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Kunja Lal Banerji Vs. Dinbandhu Jha - Court Judgment

LegalCrystal Citation
Decided On
Reported in14Ind.Cas.458
AppellantKunja Lal Banerji
RespondentDinbandhu Jha
Cases ReferredHarendra v. Hara Sundari This
judge - jurisdiction--personal bias--perversion of facts--rule--costs of special amount. - .....were two grounds on which the application for a rule was made, two main grounds; one was that the district judge in his capacity as a member of the board of trustees of the berhampore college was sufficiently interested in the matters arising in the appeal to mike it unsuitable, according to the established judicial etiquette and propriety, that he should dispose of the appeal. in the 14th paragraph of the petition there were set out grounds of that nature which, it was urged, rendered it not suitable for mr. anderson, the district judge, to try the case. now, the connection between mr. anderson's acts as member of the board and this case is this: that there was a meeting of the board of trustees on november 6th, 1889, at which an opinion of the legal remembrancer was read advising the.....

1. We do not propose to go into this case at any length, and we think it is one which we ought to dispose of at once, nor shall we dwell u pan the details which have been referred to as to the merits or demerits of the suit which is under appeal. There were two grounds on which the application for a Rule was made, two main grounds; one was that the District Judge in his capacity as a member of the Board of Trustees of the Berhampore College was sufficiently interested in the matters arising in the appeal to mike it unsuitable, according to the established judicial etiquette and propriety, that he should dispose of the appeal. In the 14th paragraph of the petition there were set out grounds of that nature which, it was urged, rendered it not suitable for Mr. Anderson, the District Judge, to try the case. Now, the connection between Mr. Anderson's acts as member of the Board and this case is this: that there was a meeting of the Board of Trustees on November 6th, 1889, at which an opinion of the Legal Remembrancer was read advising the Board of Trustees to apply for Letters of Administration to the estate of Radha Charan Sen, and, no doubt, that advice was given, because the Board of Trustees of that Institution was interested in the estate of Radha Charan Sen, whose surviving executor was then dead, in respect of a share in the little property which is the subject-matter of the suit and that is all. It does not appear that Mr. Anderson took any part whatever after that in the proceedings of the Board. Letters of Administration were applied for on behalf of the Secretary of the Board sometime afterwads, and upon an objection being filed by one Dinabandhu the plaintiff-respondent, who had an interest to the extent of 6 -annas in the property, it was ultimately determined to allow Dinabandhu, to take out Letters of Administration. He paid a certain sum to the Board in their capacity as Trustees of this Charitable Institution and eventually became the purchaser of their interest in this little bit of property held by them under the Will of Radha Charan Sen. Now, this suit being brought against the defendant, the petitioner before us, in respect of, this property by the plaintiff, whose title to the property consisted in part of the 6 annas which he derived by purchase from a donee of it from the executors under the powers given to them in the Will of Radha Oharan Sen, and whose title to the remaining 10-annas is derived from the Board of Trustees of the Berhampore College who assigned to him their interest in it under the Will, this Rule is applied for upon the suggestion that the District Judge ought not to hear the case by reason of his connection with the matter in suit. There is, indeed, another ground stated in the petition upon which this Rule was granted and that ground is stated with a singular want of candour to say the least. The 14th paragraph says: 'That at the time when the Board of Trustees resolved to apply for Letters of Administration to the estate of Radha Charan Sen, Mr. R.H. Anderson, the present Officiating District Judge, in his capacity as a member of the Board of Trustees, took an active part.' That is a dishonest statement. We have mentioned all he did. The paragraph goes on: Mr. Anderson was also the Officiating District Judge at the time when he accepted the proposal of compromise to be made between Babu Srinath Pal, the Secretary and Treasurer of the Board of Trustees, and the nominal objector, Dinobandhu Jha.' That is another dishonest statement. Mr, Anderson as District Judge did not accept the proposal of compromise that was made on the 28th of March. The postponement of the hearing of the objections on that date was made not by Mr. Anderson, who had given over charge before the 28th, but by Mr. Page, his successor. Had Mr. Anderson been then sitting and made the postponement, the description that is given of what was then done would be a signally dishonest one. It is idle to pretend that the petitioner could have supposed that the postponement that took place then amounted to an acceptance of the compromise. The paragraph goes on to say: ' The legality and validity of the application by Babu Srinath Pal as Secretary , to the Board of Trustees for Letters of Administration to the estate of Radha Charan Sen, which he, R. Anderson, Esq., in his capacity as a member of the Board, had directed to be applied for.' That is untrue. At the meeting of the Board at which the advice of the Legal Remembrancer was adopted, no suggestion as to the application by Babu Srinath Pal was made; the resolution was to take the advice of the Government Pleader so that the necessary steps should be taken. It was not until long after that, that Babu Srinath Pal's name was adopted, apparently in pursuance of this gentleman's advice. It further goes on: ' As also the legality and validity of the compromise, the proposal for which had been accepted by Mr. Anderson as Judge.' That is untrue as we have just observed. Then it goes on: ' And the constitution of the Board of Trustees and their series of illegal acts will have to be decided by him in this appeal in his capacity as District Judge; he will thus have, unless the appeal be transferred to some other Court, to sit in judgment upon his own acts and those of his predecessor, Mr. Page, as President of the Board of Trustees.' This statement is made by a person who was himself for several years, as we have been told, a Judge, no doubt in. a subordinate capacity, but still a Judge of the Small Cause-Court of Calcutta, and that statement is made with reference to the proceedings cancerning an application for Letters of Administration. This succession of unhanded and untruthful statements is made for the purpose of obtaining from this Court a Rule for the transfer of this case; they are made with great astuteness and are accompanied by what may be perhaps an accidentally erroneous copy of the order-sheet which represents Mr. Anderson as having sat on the 28th March, when the postponement was made at the time that the compromise was effected. He did not sit then. The mistake in the copy of the order-sheet may be accidental, but it would be perfectly idle to suppose that these statements made in paragraph l4 of the application were made in honest error. English Courts of Justice are always most careful in guarding that very salutary principle that a Judge should not sit in any case in which he can be supposed to have the smallest personal interest or bias; and, probably, not even the petitioner would venture to suggest that a serious personal bias exists in Mr. Anderson's mind, but he suggests that informally, and still, although no one can suppose that to be within the range of possibility, it might be unseemly that the learned Judge should take up a case in which he could possibly have a personal interest or bias; the learned Judge would not do it, no Judge would do it. But in this case when the dates are examined and the order-sheet is corrected and the resolutions of the Board of Trustees are looked into, it is plain that there is not the shred of excuse for the suggestion that there would be a shadow of impropriety in Mr. Anderson hearing the case. The other statements of the petitioner are founded upon the allegation that he can get no Pleader to attend to his case in the District Court. This statement comes weighted with all the discredit that must attach to the petitioner after an examination of the other grounds of the application for this Rule. They are met by an affidavit on the part of the respondent in the appeal who utterly denies that he is so situated towards Maharanee Surnomayee that the fact that a multitude of Pleaders hold retainers for her could create any obstacle to their being employed on behalf of the appellant. There is a plain denial of the suggestions made on the part of the petitioner. Even regarding this controversy, quite apart from the discredit attaching to the petitioner's statements upon the other branch of thecas3 and with reference to what is the obvious, plain and well-known duty of members of the legal profession, all that we can say is that if by reason of any supposed favour by Maharanee Surnomayee towards the respondent in this case there could be any real danger of the Pleaders who have been retained by her neglecting their duty or refusing to appear for the appellant, these gentlemen would show themselves ignorant of professional etiquette and their professional duties, and we cannot for a moment suppose that they will not discharge their duties honourably as their fellows do. On neither ground, therefore, is there any case made out to justify the appellant in insisting or pressing to have this case transferred to this Court. Had an offer to pay all costs in any event made by the petitioner's Pleader been accepted by the other side, it would perhaps have removed one of many strong reasons against making the Rule absolute which is the heavy increase of costs that would necessarily result to the respondent on a transfer of the case. Ample reasons suggest themselves to one's mind why that proposal should not be accepted, and one of them perhaps is that unless a proposal of this nature be put down in black and white, difficulties might occur in enforcing and carrying it out, but we should have been reluctant to make the Rule absolute in any case. A Rule applied for, as this has been, upon an astute and intelligent perversion of facts ought not to be made absolute unless some strong grounds exist for doing so. One strong ground does exist in the desire expressed by the District Judge himself for a transfer of the case, but it is a desire which we feel bound in this case to disregard; he would, as we understand, prefer that the case should be transferred, and the wish is a perfectly natural one, but one which, in the interests of justice, we ought not to accede to in this case. It would be a bad example that a Rule applied for and supported, as this has been, should be successful.

2. We shall not finally dispose of this Rule to-day. We have directed a search to be made for precedents as to costs in Rules improperly obtained, and although we now intimate that we shall discharge the Rule, we defer passing a final order to-day, and the matter will be mentioned again some day next week and a final order will be made.

3. Since giving judgment in this case last Thursday, we have caused inquiry to be made with regard to cases in which costs of a special amount have been ordered by this Court. We said the other day that, if necessary, we should make a precedent in this case, but we perferred to search for and find one. Such a precedent exists in Harendra v. Hara Sundari This was an appeal which the High Court (Mitter and Grant, JJ.) on April 9th, 1886, held, was frivolous and in dismissing it fixed the hearing fee at Rs. 500. The appeal was a Miscellaneous Appeal No. 6 of .1886 from the order of the District Judge of Rajshahi, dated September 16th, 1885, before Justices Mitter and Grant, and there the Court ordered costs such as we are now about to order. It is not necessary for us to state oar reasons further than we have done in our judgment of Thursday last, the shorthand-note of which we have perused this morning and which contains a sufficient statement of our reasons for imposing costs at a rate which shall completely exonerate the successful party. All that we shall do now is to order the petitioner in this case to pay Rs. 500 as costs of the Rule which has been discharged.

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