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Manmatha Nath Koer Vs. Mahadeb Ghose - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal727,140Ind.Cas.267
AppellantManmatha Nath Koer
RespondentMahadeb Ghose
Excerpt:
- .....self-government act of 1919 provision was made for the setting up of judicial bodies, called union courts, by the local government at places where union boards are established. section 73 of the act reads as follows:whenever a union board has been established for a union, the local government, may, by notification, appoint any two or more of the members of the board to be a union court during their term of office as members of the board, for the trial, in the whole or any part of the union, of all or any of the classes of civil suits specified in section 74.2. these are : (a) suits for money due on contracts; (b) suits for the recovery of moveable property or the value of such property and (c) suits for compensation for wrongfully taking or injuring movable property, when the value.....
Judgment:

Costello, J.

1. This matter touches upon a question of some interest and importance to the public in the Rural Districts of Bengal. Under the Bengal Village Self-Government Act of 1919 provision was made for the setting up of judicial bodies, called Union Courts, by the Local Government at places where Union Boards are established. Section 73 of the Act reads as follows:

Whenever a Union Board has been established for a union, the Local Government, may, by notification, appoint any two or more of the members of the Board to be a Union Court during their term of office as members of the Board, for the trial, in the whole or any part of the union, of all or any of the classes of civil suits specified in Section 74.

2. These are : (a) suits for money due on contracts; (b) suits for the recovery of moveable property or the value of such property and (c) suits for compensation for wrongfully taking or injuring movable property, when the value of the suit does not exceed two hundred rupees. Then Section 74 also provides that, on the application of any defendant made in accordance with the provisions of Section 81, the Court of Small Causes or Court of the Munsif, within the local limits of whose jurisdiction the Union is situated (i) may withdraw the suit when its value does not exceed Rs. 25, (ii) shall withdraw the suit when its value exceeds Rs. 25, from a Union Court for trial by itself. Section 75 excludes certain classes of cases as not triable by a Union Court. It seems clear from the general provisions with regard to the procedure of these Courts, that the intention of the legislature was to set up in rural areas special tribunals for the expeditious, inexpensive and summary determination of civil disputes involving small amounts. There is, for example, a provision in Section 97 of the Act that the parties to suits triable by a Union Court may appear by an agent but the word 'Agent' is narrowly defined, and in Sub-section 3, Section 97, it is expressly enacted that legal practitioners are not permitted to practice before a Union Court. This provision was no doubt intended to minimise the cost of litigation in these special Courts. Now Section 88 of the Act says:

The decision of a Union Court in every suit shall be final as between the parties to the suit.

3. That provision standing by itself would indicate that the object of the legislature was to provide not only a cheap but a speedy and conclusive method of settling petty civil disputes cognizable by Union Courts. But Section 88 contains a proviso which apparently has 'the effect or is likely to have the effect of nullifying the advantage which would otherwise have accrued to persons litigating in the Union Courts. The proviso reads as follows:

provided that the District Judge may, on the application of any party to the suit made within 30 days of the decree of the Union Court, cancel or modify the order of the Union Court or direct a retrial of the suit by the same or any other Union Court or by any other Court subordinate to him if he is satisfied that there has been failure of justice.

4. The 'order' of the Onion Court referred to in that proviso clearly means the 'written order' mentioned in Section 86 of the Act, which section runs as follows:

When the parties or their agents have been heard and the evidence on both sides considered, the Union Court shall, by written order, pass such decree as may seem just, equitable and according to good conscience, stating in the decree the amounts payable as fees under Section 90, and the amount, if any, paid to witnesses under Section 96, sub Section 3 and the person by whom such amounts are payable.

5. The fact that a Onion Court is directed in that section to pass such a decree as may seem just, equitable and according to good conscience, seems to emphasize the fact that Union Courts were intended to function rather as arbitration tribunals than as Courts in the strict sense of the term. The proviso to Section 88 is likely to destroy or at any rate to derogate from the effect and value of the opening sentence of the section, because it is obvious to anyone who has had experience of litigation in this country that it is inevitable that advantage will be taken of that proviso almost as a matter of course and on every possible occasion by the party who has been unsuccessful before the Union Court. The unsuccessful party will be advised or instigated--I am afraid in practically every case to make an attempt, if only as a forlorn hope, to upset the decision of the Union Court by moving the District Judge under the proviso to Section 88 and thus secure what is in effect an appeal from the decision of the Union Court and then, as in the present instance, if the District Judge thinks fit to exercise the powers conferred upon him by that proviso, and reverse the decision of the trial Court the matter will be carried a step further by the then unsuccessful party making an application to this Court under Section 115, Civil P. C. In this way the whole purpose underlying the establishment of Union Courts will be set at naught. The present proceeding seems to furnish a glaring example of the mischief I have indicated. The application now before me is directed against an order of the District Judge of Hooghly made on 7th December 1931. By that order he set aside the decree of the Union Court at Chanditolla which was made by a written order of the Union Court on 29th March 1931. That decree had been made in a suit brought by the present petitioner Manmatha Nath Koer as plaintiff against the respondent to this application, Mahadeb Ghose, for the recovery of a sum of Rs. 180, being Rs. 150, the principal, and Rs. 30 the interest thereon, alleged to be due on a hatchitta account in the name of the defendant.

6. When the matter came before the Union Court for trial the defendant admitted the loan, but set up the defence that he had already repaid the money which had been lent to him and therefore nothing whatever was due from him to the plaintiff. In support of the defendant's case evidence was given not only by the defendant himself, but also by the mother and brother of the plaintiff'. The Union Court nevertheless accepted the plaintiff's story and gave judgment in his favour on 29th March 1931. Thereupon the defendant moved the District Judge under the terms of the proviso to Section 88 of the Act of 1919. The learned District Judge came to the conclusion upon an examination of the evidence, that the defendant had established the fact that the loan had been repaid by him. He says in his judgment:

It has not been shown that plaintiff's mother and brother are on terms of enmity with him nor has it been shown that defendant had any other debt to the family. In these circumstances the learned Union Court should have accepted the story of payment and dismissed the suit.

7. He adds this paragraph:

I am satisfied that there has been a failure of justice in this case and that interference is called for.

8. The learned District Judge then made the following order:

I allow this application and set aside the decree of the learned Union Court and direct that the plaintiff's suit be dismissed with costs-in both Courts.

9. That is the order against which the present Rule is directed. Mr. Ganguli on behalf of the present applicant, the plaintiff in the suit, has contended before me, that this Court in its turn, ought to review the decision of the learned District Judge and in effect conduct an investigation into the evidence adduced before the- Union Court with a view to ascertaining whether that Court was correct on the facts or whether the District Judge was right in corning to the conclusion, as he apparently did, that there would have been injustice if the defendant had been required to pay to the plaintiff the sum which he was claiming. In other words, I am invited to treat the matter as if it were a second appeal on the facts. In my opinion the contention put forward is utterly unsustainable and this application must fail. Applications of this kind made under Section 115, Civil P. C., must as far as possible be discouraged; otherwise so far from the decision of the Union Court' being final as between the parties to the suit, as contemplated in the substantive provision in Section 88, there will not only be, in every case, a proceeding which is in effect an appeal from the decision of the Union Court to the District Judge, but there will also be an attempt to obtain a further appeal in the guise of an application in revision under Section 115, Civil P. C. Thus the whole scheme for the inexpensive and speedy determination of small disputes under the Bengal Village Self-Government Act, 1919, would be frustrated.

10. It is to be observed that the power conferred on the District Judge, by the legislature, to review the decision of the [Union Court is wholly unfettered and so it would seem that it is always open to the District Judge to set aside an order of the Union Court, provided only he declares that he is satisfied that there has been a failure of justice. The power conferred on the District Judge is not limited to a reconsideration of any point of law or procedure which may have arisen in the Union Court, but such power is wide enough to permit of a reconsideration of the evidence and accordingly, if he thinks the justice of the case so demands, the District Judge can apparently reverse a decision of the Union Court on a pure question of fact. Thus in every case decided by a Union Court the unsuccessful party can take proceedings, very little different in actual practice, from a regular appeal. It appears essential to my mind therefore that this Court should not act in the direction of doing anything which might have the effect of encouraging the party unsuccessful before the District Judge to come to this Court with any application under Section 115, Civil P. C., of a kind which is in substance, though not in form, nothing else than an endeavour to obtain a second appeal in the action. I can see no reason whatever for suggesting that the learned District Judge has, in any wise, exceeded the wide powers conferred upon him under Section 88, and this application in revision is in my opinion wholly unwarranted. This Rule must therefore be discharged with costs two gold mohurs.


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