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Girija Nandan Vs. Balaram Chatterjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberReference No. 4 of 1951
Judge
Reported inAIR1952Cal671,56CWN299
ActsPresidency Small Cause Courts Act, 1882 - Sections 38 and 69; ; Code of Civil Procedure (CPC) , 1908 - Sections 2, 2(9) and 8 - Order 45, Rule 3
AppellantGirija Nandan
RespondentBalaram Chatterjee
Appellant AdvocateGirija Prosanna Sanyal and ; Ramaprosanna Bagchi, Advs.
Respondent AdvocateManindra Nath Ghose and ; Manohar Saha, Advs.
Excerpt:
- .....with; costs on full pleader's fee rs. 35/-. certified.''it is signed by mr. s. c. biswas, the trial judge.3. the defendant thereupon made an application under section 38 of the presidency small cause courts act for a new trial. this matter carne up for hearing before the chief judge mr. ganguly and the trial judge mr. biswas. at the. hearing of this application for a new trial, the two learned judges differed on the question to which i have already referred, and in consequence, this reference under section 69 of the presidency small cause courts act has been made to this court for its opinion. the order of reference sets out the facts of the case and states the point on which the reference is made. it also states the two conflicting views on the point in dispute, and then concludes.....
Judgment:

Das, J.

1. This is a Reference made by two learned Judges of the Presidency Court of Small Causes, Calcutta, for our opinion on the point

'whether in a contested suit a Small Cause Court Judge is bound to write any judgment.'

2. The Reference arose under the following circumstances. The plaintiff instituted a suit for recovery of a sum of Rs. 600/- from the defendant on account of his salary for the month of September, 1949, the fixed salary being Rs. 600/- per month. The defendant filed a Written Statement disputing this claim. The suit became a contested one. In the course of this suit, on the 9th of March 1950, the hearing of the suit was adjourned to the 16th. of May 1950. On the latter date by consent of parties, the suit was adjourned to 18th July, 1950. On the 18th July, 1950, the suit was decreed. The order of the Court bearing date 18th July 1950, runs as follows:

'Parties' lawyers present as before. Plaintiff Girija Nandan Bhattacharjee examined and cross-examined. Defendant's prayer for time for production of witnesses is rejected. No steps taken. Suit is decreed on contest with; costs on full pleader's fee Rs. 35/-. Certified.''

It is signed by Mr. S. C. Biswas, the trial Judge.

3. The defendant thereupon made an application under Section 38 of the Presidency Small Cause Courts Act for a new trial. This matter carne up for hearing before the Chief Judge Mr. Ganguly and the trial Judge Mr. Biswas. At the. hearing of this application for a new trial, the two learned Judges differed on the question to which I have already referred, and in consequence, this Reference under Section 69 of the Presidency Small Cause Courts Act has been made to this Court for its opinion. The order of Reference sets out the facts of the case and states the point on which the Reference is made. It also states the two conflicting views on the point in dispute, and then concludes by saying that in the opinion of the Chief Judge the trial Judge should write out a judgment. It also states the opinion of Mr. Biswas, the trial Judge, that no such judgment need be written. The order of Reference is signed by the Chief Judge Mr. Ganguly and by the trial Judge Mr. Biswas.

4. Before I deal with the question on which the opinion of this Court has been sought it is necessary to set out three preliminary objections which have been raised by Mr. Sanyal, the learned Advocate appearing for the plaintiff. The first preliminary objection is to the effect that the order of the trial Judge contains a statement of the reasons for the decision of the trial Judge. I have already quoted the order of the trial Judge decreeing the suit. It merely states that a witness on behalf of the plaintiff was examined and cross-examined and that an application for adjournment made by the defendant was rejected and that, thereafter no steps were taken by the defendant. It then says, 'Suit decreed'. No reasons are given for the decision that the suit was decreed with costs. The portion of the order which precedes this decision of the trial Judge merely refers to what happened at the stage of the trial of the suit. A perusal of the order in question does not give us any idea of the grounds on which the trial Judge decided to decree the plaintiff's suit. It cannot, therefore, be said that the decision of the trial judge states any reasons for the conclusion reached by him. In fact, at the time of the hearing of the application for a new trial, the trial Judge who formed a member of the Bench did not think that any .reasons for his conclusion' were contained in his order. On the other hand, his view was that he was not required' by law to state the reasons for his decision; The first preliminary objection taken by Mr. Sanyal must be overruled.

5. In the second place, Mr. Sanyal contended that the Reference to this Court under Section 69 of the Presidency Small Cause Courts Act was incompetent. Reference was made to the decision in the case of 'M. L. CHAKRABARTY v. OLOF BORIN', 27 Cal W N 883. It is contended on the strength of a passage occurring at page 888 that the Reference is incompetent as it does not set out the reasons of the trial Judge Mr. Biswas for his opinion. The order of Reference is signed by both the learned Judges. It must, therefore, be taken that the order of Reference sets out the views of the two learned Judges. The order of Reference states the facts of this case. It then recites the divergence of opinion in this Court on the question referred to. It then gives the opinion of the Chief Judge and of the trial Judge. It is fairly clear that the Chief Judge was inclined to the view taken by Chakravartti J. in the unreported decision in 'Civil Rev. No. 1243 of 1948' and that Mr. Biswas was inclined to the view taken by Sen J. in the unreported decision in 'Civil Rev. No. 1303 of 1948' and again in the case of 'ATUL KRISHNA v. GONESH CHANDRA', 52 Cal W N 379. Even conceding that the observations of Mookerjee J in the case of 'M L. CHAKRAVARTI v. OLOF BORIN', 27 Cal W N 883 at p. 888 lay down the correct legal position, there is sufficient compliance, in the facts of the present case, with the view expressed in that judgment. The second objection raised by Mr. Sanyal must therefore be overruled.

6. Mr. Sanyal has also contended that the application for a new trial was incompetent because the suit could not be regarded as a contested one in view of the fact that the defendant on his application for time, being rejected, did not take any further steps. In my opinion, this preliminary objection cannot be taken before this Court. The powers of this Court in hearing a Reference under Section 69 of the Presidency Small Cause Courts Act are regulated inter alia by the provisions of Order XLVI, Rule 3 of the Civil P. C. On the hearing of such a Reference, this Court is required to pronounce its opinion on the point which has been referred to this Court. This may include no doubt the competence of the Reference made to this Court but, in my opinion it cannot be said that the competence of the application for a new trial can be canvassed at the hearing of the Reference in this Court. That is a matter 'which should have been raised before the learned Judges who heard the application for a new trial. This contention of Mr. Sanyal must therefore be overruled.

7. As the point was argued before us, -we may express no opinion on the question as to whether the application for a new trial was competent or not. The trial Judge, it may however be pointed out, purported to pass a decree on contest with full pleader's fees. It appears from the order of the learned trial Judge that the defendant cross-examined the plaintiff's witnesses and it is only when his prayer for time to examine witnesses was rejected that he did not take any steps. Moreover, before the learned Judge who heard the application for a new trial, no such objection was taken and the hearing proceeded on the footing that the application for a new trial was a competent one. In my opinion, it is too late for the plaintiff now to raise this objection.

8. I shall now deal with the question which has been referred to us for our opinion. It appears that the referring Judges proceeded to deal with the question on the basis of the rules which were in force prior to 3rd January 1949. Under the old rules framed under Section 8, Civil P. C. Clause 9 of Section 2, Civil P. C. which defines the word 'judgment' was not extended to suits and proceedings under the Presidency Small Cause Courts Act. Under those rules, there was room for argument as to whether it was necessary for the Presidency Small Cause Court Judge to give reasons for the conclusion reached by the Judge. Before the promulgation of the new rules on January 3, 1949 there was as already pointed out, a difference of opinion in this Court 'between Sen J. and Chakravartti J. But the cases before those learned Judges related to orders made by the Presidency Small Cause Court Judge before the new rules came into force. The question now falls to be determined under the new rules framed by this Court and promulgated in January, 1949 and has to be determined on the basis of the new rules. The cases referred to by the referring Judges have therefore no application to the facts of the present case. By virtue of the powers contained in Section 8, Civil P. C, this Court framed certain rules on the 3rd of January 1949, and these rules were published in the Calcutta Gazette on the 6th of January, 1949 and were in force when the trial Judge decreed the present suit on 18th July, 1950. The rules framed by this Court extend Section 2, Civil P. C. with certain modifications to proceedings and suits under the Presidency Small Cause Courts Act. Sec. 2, Clause 9 is not covered by the modifications set out in the new rules as such, the clause applies to suits and proceedings which have been decided after the new rules came into force. Sec. 2, Clause 9, defines the word 'judgment' as 'the statement given by the Judge of the grounds of a decree or order.' A Small Cause Court Judge is required by rule 1, Ch. XX of the Rules framed by this Court to pronounce a judgment, that is to say, he has to state the grounds on which he bases his decision, as required by Section 2 Clause (9) of the Code of Civil Procedure. The Question, which has been referred to us, should therefore be answered in the affirmative. Our opinion, therefore, is that in the present case the trial1 Judge was required to give a statement of the reasons on which his decision is based.

Das Gupta, J.

9. I agree.


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