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Dinesh Chunder Roy Chowdhry and anr., Minor Represented by their Next Friend Durga Kant Roy Chowdhry, Manager Under the Court of Wards Vs. Golam Mostapha and ors., - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal89
AppellantDinesh Chunder Roy Chowdhry and anr., Minor Represented by their Next Friend Durga Kant Roy Chowdhry
RespondentGolam Mostapha and ors., ;fahamidunnessa Begum and ors. and Nishi Kant Gungopadhya and anr.
Cases ReferredMohammad Azmat Mi Khan v. Ladli Begum I.L.R.
Excerpt:
court of wards act (bengal act ix of 1879), section 55 - bengal act iii of 1881, section 7--suit on behalf of ward by manager without sanction of the court of wards--sanction after appeal, effect of. - .....validate the proceedings that had been issued. further, we think that the view expressed by the learned district judge, that the second paragraph of section 55 provides for one case only in which a subsequent sanction is contemplated by the section, is a view entitled to great weight. for these reasons we hold that the learned district judge was right in dismissing the suit; and we dismiss this appeal with costs.judgment in appeal 1519.4. this is also an appeal from a decision of the same district judge, and in this case also the absence of some order by the court of wards was raised in the court of appeal, and the district judge, taking the same view, dismissed the suit. in this case the learned judge had to consider, not merely the effect of the absence of any order authorizing the.....
Judgment:

Pigot and Rampini, JJ.

Judgment in Appeal 1506.

1. This is an appeal from a judgment of the District Judge of Dacca, dismissing a suit instituted by a person appointed as manager under the Court of Wards in respect of certain interests, to which we need not refer, relating to property of which he was appointed manager. The suit was dismissed by the District Judge under Section 55 of the Court of Wards Act (Bengal Act IX of 1879) as modified by Bengal Act III of 1881, which adds three words to the section It is admitted that the suit was filed in the lower Court without the order of the Board of Revenue, or the Court of Wards, or of the Commissioner, and proceeded to judgment in the original Court without any such sanction. The District Judge has held that the terms of Section 55 rendered the suit so coming before him one which he was bound to dismiss; and the appeal is against that decree.

2. We are of opinion that the District Judge was right in dismissing the suit. The terms of the section are: 'No suit shall be brought on behalf of any ward unless the same be authorized by some order of the Court.' The additional words added by Act III of 1881 are immaterial for the purposes of this case. It was suggested in the Court below, and it was argued here, that Section 55 is intended for the guidance of managers and not for the purpose of absolutely binding Courts of law in respect of suits by managers on behalf of wards. We have to gather the intention of an enactment from its terms, and though it is quite possible that the effect of this enactment was not sufficiently considered by its framers, we think the words used are such as to leave no alternative hut the dismissal of the suit brought without some order, to use the words of the section, of the Court of Wards. 'No suit shall be brought' are words as strong as could well be suggested. They are similar to the words used in English Acts which have been so interpreted, as, for instance, in an Act of a different character referred to in the case of Boyce v. Higgins 4 C.B. 1. There the words are: 'No proceedings shall be taken by any person other than the party grieved without the sanction in writing of the Attorney-General;' and these were held to constitute in that case an absolute ground for holding that the suit could not be brought.

3. Then it was suggested that, inasmuch as at the hearing of the appeal by the District Judge an application was filed, accompanied by a letter from the Commissioner of Dacca to the Collector of Mymensingh giving sanction to the institution of the suit, that conferred, as in terms it was intended to confer, upon the Court, by the use of the word retrospective, the power of treating the suit as properly instituted from the beginning. It was contended that that document entitled, and if it entitled, it bound, the Court to entertain the suit. We think not. It would be a strange construction of the section which would give the department which, under the name of the Court of Wards, carries on the suit through its manager the power of rendering valid after decree proceedings which up to that date were invalid, and so empower it, if it pleased, in the interests of those for whom it managed the estate to affirm or to disaffirm a suit, according as it had or had not resulted in success. On that ground alone we think it would be impossible, in the absence of express words, to hold that, when the matter was before the Lower Appellate Court on appeal, a sanction then given should validate the proceedings that had been issued. Further, we think that the view expressed by the learned District Judge, that the second paragraph of Section 55 provides for one case only in which a subsequent sanction is contemplated by the section, is a view entitled to great weight. For these reasons we hold that the learned District Judge was right in dismissing the suit; and we dismiss this appeal with costs.

Judgment in Appeal 1519.

4. This is also an appeal from a decision of the same District Judge, and in this case also the absence of some order by the Court of Wards was raised in the Court of appeal, and the District Judge, taking the same view, dismissed the suit. In this case the learned Judge had to consider, not merely the effect of the absence of any order authorizing the bringing of the suit, but whether or not there was in existence any order authorizing the bringing of such suit; for it is an unfortunate characteristic of this section which is drawn with singular absence of regard to the rights of third parties who may be affected in costs, art any rate, by its provisions, that nothing is said in the Act as to the form or nature of the order which, under the terms of the section, is 'made an essential preliminary to the bringing of the suit. The public, the individuals against whom suits may be brought in contravention of the terms of this section, are not in any manner protected from suits being brought loosely and negligently, and in disregard of the provisions of the section, by the enactment of any procedure, with reference to the making or form of the order, such as ought naturally to have been found in the Act. The District Judge says: 'All the papers in connection herewith that the pleader is able to show me are: (1) a letter from the Commissioner to the Legal Remembrancer, dated the 31st January 1886, a short time before the suit, which was instituted on the 12th January 1885, was decided in the lower Court, recommending, at the instance of the Collector of Dacca, that Rs. 39 be allowed for the remuneration of associate pleaders; (2) the sanction of this payment by the Legal Remembrancer; (3) a report of the Collector of Mymen-singh, dated the 19th March 1886, that he had authorized the filing of an appeal; (4) the Commissioner's memorandum forwarding copy of the above (3) to the Legal Remembrancer for sanction to the filing of the appeal; and (5) the Legal Remembrancer's reply to the effect that 'as appeal has already been filed, it must be continued.' There is nothing in all these of the nature of an order of the Court of Wards, or of an order of any Government official under the Court of Wards, to bring the suit, and I think that this was a fatal objection.' Accordingly, the defendant has, in this case, partly in consequence of the slovenly manner in which the Act was framed, partly in consequence of the manner in which the suit has been instituted, been put to costs and trouble, which probably no order of this Court, even though the suit is dismissed, can recoup him. We agree with the District Judge in the view which he has expressed, and we think he was right in dismissing the suit. The appeal is dismissed with costs.

Judgment in Appeal 1507.

5. This appeal raises a slightly different question. In this case the original Court dismissed the suit on the ground that there was nothing to show that the Board of Revenue, as the Court of Wards, had the authority of the Lieu-tenant-Governor to delegate to the Commissioner the power of ordering a suit to be brought by the manager on behalf of a ward of the Court. There, the learned Judge on appeal holds that the Subordinate Judge was wrong, and we agree with the learned Judge in entertaining that opinion. But while expressing that opinion, the learned Judge considers the question whether in fact there was an order authorizing the institution of the suit, and he says: 'The only document field on behalf of the plaintiff with reference to this is the document marked Exhibit I, which is a letter from the Legal Remembrancer giving his sanction, and there is nothing to show that any one else gave any order on the subject. Now, whatever delegation there may have been to Commissioners, there was none to the Legal Remembrancer, and I am compelled to hold that, for want of evidence of any order of the Court of Wards or the Commissioner, the lower Court was right in dismissing the suit.' In the two cases with which we have just dealt, the proceedings had gone as far as judgment and decree before the question was raised. Here the question was raised before judgment in the original Court, and the suit was dismissed on the ground of the absence of proof of some order. Now, upon that point we referred the learned pleaders to the case of Mohammad Azmat Mi Khan v. Ladli Begum I.L.R. 8 Cal. 434 before their Lordships of the Privy Council under the Pensions Act, in which they held that, where it appeared in a suit which had been entertained under that Act that the certificate required by its provisions had not been issued, and where the Court stayed the proceedings and abstained from giving final judgment, but upon the filing of the certificate proceeded to give final judgment, the Court was entitled to do so. That case, however, depended, as we understand it, upon the special terms of that Act, Section 6 of which enacts that a Court, on receiving such a certificate, is bound to take cognizance of the claim; and their Lordships held that, upon the certificate being filed, the Court finding a pending suit, although irregularly instituted, was bound to take cognizance of the claim in that suit. It is to be observed that Section 4 of that Act, prohibiting a Court from taking cognizance of a suit without a certificate, commences with the words 'save as hereinafter provided,' which must be taken of course to refer to Section 6 as well as to the other portions of that division of the Act to which it applies. In the present case, too, it does not appear that any application was made to the second Subordinate Judge to stay proceedings pending the obtaining of a sanction. We think that in this case also the decision of the District Judge was right, and we have only to add that this case again arises in part from the absence from the Act of any attempt at laying down a procedure to be followed with respect to the issue of the order which the Act requires as a preliminary condition to the institution of a suit. We shall bring these cases to the notice of our colleagues in the hope that perhaps some rule may possibly be framed to remedy the consequences, in some measure at least, of the unfortunate drafting of this enactment. We dismiss the appeal with costs.


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