opinion, call for notice in connection with the point under consideration are 1, 3 and 12. In the first of these the District Munsif is charged with having decided the case against the appellant in consequence of a grudge entertained by that officer against the appellant arising from the latter having applied for a transfer of the case from the file of the Munsif's Court. In paragraph 3 the judgment of the District Munsif is stigmatised as given from 'more of spite than a real desire to give substantial justice'' and in the 12th paragraph the Munsif is charged with 'extreme partiality to the defendants and against the plaintiff.'

6. There can be but one opinion as to the character of these imputations. It is no doubt open to an appellant to set up any circumstance showing that the Judge whose decision is appealed against was disqualified from trying and deciding the case. It is also quite true that, when a Judge is shown, in the language of Lord Esher, M. R., to stand in such a position that he might be reasonably suspected of being biassed, he must be held to have been disqualified, [Alinson v. General Council of Medical Education Registration 1894, I. Q. B. Dn. 750. But is an appellant at liberty to show that in the particular case the Judge was biassed in fact It may seem at first sight that he would afortiori be entitled. No doubt anything which tends to impeach the impartiality of a Judge ought to render him incompetent to decide the case, in order that the administration of justice may not be brought into discredit. And hence in cases where any bias can be presumed, the party is entitled to show the grounds which raise that presumption. These grounds may generally be definable beforehand. But where there is no such presumption the party must not be allowed to question the impatiality of the Judge, for that would mean an enquiry into the motives operating in the mind of the Judge after the cause has been decided--a thing which is well nigh impossible, and even if possible will be too vague to afford a guiding principle. This might have been probably in the mind of the Master of the Rolls when he said in the case referred to,' the question is not whether he (the person whose decision was in question there) was or was not biassed. The Court cannot inquire into that' (Ib. 758). If in a case like this it is open to an unsuccessful party to prove actual bias, it is not easy to see why in a case where a decision is pronounced by a person who is disqualified from interest or otherwise from giving such a decision, the successful party should not be entitled to support the decision by showing that the Judge was not biassed in fact. That, of course, for obvious reasons, he is not permitted to do, and it seems to be equally reasonable that in a case like the present averment or proof of the existence of actual bias should be disallowed. The appellant was, therefore, not entitled to make the imputation of actual partiality contained in the paragraphs of the memorandum, referred to above which consequently must of course be held to be scandalous. In reversal of the lower appellate Court's order, I would direct that the objectionable passages in question be expunged and the memorandum of appeal be admitted and proceeded with according to law. In the circumstances of the case, I would make the appellant bear his own costs' and those of the 7th respondent up to this date irrespective of the result of the case.

7. Moore, J.--I agree with my learned colleague in considering, that there is an appeal against the order of the District Judge inasmuch as it amounts to a decree. I feel, however, some doubt, as to whether it can be held that when the District Judge returned for amendment the appeal petition presented by the vakil on the ground that it contained scandalous imputations against the District Munsif who had tried the case and when the vakil refused to amend, it was not open to the Court to reject the appeal absolutely. The facts of the case were briefly as follows: The vakil stated in the appeal petition that the judgment of the District Munsif appealed against was a 'production more of spite than a real desire to give substantial justice,' and that his remarks in it showed ' his extreme partiality to defendants and against plaintiff.' This petition was, returned for amendment as it was couched in language disrespectful to the Court and as the District Judge was of opinion that ' such, pleadings could not be entertained under No. 6 of the Civil Rules, of Practice relating to Pleadings' (p. 134). The vakil, however, represented the petition in its original form, refused to amend it, and in his further petition stated that if he had not urged the grounds of appeal objected to by the District Judge, i.e., those) suggesting personal spite and extreme partiality, he would have been found fault with by the District Court at the hearing of the appeal and also by the High Court in second appeal for not having raised such pleas. In making these observations, the vakil was, in my opinion, guilty of contempt in a most aggravated form. On receiving, this petition the District Judge rejected the appeal. He should, in my opinion, have returned the appeal petition and refused to 2 receive it till the objectionable remarks to be found in it had been expunged. This was what was done in the case of In re Olive Durant I.L.R., 15 B. 488 and is, I presume, the course that this Court, by the rule of Practice above mentioned, intended that subordinate Courts should adopt in such cases. It is, in my opinion, no part of the duty of a judicial officer to revise petitions presented to it containing scandalous and offensive matter and purge them of such objectionable phrases as may be found in them. Petitioners should be obliged to perform this task themselves, and if they neglect to do so within the time prescribed for the presentation of their appeal or petition, should suffer by the same being rejected as being out of time. I, however, do not object to the order proposed by my learned colleague in the present case being passed as, if the appeal petition now under consideration was again returned to the vakil, so that the District Judge's order of the 18th February 1897 might be obeyed, he would be prevented by the Law of Limitation from re-presenting his appeal petition after it had been purged. It would be unjust to allow the client to suffer so severely for the fault of his vakil.


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