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D.N. Ghose and Brothers Vs. Popat NaraIn Brothers - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.990
AppellantD.N. Ghose and Brothers
RespondentPopat NaraIn Brothers
Cases ReferredWallis v. Sayers
Excerpt:
reference - damages, assessment of--practice. - .....again to repeat the protest, and i do this in the language of the court of appeal in england, when lord justice bowen expressed his desire to protest against the melancholy spectacle which the case before him presented. he said, he 'sometimes feared that profane persons might not be entirely wrong in complaining that the courts of justice had, at least, some of the attributes of the circumlocution office. his lordship had never said anything disrespectful of the chancery division, but it was a melancholy spectacle to see a common law cause which might have been heard in one day transformed and inflated into a chancery suit which had lasted heaven knew how long and was going to last heaven knew how much longer, it must not be taken as a thing in which their lordships were to acquiesce.....
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal which arises out of a suit between a vendor and a purchaser of coal and one which should have been disposed of at the trial both on the question of liability and on the question of damages. However, a reference was directed.

2. More than once this Bench has protested against a reference being directed in cases of this nature. I wish again to repeat the protest, and I do this in the language of the Court of Appeal in England, when Lord Justice Bowen expressed his desire to protest against the melancholy spectacle which the case before him presented. He said, he 'sometimes feared that profane persons might not be entirely wrong in complaining that the Courts of justice had, at least, some of the attributes of the Circumlocution Office. His Lordship had never said anything disrespectful of the Chancery Division, but it was a melancholy spectacle to see a common law cause which might have been heard in one day transformed and inflated into a Chancery suit which had lasted Heaven knew how long and was going to last Heaven knew how much longer, it must not be taken as a thing in which their Lordships were to acquiesce that in every case in the Chancery Division the Court ought to direct an inquiry as to damages instead of assessing the damages itself. Cases ought only to be referred to other persons to assess the damages where the inquiry involved questions of detail which it would be wasting the time of the Court to investigate.' The opinion so Expressed by Lord Justice Bowen was shared by Lord Justice Cotton and Lord Justice Fry, the latter of whom said that 'he had more than once expressed his fears lest the practice of directing inquiries should lead to two trials when one was sufficient. Sending an action to a Referee might be necessary in some cases, but as a general rule his Lordship objected to the splitting up of the trial into two inquiries--first, as to the right, and, sea wily, as to the amount of damages. This case might have been entirely disposed of by the Judge': Wallis v. Sayers (1890) 6 T.L.R. 356. We share the opinion to which expression is given in Wallis v. Sayers (1890) 6 T.L.R. 356, and the case amply illustrates the undesirability of a needless reference. I have described the nature of the suit. It was commenced a long time back; there was a decree establishing the right in 1913, and we are now in 1915 dealing with an appeal on exceptions to the Referee's report as to the quantum of damages. I trust that cases of this kind will not be referred to the Referee. It is not merely that this is an error of procedure, but where the question is one between a seller and a purchaser and the point in dispute may be readiness and willingness to sell, it is obviously of prime importance to know how the market has gone with reference to the contract price. In this case the matter went before the Referee. It did not take a very direct course, and I am not clear that the real points were properly appreciated, but the result has been that the plaintiff has failed to prove the amount of damages in respect of this particular coal, Lodna rubble, unless he can rely on an allegation in the defendant's statement of facts. But that allegation was made provisionally. The plaintiff never insisted upon it before the Referee as being a correct statement of the market rate and it is obvious from the course which the case took before the Referee that both parties gave the go-by to that statement and endeavoured to establish by evidence before him what the market rate was. The plaintiff has failed to prove that the market rate exceeded Rs. 1-12. Therefore, I think, Mr. Justice Chitty ought not to have interfered with the conclusion of the Referee.

3. This appeal is allowed, and the order of Mr. Justice Chitty is set aside with costs of this appeal and the exceptions Mr. Justice Chitty.

Woodroffe, J.

4. I agree.


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