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Amiya Kumar Mukherjee Vs. Jagannath Ghosh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3779 of 1980
Judge
Reported inAIR1987Cal15
ActsPresidency Small Cause Courts Act, 1882 - Sections 11 and 38
AppellantAmiya Kumar Mukherjee
RespondentJagannath Ghosh
Appellant AdvocateA.K. Matilal, Adv.
Respondent AdvocateMrinal Kanti Roy, Adv.
DispositionRevision dismissed
Cases ReferredDilip Kumar Roy v. Sanatan Tewari
Excerpt:
- .....premises. for this reason, no water came out of the plaintiff's tap. it was a case of stoppage of water supply and not a case of low pressure supply. it was held that the plaintiff had proved this part of his case. the defendant did not even cross examine him on this point. it was hence clear that the defendant's action in lowering his own tap was the cause of stoppage of supply of water to the plaintiff. on the question of amount paid by the plaintiff for purchasing water from outside the full bench held that there was no reason to disbelieve the plaintiffs statement on the point which was supported by the documents. ultimately, the full bench came to the finding that the findings of the learned judge were against the weight of evidence. the order of the trial judge was set aside and.....
Judgment:
ORDER

Satish Chandra, C.J.

1. This is a defendant's application in revision. The suit was for recovery of Rs. 2133.33.

2. The plaintiff-opposite party alleged that he was a monthly tenant in the premises. Since 1970, the defendant was the landlord. The defendant had agreed that he will supply tap water to the plaintiff from 8.30 a.m. to 9.30 a.m. and 3.30 p.m. to 5.30 p.m. But since Mar. 1975 the defendant stopped the supply of water. The plaintiff had to purchase water from outside through a water carrier. He had to pay Rs. 2133.33 for it from May 1975 to Aprl. 1978. The defence was that the Corporation supplied water at low pressure. Hence the difficulty. The defendant was not responsible. He denied the claim.

3. The Judge of Small Causes Court held that the low pressure of the water supplied by the Corporation, was the cause of non-supply of water to the plaintiff. The defendant was not liable. The plaintiff's case that he had paid the stated amount for purchasing water from outside was disbelieved on the ground that the documents were manufactured. On these findings, the suit was dismissed.

4. The plaintiff applied to the Full Bench of Small Causes Court under Section 38 of the Presidency Small Cause Courts Act. The Full Bench held that the plaintiffs case was that the defendant had lowered the level of his tap below the tap in the plaintiff's portion of the premises. For this reason, no water came out of the plaintiff's tap. It was a case of stoppage of water supply and not a case of low pressure supply. It was held that the plaintiff had proved this part of his case. The defendant did not even cross examine him on this point. It was hence clear that the defendant's action in lowering his own tap was the cause of stoppage of supply of water to the plaintiff. On the question of amount paid by the plaintiff for purchasing water from outside the Full Bench held that there was no reason to disbelieve the plaintiffs statement on the point which was supported by the documents. Ultimately, the Full Bench came to the finding that the findings of the learned Judge were against the weight of evidence. The order of the trial Judge was set aside and the suit was decreed. Aggrieved the defendant has come to this Court in revision.

5. Learned counsel for the defendant-applicant submitted that the Full Bench had no jurisdiction to interfere with the findings of fact of the trial Judge. Under Section 38 of the Presidency Small Cause Courts Act, the Court could act as a revisional Court and not as an appellate Court.

6. The question of construction of Section 38 came up before this Court in Dilip Kumar Roy v. Sanatan Tewari, (1980) 1 Cal LJ 9. In that case, Hon. Ganendra Narayan Roy, J. held:

'(5) It appears that there is nothing in the Act itself regarding the formation of the Full Bench to dispose of the matters under Section 38. The only provision in the Act about formation of a Bench with more Judges than one is found in Sections 11 and 69 of the Presidency Small Cause Courts Act. The Act also does not declare that the Full Bench is to accept and dispose of the appeals from original trials. But the Act provides for the consideration of a judgment of the Small Causes Court by the Full Bench with a power to order new trial or alter, set aside, or reverse the decree or order. The aforesaid power obviously indicates the power of the superior Court and therefore, the Full Bench or Full Court by necessary implication exercises a power of a superior Court with a power to set aside and/or reverse the order of the trial Judge. There are conflicting decisions of different High Courts as to the scope of the power to be exercised under Section 38 by a Full Bench and in the decision of this Court referred to herein before P. B. Mukherje, J. (as His Lordship then was) indicated that the power exercised under Section 38 is not strictly appellate powers and it is also not circumscribed by the very limited power to be exercised in the revisional jurisdiction as in the case under Section 115 of the Code of Civil Procedure. It however appears from the various decisions made by different High Courts including this Court that under Section 38 a new trial may be granted on any of the following grounds : --

(1) Improper admission or rejection of evidence

(2) Mistake or misapprehension of fact or law on the part of the Judge.

(3) Improper allowing or refusing an amendment.

(4) Judgment is manifestly against the weight of evidence.

(5) Discovery of material evidence not allowed after evidence of the parties is over but before judgment.

(6) Material irregularity, error or defect in the proceedings affecting the issues.

(7) Want of jurisdiction or wrongly exercising jurisdiction.

(8) Want of fair and proper trial.

(9) Decree or order is contrary to specified law or usage having the force of law.

(10) Trial Court did not apply its mind to the points for determination of issues in the suit.

(11) Substantial error in procedure resulting in grave injustice.

(12) Principles of natural justice and equity were not followed. '

7. It appears that one of the grounds on which the Full Bench can interfere by ordering a new trial or Setting aside the decree is that the finding is manifestly against the weight of evidence. That was the ground upon which the Full Bench interfered in the present case. I have carefully gone through the judgment of the Courts below. I am satisfied that the Full Bench was justified in taking the view that the Small Causes Court Judge's findings were manifestly against the weight of evidence.

8. The revision has no substance. The Rule is discharged, no order as to costs.


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