1. In this case the legal point we have to decide arises on the following facts. The District Munsif handed over charge to a successor without completing the trial of the suit, having been promoted as a Subordinate Judge. His successor finished the remaining portion of the trial, heard arguments and delivered judgment. Against the said decision there was an appeal and the former Munsif, who was promoted as Subordinate Judge, heard the appeal without any objection on the part of the appellant or respondent and decided the appeal confirming the judgment of his successor.
2. On second appeal the only ground which was seriously argued was that the Subordinate Judge was disqualified to hear and dispose of the appeal because he had, as Munsif, taken cognizance of the suit and had presided over its trial, though he had not heard the arguments or decided the case finally. Two other grounds Nos. 4 and 6 were feebly argued, but there is nothing in them as the slight mistake, probably a clerical mistake, as to the year of the alleged gift to the defendants is unimportant and no affidavit was filed in support of the sixth ground. We think that the legal contention is not valid. No case directly in point decided by any Indian High Court has been cited before us to support the appellant's contention. Section 17 of the Madras Civil Courts Act says: 'No District Judge, Subordinate Judge, or District Munsif shall try any suit to or in which he is a party or personally interested, or shall adjudicate upon any proceeding connected with, or arising out of such suit,
No District Judge or Subordinate Judge shall try any appeal against a decree or order passed by himself in another capacity.
3. As regards the first sentence quoted above, even without this statutory provision a Judicial Officer is, under the Common Law, disqualified from trying a suit to or in which he is a party or personally interested. It is, however, not clear that under such general principles, the disqualification is absolute. The interest which disqualifies a Judge must be pecuniary interest or one which involves some individual right or privilege or it must be an interest arising out of the near relationship of the Judge to a party to the cause. It has been held in numerous cases in the American Courts that in the absence of a Statute positively prohibiting a Judge from exercising jurisdiction over a cause to try which he is disqualified not by having had a pecuniary interest or by having been a party to or Counsel in the suit, but on account of some other cause such as bias or prejudice or relationship to a party, or by having presided over a former trial in the same suit, the general rule is that his decision in such a suit is only voidable and not void. That the interest must he a direct pecuniary interest or interest as a real party to the suit or interest by near relationship to a substantial party to the suit, has been held in several cases. Simply because a legal question is involved in a suit which might affect the Judge's pecuniary interest in connection with some other matter, the Judge is not disqualified. If he was merely a nominal party to a suit it has been held in some American cases that he is not disqualified from trying that suit, though Section 17 of the Civil Courts Act does not make any such distinction between the Judge being a nominal party or a really interested party. Mere bias or prejudice on the part of a Judge does not disqualify him in the absence of statutory provision. Even as regards relationship to a party to the cause a Judge was not under the common law disqualified by such relationship and it is only by Statute Law such a disqualification by reason of near relationship could be imposed upon a Judge (see on this question of disqualification of Judges, Cyclopaedia of Law and Procedure, Volume 23, pages 575 to 601).
4. We shall now consider the disqualification of a Judge to sit in an Appellate Court over his own decision. Under the Common Law, there is no disqualification imposed on a Judge to sit in his own Court in review of his own decision (it is so under the Statute Law also) or even to review it on appeal in the Appellate Court, if he becomes an Appellate Judge having appellate jurisdiction over the Tribunal in which he decided the cause as original Judge (see page 588 Clause H, Cyclopaedia of Law and Procedure). Section 17 of the Civil Courts Act, however, does introduce such a statutory disqualification as regards District and Subordinate Judges, but it is confined to the case where the appeal to be heard in the Appellate Court is against the decree or order passed by the District Judge or Subordinate Judge in another capacity. There is no such statutory disqualification where he has not himself passed the order or decree appealed against, though he might have partly tried the suit or proceeding in which the order or decree was afterwards passed by another Judge.
5. Where there is no Statutory or Common Law disqualification in the Judge of the Court below, an Appellate Court should not set aside the judgment of the lower Court on the mere ground that it might have been swayed by bias or prejudice. In other words, unless it is proved that circumstances existed which raised a reasonable presumption that the Judge of the lower Court was biassed, the Appellate Court should not interfere. Even in such a case unless objection was taken before the Judge of the lower Court itself at or during the trial of the cause to his hearing the suit or appeal (as the right to rely on the disqualification of a Judge by Common Law maybe waived by consent in many cases), the Appellate Court should not interfere except in a strong or clear case of failure of justice in the lower Court through such bias or prejudice.
6. The appropriate course in such cases was for the party to have applied to the proper superior Court to have the case transferred to another Court, The unsuccessful litigant in the lower Court who took his chance should not be allowed to take the objection for the first time in appeal.
7. In Halsbury's Laws of England, Volume 19, at page 552, it is said: 'if, however, the fact that a Justice is interested in the subject-matter of a case is known to the parties, and objection to his acting is waived, the proceedings are not rendered void; and where the objection is thus waived at the hearing, it cannot afterwards be raised.'
8. If this is so in the case of personal or pecuniary interest in the Judge, it must be much more so where the alleged disqualification is based merely on a probable bias in the Judge.
9. In the result the second appeal must be dismissed with costs.