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Kumar Gopika Raman Ray Vs. Mahar Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1924Cal872
AppellantKumar Gopika Raman Ray
RespondentMahar Ali and ors.
Cases Referred and Mahammad Yusuf v. Abdul
Excerpt:
- .....as soon as the appeal was called on, mr. ray took the preliminary objection on behalf of the tenants as stated in the order. some discussion followed and ultimately the order as recorded was made. the reason why the order was recorded at that stage was that, as the hearing of the appeal was likely to occupy several days, it was felt that the tenants should not be put to the expense of being represented in court everyday while the appeal was proceeding against the proprietor defendant alone. the order was made in the presence of representatives of all the parties, and no observation was made or exception taken by the vakils for the proprietor defendant who were present in court. after the order had been passed, mr. chakrabarti proceeded to open the appeal, and our notes show that.....
Judgment:

Mookerjee, J.

1. This Rule was granted on an application for review of the order made by this Court on the 4th July 1922, in connection with Appeal from Original Decree No. 204 of 1919. The order was in these terms.

Before Babu Dwarka Nath Chakrabarti proceeds to open this appeal, Babu Mahendra Nath Ray, on behalf of the adult tenant defendants, takes a preliminary objection that the appeal is incompetent and cannot proceed as against the tenant defendants, because some of the tenant defendants have died and no steps have been taken to bring their legal representatives on the record, and that from the nature of the reliefs sought the appeal cannot proceed as against the surviving tenant defendants. In reply, Babu Dwarka Nath Chakrabarti states that he intends to proceed against defendant No. 161 (proprietor) only. The appeal will therefore stand dismissed as against the tenant defendants (Nos. 1-160), both adults and infants.

2. The appeal was taken up for disposal on the 4th July 1922. Mr. Chakraburti, Mr. Guha and Mr. Sarbadhikary appeared on behalf of the plaintiff appellant. There were two sets of respondents, namely defendants Nos. 1 to 160 who were tenants and were represented by Mr. Ray, and Mr. Palit; and defendant No. 161 who was the proprietor and was represented by Mr. D. Ray, Mr. Sen, Mr. B.C. Das, Mr. N.C. Das and Mr. Majumdar. Mr. S.R. Das, Counsel, appeared with them. It is stated that some or all of these gentlemen also appeared for the tenants.

3. As soon as the appeal was called on, Mr. Ray took the preliminary objection on behalf of the tenants as stated in the order. Some discussion followed and ultimately the order as recorded was made. The reason why the order was recorded at that stage was that, as the hearing of the appeal was likely to occupy several days, it was felt that the tenants should not be put to the expense of being represented in Court everyday while the appeal was proceeding against the proprietor defendant alone. The order was made in the presence of representatives of all the parties, and no observation was made or exception taken by the vakils for the proprietor defendant who were present in Court. After the order had been passed, Mr. Chakrabarti proceeded to open the appeal, and our notes show that this occupied the whole of the day. At the close of the day, when the Court was about to adjourn, Mr. S.R. Das (who was not in Court when the order was passed) came in and stated that he would raise an objection to the competency of the appeal against the proprietor defendant No. 161 after the appeal had been dismissed against the tenants. Mr. Chakrabarti contended that the objection came too late, and stated that if such objection had been indicated before the order was made, as it might have been, by the vakils for the proprietor who were present in Court at the time, he would not have abandoned the appeal as against the tenants. The Court intimated that Mr. S.R. Das would be heard on the point the next morning. Mr. Chakrabarti stated that he would apply for the discharge of the order, as his application had been made under a misapprehension. On the next day, the parties were heard and the hearing of the appeal was adjourned. The present application was thereafter made so that the order of the 4th July 1922, might be recalled and the appeal set down for hearing in its entirety. We grant ed a Rule calling upon the opposite party to show cause why the order should not be discharged and the appeal heard in its entirety.

4. The Rule was heard on 27th July 1923, and we intimated that the Rub would be made absolute, but that our reasons would appear in our judgment in the appeal. It was then assumed that the appeal would be heard by us forthwith. But by reason of circum stances beyond our control, the appeal has Been postponed till after the Long Vacation when it may possibly be heard by a Bench differently constituted. We have accordingly considered it necessary to place on record our reasons.

5. There is no room for doubt as to what actually happened. When Mr. Ray took the preliminary objection and Mr. Chakrabarti offered to abandon the appeal against the tenants, the latter undoubtedly intended to proceed with the appeal as an effective appeal against the proprietor. He did not anticipate that any objection could or would be taken on behalf of the proprietor to the adoption of such a course. The vakils for the proprietor were present in Court, and not only did they not intimate at that stage that there was any objection to the competency of the appeal, but they allowed the argument to proceed for the whole day. These were unquestionably arguments on behalf of the appellant in an appeal against the proprietor alone, for the order for dismissal of the appeal against the tenants had already been made. The objection was intimated for the first time by Mr. S.R. Das when he came into Court at the close of the day, after the arguments for the appellant had proceeded a long way. Mr. Chakrabarti forthwith stated that if this line was adopted by the proprietor respondent, he would ask the Court to vacate the order and to hear the appeal in the presence of all the parties concerned. In the circumstances stated, we feel no doubt that the order should be recalled in the interest of justice and that the Court should be left free to deal with the appeal in its entirety including the question of the competency of the appeal as against the tenants on the ground mentioned by Mr. Ray. We cannot reconcile ourselves to the view that the Court should be hampered in its endeavour to examine and decide the real matters in controversy between the parties, by reason of the order of the 4th July 1922.

6. We have been pressed to hold, however, that we have no jurisdiction to vacate the order in view of the decision of the Judicial Committee in Chhajju Ram v. Neki A.I.R. 1922 P.C. 112. In that case, Viscount Haldane held that the expression 'any other sufficient reason' must be interpreted to mean 'a reason sufficient on ground at least analogous to those specified immediately previously.' Whether any analogy can be discovered between the two grounds specified, namely, 'the discovery of new and important matter or evidence' and 'some mistake or error apparent on the face of the record' need not be discussed. But whether a particular reason is analogous to either the one or the other of these two grounds, may obviously lead to very refined if not subtle arguments. No useful purpose will be served by an attempt to review and reconcile the numerous decisions on the subject from the time when the decision of the Full Benches in Nasiruddin v. Indronarayan [1866] B.L.R. 367, and Chintamonee v. Pearee Mohun [1870] 6 B.L.R. 126, were pronounced. But we may recall the decisions of the Judicial Committee in Hurryhur v. Madub Chunder [1871] 14 M.I.A. 152; Reasut v. Abdoollah [1876] 2 Cal. 131; Gungaparshad v. Maharani [1884] 11 Cal. 379, and Mahammad Yusuf v. Abdul [1889] 16 Cal. 749, which indicate that the discretion of the Court in saying what is 'sufficient reason' within the mean-ling of Order 47, Rule 1 is not as rigidly circumscribed as the opposite party contends.

7. The result is that, as already intimated, the Rule must be made absolute, and the order of the 4th July 1922 vacated. This order will operate only against those who have been duly served with notice of this Rule.


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