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Board of Examiners of the Pleader-ship and Moktearship Examinations Vs. Probhash Chandra Roy - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.527
AppellantBoard of Examiners of the Pleader-ship and Moktearship Examinations
RespondentProbhash Chandra Roy
Cases ReferredBank of Bombay v. Soleman Somji
Excerpt:
specific relief act (i of 1871), sections 45 and 46 - declaration, nature of--applicant to show he has specific legal right, his demand of that right and its denial--discretion--applicant to come with clean hands. - .....that he has succeeded in obtaining from mr. justice imam an order in these terms: that the board of examiners do entertain and consider the application of provash chundra roy and determine his fitness according to their discretion.' from that order what has been called the board of examiners--that i presume means the examiners--have appealed.2. at the outset, it is argued that this application must fail as being opposed to the terms of the specific relief act and as resting upon the order which was completely at variance with that for which the applicant prayed. now the prayer of the application may justly be described as of a very extraordinary character. first of all the applicant seeks an order 'that the board of examiners acted illegally in not publishing the petitioner's.....
Judgment:

1. This appeal arises out of an application under Chapter VIII of the Specific Relief Act. Section 45 of that Act enables this Court to order public servants and others to do certain specific acts and Section 46 indicates how the application is to be made and the procedure thereon. The present applicant is one who was examined last year for the Pleadership Examination and in connection with that examination, he was found to have been guilty of very grave misconduct--the misconduct was as grave as no one in his position should be capable of. There is no dispute as to that. He now seeks to be admitted to the same examination and has observed the prescribed conditions in so far as he has obtained a certificate from a High Court Pleader as to the fitness of his moral character and deposited with the District Judge of Alipore the requisite fees and it is on matters set out in some detail in his petition that he has succeeded in obtaining from Mr. Justice Imam an order in these terms: That the Board of Examiners do entertain and consider the application of Provash Chundra Roy and determine his fitness according to their discretion.' From that order what has been called the Board of Examiners--that I presume means the Examiners--have appealed.

2. At the outset, it is argued that this application must fail as being opposed to the terms of the Specific Relief Act and as resting upon the order which was completely at variance with that for which the applicant prayed. Now the prayer of the application may justly be described as of a very extraordinary character. First of all the applicant seeks an order 'that the Board of Examiners acted illegally in not publishing the petitioner's name in the list of successful candidates'--that is, from the list of candidates at the examination at which he committed the wrong and fraudulent act which has been brought home to him. Next be asks 'that it may be declared that the petitioner has passed the Pleadership Examination in 1912, that his name should be gazetted as a successful candidate or it may be declared.' That is practically the same ground. Then he goes on that the order of November 1912, appearing in the Calcutta Gazette' of the 27th November 1912, passed by the Board of Examiners of the Pleadership and Muktearship Examinations or by the Local Government is illegal or ultra vires.' There is absolutely no justification in Chapter VIII for any declaration of that sort. Lastly, it is said that it may be declared that the Board of Examiners have acted illegally in not entertaining the petitioner's application and his certificate of character at the ensuing examination for 1913.' That, again, is open to the same comment and I can only suppose that this application has been drawn without any reference to the terms of Section 45 of the Specific Relief Act. The terms of that Act are very clear. They enable the Court to make an order requiring any specific act to be done or forborne and nothing else. Then we have this, that the application must be founded on an affidavit of the person injured stating his rights, and his demand for justice and denial of justice. That had been disregarded not only in form and substance but with these materials the applicant went before the Court and obtained a Rule in these terms: 'It is ordered that the Board of Examiners for the Pleadership and Muktearship Examinations... appear at such examination.' What is the order that was made? It is in the terms of the order which, as I read it in the prayer in the petition, is at variance with the Rule that was granted.

3. Now, it is well established that in dealing with an application under Chapter VIII of the Specific, Relief Act certain principles applicable to the writ of mandamus should be followed and it is laid down in the case of the Bank of Bombay v. Soleman Somji 12 C.W.N. 825; 5 A.L.J. 463 (P.C.); 4 M.L.T. 16; 8 C.L.J. 103; 10 Bom. L.R. 438; 32 B. 466; 35 I.A. 130; 18 M.L.J. 355 (P.C.) that 'one of these principles is this, that the writ will not be allowed to issue unless the applicant shows clearly that he has the specific legal right to enforce which he asks for the interference of the Court, that he has claimed to exercise that right and none other and that his claim has been refused.' There has been no regard to these principles in this case. The order which the applicant has obtained is not one which can come within the description here contained. Indeed, when this was put before the learned Counsel who appeared for the petitioner as to whether he could point out that there was that demand for justice, it was admitted he could only do so by liberal reading of certain passages. That any suggestion of that kind could be made has not been made to appear before us or that there was any denial of the demand for justice. But it was suggested that we might overlook these matters. Is the present applicant a person in whose favour we ought to stretch the jurisdiction of this Court? It is a matter of discretion to us as to whether we shall take action under Section 45 or not. This applicant--I am only describing him mildly--does not come here with a clean hand. On the contrary, he comes here with dirty hands and I see no reason for making the slightest concession in his favour. In my opinion, I think it would be wrong to uphold the order that has been made.

4. I think that the appeal must be allowed and the application must be dismissed with costs.


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