Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of Greaves. J., whereby he set aside a decree made in the suit in favour of the plaintiff by the Calcutta Court of Small Causes and directed a retrial.
2. The order was made in pursuance of Section 115 of the Civil Procedure Code and on appeal it was argued that the Court of Small Causes had jurisdiction to try the case, that it did exercise such jurisdiction and that it had not acted in the exercise of its jurisdiction illegally or with material irregularity. The suit was upon a policy of insurance issued by the defendants in favour Messrs. Gangjee Nangsee & Co., Rangoon in respect of rice consigned by them to the plaintiff and shipped upon the SS respect of 483 bags of rice alleged to have been damaged by water.
3. The defendant Corporation admitted that 483 bags were damaged, but denied that the damage was caused by any of the adventures or perils insured against under the said policy.
4. The judgment of the Small Cause Court Judge, who tried the case, is as follows:
I don't think the defendant Company has discharged their onus of showing that the damage was from causes other than those included in policy. The evidence of the Surveyor does not appear satisfactory. He does not say that under no circumstances could the damage have been caused by the sea: percolation might have taken place removing traces of salt. He was the person best able to know whether the Company was liable or not. His first report would go to show that he thought the Company was liable.
5. There was an application for a new trial and the judgment is as follows:
I do not think the onus was misplaced on the defendants. They have failed to discharge the onus by proving that the goods were damaged by anything other than the perils of sea. So the application for new trial is dismissed.
6. The grounds upon which the application under Section 115 was supported, were:
1. That the wrong issue was tried.
2. That the Small Cause Court was wrong in holding that the onus was upon the defendants to show that the damage was from causes other than those included in the policy.
3. That there was no evidence to support the Small Cause Court's judgment.
7. The learned Judge, Greaves, J., held that the mere fact that the onus was wrongly laid, would not justify the Court in interfering under Section 115 of the Civil 'Procedure Code, but he came to the conclusion that there was no evidence before the Court which would support the decree, nor any finding upon the construction of the policy which would support it, and on that ground he set aside the decree and directed a re trial.
8. The question is not whether this Court would have come to the same conclusion as the Small Cause Court, for a mistake in law is not in itself a ground for interfering tinder Section 115, Civil Procedure Code. In this case, in my judgment, there is no ground for interference under Clauses (a) and (6) of the section, and if interference by this Court can be justified, it must be under Clause (c), i. e, it must be shown that that Court acted in the exercise of its jurisdiction illegally or with material irregularity. In the case of Shew Prosad Bungshidhur v. Ram Chunder Hatibux 23 Ind. Cas. 977 : 41 C. 323 at p. 338 Jenkins, C.J., said: it appears to me that Section 115 can only be called in aid when the failure of justice (if any) has been due to one or other of the faults of procedure indicated in that section,' and Woodroffe, J., in the same case at page 339 Page of 41 C,--Ed said 'then as regards the alleged irregularity, this according to the general trend of the oases applies to the commission of an error of procedure. '
9. As regards the first ground, it was urged that the real issue was whether the goods were damaged by a period insured against, but that the Small Cause Court had framed the issue in a wrong form, tie., was the damage due to causes other than those included in the policy. This seems to me to be an error in law and does not amount to an illegality or material irregularity in the procedure.
10. As regards the second ground, viz., that the onus was put upon the defendants to shew that the damage was from causes other than those included in the policy.
11. This really amounts to a contention that the Court placed a wrong construction upon the policy and made an error in law in holding that the onus was on the defendants. The case was fully heard, no evidence was excluded, and as a matter of fact the plaintiff did in the first instance give some evidence, viz., on the 4th March, and on the further hearing the Solicitor for the defendants said he had no evidence beyond the document's and the commission, and in my judgment the mere fact that the Small Cause Court wrongly placed the onus on the defendants under the circumstances of this case is not sufficient to entitle this Court to interfere under Section 115.
12. As regards the third ground that there was no evidence to support the judgment. It is not necessary to express any opinion as to whether it would be a sufficient ground to interfere under Section 115, if I were to come to the conclusion in this case that there was no evidence to support the decision of the Small Cause Court, for in this case, in my judgment, there was some evidence. We have not to decide whether we should have come to the same conclusion upon such evidence as the Small Cause Court: it is sufficient to say that there was some evidence which had to be considered by the Small Cause Court. As for instance there was the report of the Surveyor that the bags were damaged by water: that the Surveyor assessed the damage as stated in his report, and that the consignee had agreed to take over the bags at the allowances therein referred to.
13. There was the Surveyor's evidence that a Surveyor cannot grant any allowance in such oases unless specially asked for, which, it was argued, meant asked for by the Insurance Company.
14. This, it was argued, amounted to an arrangement by the Surveyor on behalf of the Company with the consignee as to the amount payable by the defendants. The Court may have arrived at the conclusion that this was evidence of the liability of the defendants.
15. There was further evidence given on behalf of the plaintiffs by the gomashta that the Company never received damaged goods, and it was, therefore, argued that the goods must have been in good order and condition when loaded on board the ship; there was evidence that the rice was not new crop, and consequently 'sweating' was not to be expected; further that only portions of the bags wore damaged.
16. The question is not whether this Court would have been satisfied with this evidence; the question is, whether it can truly be said that there was no evidence, and I am unable to say that there was no evidence upon which the Small Cause Court could come to the conclusion at which it arrived.
17. It may be that if the matter had been open to us, we should have come to a different conclusion on the construction of the policy, and as to the law and we might not have been satisfied with the evidence, but that is not the question. The question is, whether the Small Cause Court anted in the exercise of its jurisdiction illegally or with material irregularity, and in my judgment this has not been made out,
18. Consequently the appeal must be allowed and the decision of the learned Judge set aside. The appellants are entitled to their costs of the appeal and of the proceedings before Greaves, J.
19. The question on this appeal is whether Greaves, J., did right in interfering with a decision of the Small Cause Court under Section 115 of the Code. We are not concerned here with the merits of the case, whether in law or fact. The Judges of the Small Cause Court may have passed an erroneous decision, but the law does not allow us to interfere with their judgments on this ground. This is not an appeal. It must be shown either (a) that there is a question of jurisdiction, a term the meaning of which I have explained in my judgment in Shew Prosad v. Ram Chunder 23 Ind. Cas. 977 : 41 C. 323 at p. 338, or (6) that there has been an illegality or irregularity affecting the merits. These two words refer to matters of procedure. This must be so, for jurisdiction is dealt with under Clauses (a) and (b) of Section 115 and mere error in decision on matters of law and fact are not within the scope of the section. We are left then with acts, that is, illegal or irregular processual acts. Has there been such an illegality or irregularity here? it is to be noted that there was the ordinary trial, that evidence was given by the plaintiff in the first instance, that this evidence was all that the parties wished to give and the decree (whether it be right or wrong) was based thereon. The illegality and irregularity alleged is (a) that the wrong issue was tried, (b) that the onus was misplaced, (c) that there was absolutely no evidence to support the decision.
20. The issue tried between the parties raised the question of the liability of the defendants on the policy. But though the substantial question of liability on the policy was tried, it is said to have been tried in a wrong form, namely, were the goods damaged by a peril other than that insured against instead of, were the goods damaged by one of the perils insured against. Whether the one issue or the other was right, the matter is not in this case shown to be other than a question of law, seeing that if there was error, there was no irregularity or illegality other than that (if in particular oases there may be any which I need not decide) involved in the mere settlement of the form of the issue. There was in this case no evidence shut out nor call to start the evidence nor were the defendants prevented in any other respect from doing what they wished to do. The objection really is that the Court took a wrong view of the general law and put a wrong construction on the policy. Similar remarks apply to the argument as to the alleged misplacing of the onus. As a matter of fact the plaintiffs first gave evidence as if the onus were on them, and both parties gave all the evidence that they wished to give. There may be oases though, it is not necessary to finally decide the matter; where these grounds might be successfully taken, as for instance where a party was wrongly called upon to begin, or where he was not permitted to give, nor had an opportunity of giving, evidence on any particular point. But this is not the case here. It is to be observed that the learned Judge did not decide to grant revision on either of these grounds. On the contrary he has held that the question of onus is not a ground under Section 115. The basis of his judgment is that there was absolutely no evidence, to support the decree. This, however, is not made out. There is some evidence though whether the evidence given made out a case is not a matter which we are here entitled to consider. Before we can interfere it must be shown that there was absolutely no evidence at all. There was evidence of the statements and conduct of the Surveyor. His report Shows that a certain number of bags were damaged by water and that he and the claimants together agreed that certain allowances for damage should be allowed. Mr. Stewart says that the Surveyor cannot grant any allowance in such oases unless specially asked for, that is (as I read it) by the Insurance Company, The plaintiff's case is that the Surveyor fixed a sum as being payable by the defendant Company. The Judges may have thought that this evidence established liability.
21. Again evidence was given that the Shipping Company never received goods in bad order, evidence excluding the possibility of sweating, some evidence as to the weather and that the goads might have been damaged by sea water. All this may be insufficient to establish the conclusion of the Judges, for the Surveyor denies authority to make any admission, and what the Shipping Company do is not evidence against the Insurance Company. Nextly the mere general statement about salt water is met by evidence of the actual teste applied. Had the case been tried by us, it may well be that we would have taken a different view of the construction of the document and the law applicable and that we would have considered the evidence given as insufficient to establish the defendants' liability. Bat as I have said, we cannot go in revision into the question whether the judgment is right or wrong in law. It may be wrong in law, but it must be shown that there was an act of actual illegality or irregularity within the meaning of Section 115, Civil Procedure Code, which entitles us to interfere. This the respondent has, under the circumstances of this case, failed to establish and it has been shown that the grounds on which Greaves, J., interfered cannot be supported in fact. The appeal must, therefore, be allowed, and the decision of the learned Judge set aside. The appellants are entitled to the casts of this appeal and of the proceedings before Greaves, J.