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Hazarimal Panaji Vs. Tilokchand Deepaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 550 of 1979
Judge
Reported inAIR1982Mad175; (1982)2MLJ115
ActsCourts Act, 1882 - Sections 38; Code of Civil Procedure (CPC), 1908 - Sections 9, 11 and 115
AppellantHazarimal Panaji
RespondentTilokchand Deepaji
Advocates:Himmatmal Mardia, Adv.
Excerpt:
.....was filed in the high court. ;the question that arose for consideration was whether a later new trial bench had jurisdiction to sit in judgment over the decision of the earlier bench. ;held, the judgment of the new trial bench under revision is in excess of its jurisdiction. the learned judges were faced with a decision inter parties in the same suit on the same issue as to the maintainability of the suit. the decision had also become final as between the parties. that being so, the right or wrong of that decision was not available for being reagitated by the defendant either in the same or in any other forum, in any case, the later bench had no jurisdiction to set in judgment over the decision of the earlier bench, much less proceed to a different conclusion. ;the principle here..........since the promissory n0te relied on by the plaintiff was insufficiently stamped.3. the trial judge accepted the defendant's plea and dismissed the suit. on application by the plaintiff for a new trial, the new trial bench held that although the promissory note was in sufficiently stamped, the suit was laid by the plaintiff, not on the promissory note, but on the original cause of action. the bench accordingly held that the trial judge was in error in dismissing the suit as not maintainable. in that view, the bench remitted the suit for a trial on the merits.4. on remand, the trial judge heard evidence on both sides. the plaintiff gave testimony at the witness box and also marked a receipt and an, entry in his accounts to prove the advance. the defendant in his deposition.....
Judgment:
1. This is a revision from the Court of Small Causes, Madras. It arises out of a suit for recovery of Rs. 500. The plaintiff's case was that the defendant took the money from him undertaking to return it the same day, but did not do so. The plaint also referred to a promissorv note handed over by the defendant as security for the advance.

2. The defendant opposed the suit. His plea in defence was that, the suit was not maintainable since the promissory n0te relied on by the plaintiff was insufficiently stamped.

3. The trial Judge accepted the defendant's plea and dismissed the suit. On application by the plaintiff for a new trial, the New Trial Bench held that although the promissory note was in sufficiently stamped, the suit was laid by the plaintiff, not on the Promissory note, but on the original cause of action. The Bench accordingly held that the trial Judge was in error in dismissing the suit as not maintainable. In that view, the Bench remitted the suit for a trial on the merits.

4. On remand, the trial Judge heard evidence on both sides. The plaintiff gave testimony at the witness box and also marked a receipt and an, entry in his accounts to prove the advance. The defendant in his deposition denied the transaction. The learned Judge disbelieved the defendant's evidence. Holding that the plaintiff had proved the suit debt, he gave judgment for the plaintiff.

5. This time it was the turn of the defendant to approach the New Trial Bench. The Bench, however, agreed with the trial Judge's conclusion that the defendant did borrow the money from the plaintiff and it remained unpaid. Having confirmed the trial judge's findings on the merits, in this manner, the Bench nevertheless entered upon an inquiry into whether the suit itself was maintainable, on the plea of the defendant that it was laid on an insufficiently stamped promissory note. The learned the decision of the earlier Bench on the same point, but disagreeing with that conclusion, they proceeded to hold that the suit was not maintainable. on the basis of this conclusion, they allowed the defendants new trial application and dismissed the plaintiff's suit.

6. In this revision by the plaintiff, his learned counsel Mr. Himmatmal Mardia did not have to argue the question whether the suit was or was not maintainable. He said the question does not arise, because it was already concluded by a decision of the earlier New Trial Bench in this case. He said that the defendant had not questioned that decision by filing a revision against it. The decision had thus become final as between the parties. What is more, the defendant participated at the trial on the merits of the suit, claim, after its remand bv that Bench. Mr. Mardia said that, in the events that happened, the subsequent New Trial Bench had no Jurisdiction to reopen the issue.

7. I up hold this contention as well formed. I hold that the judgment of the New Trial Bench under revision is in excess of it jurisdiction. The learned Judges were faced with a decision inter partes in the same suit on the same issue as to the maintainability of the suit. The decision had also become final as betw1en the parties. That being so, the right or wrong of that decision was not available for being regiatated by the defendant either in the same or in any other forum. In any case, the later Bench had no jurisdiction to sit in Judgment over the decision of the earlier 'Bench, much less proceed to a different conclusion.

8. The principle here involved is more fundamental than the principle of res judicta. For, at the stage when the stamped promissory note. Judges had before them defendant raked up the question of maintainability of the suit before this Bench, it had become a non-issue between the parties, and not merely one on which there was already a concluded adjudication.

9. Going back on what one has said before is not permitted to any rational human being, least of all to learned Judges. Such a thing would be quite glaring if it occurs in the same proceeding at the hands of the same Judge. That it has occurred in this case at differential stages before two different Benches does not make any difference. It has still to be condemned as non-judicial, and in excess of jurisdiction.

10. This conclusion is too plain to need any case law to support it. However, out of respect for Mr. Mardia, I would just refer to Krishnaswami Reddiar V. Muthu Reddiar, , which he cited as an authority.

11. The result is that the judgment under revision is set aside and the decree dated 11 th March 1976 passed by the Second Judge is restored. No costs.

12. Revision allowed.


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