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In Re: Lukhyakant Bose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1876)ILR1Cal180
AppellantIn Re: Lukhyakant Bose
Cases ReferredKarim Sheikh v. Mokhoda Soondery Dassee
Excerpt:
superintendence of high court - 24 & 25 vict., c. 104, section 15--act xxiii of 1861, section 27. - .....of section 27 of act xxiii of 1861, and usurping under this 15th clause of the charter act a right of appeal, which, by that 27th section, is in express terms taken away. this was a case which the munsif's court had clearly a jurisdiction to entertain. the question of the illegality of the contract and the question of limitation were such as the munsif had a right to try and was bound to try at the hearing of the suit; and questions which it was especially his province to decide; such a case, in my opinion, is not one for which clause 15 of the charter act was intended to provide. the object of that section was to enable the high court to control the lower courts or to put them in motion, when, on the one hand, they exceed their jurisdiction, by entertaining suits which they have.....
Judgment:

Richard Garth, C.J.

1. We are of opinion that this rule ought to be discharged, and the appeal against Kemp, J.'s decision allowed. It is one of those cases in which the suit might have been brought in the Small Cause Court, and Section 27 of Act XXIII of 1861 forbids any special appeal to this Court. That being so, the question is, whether the Munsif having entertained the suit and decided it, and the Subordinate Judge having heard it on appeal, we have any right to interfere under Section 15 of the Charter Act, not for the purpose of enquiring whether there was any jurisdiction in the lower Court to entertain the suit (about which there can be no doubt), but for the purpose of rehearing the case upon a point of law, which the Judges in the Courts below had a right and were bound to determine, and which would, if the case had been appealable to this Court, undoubtedly have been a good subject of appeal. This, as the late Chief Justice COUCH very truly observed in Karim Sheikh v. Mokhoda Soondery Dassee 15 B.L.R. 111 would be acting in direct contravention of Section 27 of Act XXIII of 1861, and usurping under this 15th clause of the Charter Act a right of appeal, which, by that 27th section, is in express terms taken away. This was a case which the Munsif's Court had clearly a jurisdiction to entertain. The question of the illegality of the contract and the question of limitation were such as the Munsif had a right to try and was bound to try at the hearing of the suit; and questions which it was especially his province to decide; such a case, in my opinion, is not one for which Clause 15 of the Charter Act was intended to provide. The object of that section was to enable the High Court to control the lower Courts or to put them in motion, when, on the one hand, they exceed their jurisdiction, by entertaining suits which they have no right to entertain, or on the other hand refuse to exercise powers which they are bound by law to exercise. That being our view, and there being already strong authority in these Courts in favour of that view, we have no doubt whatever that this appeal should be allowed, and the rule granted by Kemp, J., discharged with costs.


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