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Sham Chand Giree Vs. Madhub Chunder Giree - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal244
AppellantSham Chand Giree
RespondentMadhub Chunder Giree
Cases ReferredGirdhari Singh v. Hurdeo Narain Singh
Excerpt:
superintendence of high court - 24 and 25 vict., c. 104, section 15--act xxiii of 1861, sections 26 and 35. - .....possession of certain property under section 15, act xiv of 1859 q.v. supra cal. p. 245. the district judge gave the plaintiff a decree. the defendant then applied to this court to set aside that decree under the powers of general superintendence conferred upon it by section 15 of 24 and 25 vict., c. 104. upon that application a rule was issued, calling upon the plaintiff to show cause why the decision of the district judge should not be set aside, upon the ground that the defendant was entitled to have a decision upon the question whether or no possession of the plaintiff was in law the possession of the defendant, and whether that being so, the plaintiff was estopped from setting up an adverse title.2. i am certainly not prepared to say that i agree altogether with the view of.....
Judgment:

Markby, J.

1. In this case the plaintiff sued to recover possession of certain property under Section 15, Act XIV of 1859 q.v. supra Cal. p. 245. The District Judge gave the plaintiff a decree. The defendant then applied to this Court to set aside that decree under the powers of general superintendence conferred upon it by Section 15 of 24 and 25 Vict., c. 104. Upon that application a rule was issued, calling upon the plaintiff to show cause why the decision of the District Judge should not be set aside, upon the ground that the defendant was entitled to have a decision upon the question whether or no possession of the plaintiff was in law the possession of the defendant, and whether that being so, the plaintiff was estopped from setting up an adverse title.

2. I am certainly not prepared to say that I agree altogether with the view of the law taken by the District Judge. It would seem to go to the length of laying down that a mere agent, who was put into possession of property by his employer upon his employer's behalf, might, if he chose to deny his employer's right to possession, not only hold the property against his employer, but turn his employer out, even although his employer had committed no breach of the peace or committed any act of which the agent could complain other than that of returning upon his own property. I do not say, that is what has actually occurred in this case; but the refusal of the District Judge to consider the terms under which the plaintiff obtained and held possession seems to be based upon considerations which go to that length.

3. But I do not think it follows, because I do not agree with the view of the law taken by the Court below, that we ought, in such a case as this, to interfere under the special powers of superintendence conferred upon us by Section 15 of 24 and 25 Vict., c. 104. Whatever difficulties there may be in the construction of this section, I think it is quite clear that every erroneous decision is not to be set right under the powers conferred by it. For if every erroneous decision can be set right under it, then every decision may be questioned under it upon grounds both of fact and law. The result would be that no Court subordinate to the High Court would be capable of giving an unappealable decision upon any question whats over. No one could seriously maintain such a proposition as that; and it is, therefore, necessary to consider further, whether, admitting the decision of the Court below to be questionable, this Court ought to interfere in order to nullify that decision.

4. There being no limitation expressed in the language of the section itself which confers these extraordinary powers, the only limitation upon the exercise of these powers is the discretion of the Court to which the application is made, and such principles as the Judges have themselves laid down for their own guidance in the exercise of that discretion.

5. There is some difficulty in extracting any very clear rules from the decisions, and it is not surprising that the decisions upon such a subject are not wholly uniform. There would always naturally be a strong inclination to interfere where an erroneous decision has been brought to the notice of the Court, and the choice lies between two evils--between leaving an erroneous decision to have its effects, and between weakening to an extent which would be most injurious to the powers of the subordinate Courts. One consideration, however, has always, as a matter of course it ought, weighed strongly with this Court,--namely whether the party aggrieved will be remediless if the superintending Court refuses to interfere. If he has another remedy provided him by the law, his claim to the extraordinary interference of the Court is much weakened, even though the remedy may not be quite complete. I am not prepared to say that in this case the remedy which the defendant has, by way of regular suit, is complete, but he can bring such a suit, and, if successful, it will go a long way towards preventing any wrong which may have (been, sic) done him by the decision of the District Judge.

6. Another matter which this Court will always consider is any charge of judicial misconduct in the Court below; and by this I do not mean misconduct of a moral kind only, but an entire misconception by. the Court below of the duty which it had to perform. I consider this to be the ground upon which this Court interfered in the case of Girdhari Singh v. Hurdeo Narain Singh 3 L.R.I.A. 230. The Subordinate Judge in that case had revoked a previous order made by himself upon grounds which he had himself previously overruled, and without any notice to once of the parties interested. But this is a very different case. There was no misconduct here. The District Judge did, no doubt, refuse in this case to consider a question which he was asked to consider, and I think he was wrong in doing so. But he did so upon a careful and deliberate examination of what, according to his view, was his duty in this respect, and after the parties had been fully and patiently heard. There is nothing in this which can be called judicial misconduct in any sense whatever.

7. On the other hand, it is admitted that the District Judge neither exceeded his jurisdiction, nor declined jurisdiction in this case, unless his refusal to consider the question of how the plaintiff came into possession can be so called. But, in my opinion, no determination of the Judge as to the materials upon which he thinks he ought to base his judgment can be called a question of jurisdiction. To refuse to look at a document or to consider an issue tendered arbitrarily, and without assigning any reason, might, under some circumstances, be misconduct, but could not be a refusal of jurisdiction.

8. Under these circumstances, I think that a case has not been made out for the exercise of the extraordinary powers of the Court, and that the rule ought to be discharged with costs.

Mitter, J.

9. I am also of the opinion that this rule ought to be discharged with costs. I also concur with my learned colleague that the District Judge is in error in refusing to consider the effect of the alleged urponnamah, on the ground that it is not relevant in this enquiry. This document, if established as genuine, might show that the possession of the plaintiff was the possession of a servant on behalf of his master, viz., the defendant. The District Judge is, therefore, wrong in excluding this document wholly from his consideration. The question, therefore, that we have to determine in this rule is, whether, for this error of law, this Court under the provisions of Section 15 of 24 and 25 Vict., c. 104, ought to interfere with the decision of the District Judge.

10. It is not disputed that, by Section 26 of Act XXIII of 1861 q.v. supra, I.L.R. 3 Cal. p. 244, the decision of the District Judge in this case is final, and cannot be interfered with by way of appeal; and I think it has been now settled by a uniform current of decisions in this Court, that, under Section 15 of 24 and 25 Viet., c. 104, it will not interfere with the judgments, decrees, or orders of the lower Court on the bare ground that they are erroneous in law, or are based upon a wrong conclusion of facts. These cases are all collected in a foot-note in page 104 of Volume 1 of the Indian Law Reports (Allahabad Series). An applicant moving the Court to interfere under the extraordinary powers given by this section must establish something more than a mere error of law, or a wrong conclusion on evidence.

11. In this case, I do not think that the petitioner has succeeded in establishing any special ground upon which this Court would be justified in interfering with the judgment of the lower Court, which is admittedly final by the provisions of the Indian Legislature. He has a remedy by a regular suit; and he will have an ample opportunity in that regular suit of establishing the particular fact which the lower Court, in this proceeding he complains, has erroneously declined to enter into. It has been said that if the decision of the lower Court in this case be allowed to stand, he would be compelled to occupy the disadvantageous position of a plaintiff. But it seems to me that, in the investigation of the particular question which he asks the Court to investigate, it makes no difference to him whether he occupies the position of a plaintiff or defendant. The apparent previous possession of the plaintiff being admitted, the applicant must, whether in this proceeding or in a regular suit, show that it was really possession on his behalf.

12. I think, therefore, that, beyond establishing a bare error of law in the decision of the lower Court, t he petitioner in this case has failed to make out any special ground upon which this Court would be inclined to interfere under the provisions of Section 15 of 24 and 25 Vict., c. 104.


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