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Julien Marret Vs. Mahomed Khaleel and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad443; 103Ind.Cas.31; (1927)53MLJ375
AppellantJulien Marret
RespondentMahomed Khaleel and anr.
Cases ReferredPestonji M. Mody v. The Queen Insurance Co.
Excerpt:
.....to be decided. in our view the construction of a difficult document is a mixed question of law and fact and as regards the law we are clearly of the opinion that it is a substantial question. it is perfectly clear that in cases of negligence which causes damage to anybody, 99 cases out of 100 raise questions of. the burden of showing that negligence in solicitors is on a different footing from negligence in a railway company or a tramway company or an individual is clearly upon the appellants and no authority has been cited to us as holding that in the case of solicitors what in the case of everybody else is a question of fact becomes a question of law. it is perfectly clear also from other decisions of the privy council that where the privy council have before them concurrent findings..........our decision with regard to the first respondents.2. with regard to the second respondents, messrs. king and partridge, the case is entirely different. the case against them was a claim for damages for negligence. it is contended here that the question of negligence of the second respondents is a question of law. it is perfectly clear that in cases of negligence which causes damage to anybody, 99 cases out of 100 raise questions of. fact and it has been held over and over again that questions of negligence are questions of fact. it is argued by the appellants that in the case of the second respondents who are solicitors it is a question of law as to whether upon the facts as found by us we ought not in law to have held that messrs. king and partridge were guilty of negligence. we.....
Judgment:
ORDER

1. This is an application for leave to appeal against our decision. The respondents are Khalil Shirazi & Sons, the first respondents and Messrs. King and Partridge, second respondents. With regard to the first respondents we are clearly of the opinion that there is a substantial question of law to be decided. We had considerable difficulty ourselves in construing what was called in the course; of the trial the Indemnity bond. In our view the construction of a difficult document is a mixed question of law and fact and as regards the law we are clearly of the opinion that it is a substantial question. Therefore without saying anything more we grant the application of the appellants and give them leave to appeal against our decision with regard to the first respondents.

2. With regard to the second respondents, Messrs. King and Partridge, the case is entirely different. The case against them was a claim for damages for negligence. It is contended here that the question of negligence of the second respondents is a question of law. It is perfectly clear that in cases of negligence which causes damage to anybody, 99 cases out of 100 raise questions of. fact and it has been held over and over again that questions of negligence are questions of fact. It is argued by the appellants that in the case of the second respondents who are solicitors it is a question of law as to whether upon the facts as found by us we ought not in law to have held that Messrs. King and Partridge were guilty of negligence. We see no authority whatever for that contention. The burden of showing that negligence in solicitors is on a different footing from negligence in a railway company or a tramway company or an individual is clearly upon the appellants and no authority has been cited to us as holding that in the case of solicitors what in the case of everybody else is a question of fact becomes a question of law. Even in the case of a suit for damages for malicious prosecution whilst in England it is a question of law for the Judge and of fact for the jury, here it has been held to be entirely a question of fact for the Judge and that was held in Pestonji M. Mody v. The Queen Insurance Co. ILR (1900) B 332 : 1900 10 MLJ 300, a decision of the Privy Council. It is perfectly clear also from other decisions of the Privy Council that where the Privy Council have before them concurrent findings of fact they will not interfere unless some principle of law or procedure has been violated. In this case Mr. justice Waller on the Original Side found that Messrs. King and Partridge had not been guilty of negligence. The case came before us on appeal and we have upheld that finding. These are concurrent findings. It may be that in the course of our judgment we have given different reasons to those given by Mr. Justice Waller but it is the finding that matters and not the reasons which cause the finding to be arrived at. There has been an entire failure on the part of the appellants to show us that we have violated any principle either of law or procedure. Therefore this application for leave to appeal so far as our judgment is concerned with regard to the second respondents must be dismissed with taxed costs in favour of the second respondents. The appellants will get their costs against the first respondents.


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