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In Re: Adiraju Somanna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad634; (1938)2MLJ100
AppellantIn Re: Adiraju Somanna
Cases ReferredBalakrishna Udayar v. Vasudeva Aiyar
Excerpt:
.....certificate act, indian arbitration act, provincial insolvency act etc. 13. the revisional jurisdiction which i am now invited to exercise is necessarily of an exceptional character and cannot be invoked except in furtherance of justice. i am afraid the learned district judge had no clear conception of the law on the subject and even if he had, he has certainly failed to apply it to the facts of this case. it is usuaily unnecessary and in any case unsafe to indulge in generalisations......would show that it is inapplicable. the only question then is whether section 115 of the code of civil procedure does not authorise the high court to revise the order.6. the learned government pleader has placed reliance in support of his contention on a number of decisions and on going through them i find that the rulings given in in the matter of the petition of kedar nath i.l.r. (1908) all. 59, in the matter of the petition of kashi nath and others i.l.r. (1923) all 676 and maganbhai v. dinkarrao i.l.r. (1932) 56 bom. 577 have either merely followed in the matter of the petition of madho ram i.l.r. (18999) all 181 or held that an order passed under section 36 of the legal practitioners' act was capable of being revised under section 15 of the high courts act or section 107 of the.....
Judgment:

Abdur Rahman, J.

1. This is a petition for revision against the order passed by Mr. Mack, District Judge of East Godavari at Rajahmundry, declaring the petitioner to be a tout under Section 36 of the Legal Practitioners' Act.

2. A preliminary objection has been raised by the Government Pleader to the effect that the order passed by the lower Court is not open to revision. The point is of considerable importance as it involves the question of valuable rights of a citizen and has therefore to be carefully examined.

3. The contention raised by the Government Pleader is based on the addition of Sub-clause. (2) to Section 224 of the Government of India Act, 1935, which did not find a place in the corresponding Section 107 of the prior Act of 1919. Sub-clause. (2) of Section 224 of the present Act reads as follows :

Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision.

4. Basing his reliance on the amendment, the Government Pleader contends that the High Courts in India could revise orders, similar to the one in question now, either under Section 15 of the High Courts Act or later under Section 107 of the Government of India Act (1919) before the new Act came into force,but this power has been taken away by the above-stated amendment. He further urges that the provisions contained in Section 115 and Section 439 of the Code of Civil and Criminal Procedure respectively have no application and the High Court is thus not entitled to revise the order although it is admitted by him that in a suitable case, a petition by way of a writ of certiorari might be competent.

5. The amendment contained in the new Government of india Act makes it clear that the High Court would not be entitled to revise the order in question under Section 224 of the Act, if it is not capable of being revised under any other provision of law. I am also in agreement with the contention that Section 439 of the Code of Criminal Procedure would have no application to the present case. A bare perusal of the section would show that it is inapplicable. The only question then is whether Section 115 of the Code of Civil Procedure does not authorise the High Court to revise the order.

6. The learned Government Pleader has placed reliance in support of his contention on a number of decisions and on going through them I find that the rulings given in In the matter of the petition of Kedar Nath I.L.R. (1908) All. 59, In the matter of the petition of Kashi Nath and others I.L.R. (1923) All 676 and Maganbhai v. Dinkarrao I.L.R. (1932) 56 Bom. 577 have either merely followed In the matter of the Petition of Madho Ram I.L.R. (18999) All 181 or held that an order passed under Section 36 of the Legal Practitioners' Act was capable of being revised under Section 15 of the High Courts Act or Section 107 of the Government of India Act (1919). The last proposition is undoubtedly sound but, as already held by me, has been rendered useless for this purpose by the addition of the amendment to the present Government of India Act. As for In the matter of the petition of Madho Ram I.L.R. (1899) All 181 one would have to examine the pronouncement with respect and care that it deserves as it comes from an eminent Chief Justice like Strachey, C.J., before one respectfully agrees with his conclusion or begs to differ from it with deference. On an examination of this decision I find that although it has been stated in general terms that the provisions of Section 622 of the Code of Civil Procedure (1882) do not apply the learned Chief Justice has given no reason for this opinion. This was probably considered to be unnecessary as it was found that the High Courts had very wide powers of superintendence under Section 15 of the High Courts Act, and could in a suitable case interfere with an order passed by a Subordinate Court. Moreover the ground token in that decision was that the finding was against the weight of evidence. This ground was not available in revision and the petition was dismissed for that reason. It was unnecessary to decide any further. In the circumstances any expression of opinion by the learned Chief Justice on the point that the provisions of the Code of Civil Procedure are inapplicable must be held to be obiter. In view of the situation which has now come into existence on account of the addition to sub-clause. (2) to Section 224 of the Government of India Act and in the absence of either any reasons having been specified in In the matter of the petition of Madho Ram I.L.R. (1899) All. 181 or the finding on this point to be essential, one would have to examine the terms of Section 115 of the Code of Civil Procedure carefully before one could arrive at a conclusion one way or the other. Before I examine this section, I must say a few words in regard to a Madras case, Varada-chariar v. Kalyanasundaram Aiyar (1922) 44 M.L.J. 437 which was decided by an eminent Judge of this Court. A. study of that decision however shows that the point which I have been called upon to decide in this case was neither raised before nor considered by him. He had merely laid down that inasmuch as no procedure was provided for an enquiry under Section 36 of the Legal Practitioners' Act, the Court should adopt a procedure which does substantial justice to the parties and the provisions of Order. 7, Rule. 11, Civil Procedure Code, would not apply to the proceedings. This is surely no authority for the contention raised by the learned Government Pleader.

7. The Government Pleader had also cited Chatur Bhuj v. The Crown I.L.R. (1930) Lah. 385 in support of his contention. There is an observation in that case by Jai Lal, J., that the proceedings under Section 36 of the Legal Practitioners' Act are of a quasi criminal nature but this was made in order to hold that the consent of the person complained against would not validate the otherwise invalid proceedings. It may be, that according to the practice of that Court, revisions from the orders passed under Section. 36 of 'the Legal Practitioners' Act are entertained as Criminal Revisions but in view of what I have stated above, I am of the opinion that Section 439 of the Code of Criminal Procedure would not apply to a case of this kind and the proceedings would not be open to revision under the provisions of the Code of Criminal Procedure.

8. As for the authorities cited by Mr. Somasundaram on behalf of the petitioner, I find that the learned Judges merely assumed jurisdiction in the decision cited namely, In re Somayajulu Ramamurthi (1912) M.W.N. 959, In re Jonnalagedda Sambayya (1915) 28 I.C. 918 and Keramat Ali v. Emperors without any discussion, which they undoubtedly had in any case before the new Government of India Act (1935) came into force and these cases are therefore of no assistance to me in deciding this point. There are some pertinent observations by an eminent Judge of the Calcutta Court in Hart Charan Sircar v. District Judge of Dacca (1910) 11 C.L.J. 513 but even this decision affords no help to me. In the absence of any reference in that ruling to Section 622 of the Code of Civil Procedure I must presume that the provisions of that section were not examined by the learned Judge in that case. The other two cases which were relied on by the Counsel for the petitioner are Bavu Sahib v. The District Judge of Madura : (1903)13MLJ272 where a portion of the proceedings were ordered to be cancelled under Section 622 of the Code of Civil Procedure by a Bench of this Court consisting of no less eminent a Judge than Bashyam Aiyangar, J., and another Judge. This case was followed by Walsh, J., in In the matter of the petition of Kalka Prasad and others I.L.R. (1917) All. 153 where in spite of the fact that the two cases of the Allahabad Court namely, In the matter of the petition of Madho Ram I.L.R. (1899) All 181 and In the matter of the petition of Kedar Nath I.L.R. (1908) All 59 were brought to his notice, he decided to prefer the decision in Bavu Sahib v. The District Judge of Madura : (1903)13MLJ272 and held that the High Court could interfere in a revision under Section 115 of the Code of Civil Procedure and did not consider that it was necessary to invoke the aid of the superintendence section in the Government of India Act.

9. In this state of divergence of opinion amongst the learned Judges of different High Courts, it becomes all the more necessary to examine the provisions of the Code of Civil Procedure more closely.

10. A reference to Section 115 would show that the High Court is competent to make such order as it thinks fit, if it finds that a case has been decided by any Court Subordinate thereto, and in which no appeal lies, if such subordinate Court has either acted beyond or failed to exercise a jurisdiction or has acted in the exercise of its jurisdiction illegally or with material irregularity. It cannot be denied that the District Judge was acting in this case as a Court and not in an administrative capacity. The question then is whether the finding given by him against the petitioner and declaring him to be a tout would amount to a decision of the case pending before him. It has been held by their Lordships of the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar (1917) 33 M.L.J. 69 : L.R. 44 IndAp 261 : I.L.R. 40 Mad (P.C.) that the term 'case' used in Section 115 of the Code is wider than the word 'suit' in which a plaintiff seeks to obtain a particular relief. Their Lordships have recorded their finding in the following words:

It was next contended that the matter of the four petitions in which the order of the 19th July, 1913, was made, did not constitute a 'case' within the meaning of the 115th Section of the Code of Civil Procedure. No definition is to be found in the Code of the word 'case'. It cannot, in their Lordships' view, be confined to a litigation in which there is a plaintiff who seeks to obtain particular relief in damages or otherwise against a defendant who is before the Court. It must, they think, include an ex parte application, such as that made in this case, praying that persons in the position of trustees or officials should perform their trust or discharge their official duties. Their Lordships concur, therefore, with the High Court in thinking that the matter adjudicated upon was a case within the meaning of the 115th Section of the Code,

11. Applying the abovementioned principle enunciated by their Lordships, I see no justification in rejecting the contention that the decision by the District Judge of the proceedings pending before him in which the petitioner was declared to be a tout would fall within the scope of Section 115 of the Code of Civil Procedure. In a number of cases arising under other enactments like the Guardian and Wards Act, Succession Certificate Act, Indian Arbitration Act, Provincial Insolvency Act etc., it has been held by various High Courts that the orders passed by Subordinate Courts, if not declared to be appealable under the Special Acts, would none the less be capable of being revised under Section, 115, Civil Procedure Code. There is no reason to hold why the Legal Practitioners' Act should not be treated in pari materia with other special enactments.

12. Section. 36 of the Legal Practitioners' Act confers a special jurisdiction on Subordinate Courts and inasmuch as the attendance in Court is an important valuable civil right of a citizen it cannot be taken away from him by a Court if its jurisdiction has been exercised either illegally or with material irregularity. I would therefore hold that the decision of the District Judge is capable of being revised by me under Section 115, Civil Procedure Code.

13. The revisional jurisdiction which I am now invited to exercise is necessarily of an exceptional character and cannot be invoked except in furtherance of justice. I am consequently competent to scrutinise an order which seriously affects the petitioner's character and prospects with the object of satisfying myself if there has been a compliance by the lower Court with the provisions of the law. If I find that the order passed by the Court is justified by the evidence on the record I would decline to interfere with it. If on the other hand I find that there is no legal evidence on the record to justify the conclusion arrived at by the learned District Judge I would be constrained to interfere with his order. I might state here that as a Court of revision I cannot be expected to weigh the evidence which was led before the District Judge but if I find that there was no evidence at all from which the inference as drawn by the learned District Judge could be deduced I would have no alternative but to interfere.

14. With these remarks I shall first consider as to what is required by law to be proved against the petitioner before he can be declared to be a tout and then proceed to consider whether these requirements of law have been proved in this case. A tout has been defined by Section. 3 of the Legal Practitioners' Act to be:

A person (a) who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner, in any legal business; or who proposes to any legal practitioner or to any person interested in any legal business to procure, in consideration of any remuneration moving from either of them, the employment of the legal practitioner in such business; or(b)who for the purposes of such procurement frequents the precincts of Civil or Criminal Courts or of Revenue offices, or railway stations, landing stages, lodging places or other places of public resort.

15. Before a person can be declared to be a tout, it must be found for a fact that he has acted in a manner which will bring him within this definition. This necessitates an examination of the evidence on which the District Judge has acted in this case in order to ascertain whether there was any material on the record on which he was entitled to act and arrive at the decision that the petitioner was a tout.

16. Bearing the principles laid down by me in this judgment and the definition of a tout in mind, I shall address myself to the task of examining the facts and evidence in this case.

[His Lordship dealt with the evidence and concluded.]

17. In the absence of any evidence, oral or documentary, that any consideration was either received by the petitioner or demanded by him I am constrained to find that there is no evidence in this case from which the learned District Judge could have possibly drawn the conclusion against the petitioner. I am afraid the learned District Judge had no clear conception of the law on the subject and even if he had, he has certainly failed to apply it to the facts of this case. If he had taken the trouble of reading Section 3 of the Legal Practitioners' Act and not relied on his own previous decision which appear to have had nothing in common with the facts of this case, he would have, I am sure, come to a different conclusion. I may add that it is impossible to arrive at a finding on mere suspicions or conjectures. They can never be substitutes for evidence.

18. I must therefore hold that the learned District Judge has acted illegally and in any case with material irregularity in the exercise of his jurisdiction. The revision petition must therefore be allowed and the order passed by the District Judge quashed.

19. I cannot part with this case without adverting to the manner in which the lower Court has written its judgment. I should expect experienced officers to be more dignified and restrained in the expression of their opinion. They should try and avoid expressions which may attract a comment that the Judge had either made up his mind even before he had initiated proceedings or had identified himself with a case to an extent that he was unable to appreciate the case or weigh the evidence before him impartially and without any bias. It is usuaily unnecessary and in any case unsafe to indulge in generalisations.


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