1. This is an application under Section 115, Civil P.C., alleging inter alia that the Full Bench of the Court of Small Causes in Calcutta has exercised a jurisdiction not vested in it.
2. The petition brought a suit in Court for the price of goods sold delivered. The defence was a denial, and the seventh Judge of the Court, Mr. P.C. Dutt, dismissed the suit.
3. The petitioner then applied for a new trial under Section 38, Presidency Small Cause Courts Act.
4. The application was heard by what was called a Full Bench consisting of the Chief Judge and Mr. P.C. Dutt, when new grounds were added, namely that the petitioner had lately discovered fresh evidence to the effect that the defendant firm had disposed of the goods in suit to a third party, and after hearing arguments the Court granted the application, set aside the order of dismissal, restored the suit and ordered it to be heard by Mr. Latifur Rahman, Judge, Fourth Bench.
5. Thereupon the defendant firm applied for a new trial to set aside the said order on the ground inter alia that the Full Bench had erred in law in setting aside the order of dismissal of the trial Court on the mere allegation of the petitioner that he had discovered fresh evidence without requiring him to give particulars or prima facie proof of the existence of such evidence or to produce it before the Court and in find produce it before the Court and in finding without proof that such evidence was not available at the time of trial.
6. A Full Bench consisting of the Chief Judge, Mr. N.C. Sen and Mr. P.C. Dutt, heard this application ex parte and issued a notice directing the petitioner to produce documentary proof in support of his allegation that he had discovered fresh evidence.
7. The evidence upon which the petitioner relied was contained in khata books which were in the possession of one Wahed Hossain who lived more than 200 miles Calcutta and alleged that he was ill, and the petitioner was unable to secure his attendance with his khata books in spite of the service of a subpoena. After several adjournments, and after dismissing the petitioner's application for the issue of a commission of the Judges who expressed some doubt as to the genuineness of the petitioner's alleged inability to procure the attendance of his witness or produce the necessary khata books, set aside the order granting a new trial and restored the order of the trial Judge dismissing the suit.
8. According to the petitioner they did this on the ground that they thought that it was impossible that the evidence of the witness Hossain would be believed especially as it was sought to examine him on commission or at any rate the possibility was not more one way than the other.
9. The question which I have to decide is whether they had jurisdiction to make this order.
10. Chapter 6, Presidency Small Cause Courts Act, bears the heading 'New Trials and Appeals.' Section 37 is as follows:
Save as otherwise provided by this chapter or by any other enactment for the time being in force every decree and order of the Small Cause Court in a suit shall be final and conclusive.
11. Section 38 provides that the Court, may on the application of either part, made within eight days from the date of the decree or order in the suit order a new trial to be held or alter, set aside or reverse the decree or order upon suet terms as it thinks reasonable and may in the meantime stay the proceedings. Sections 39 and 40 provide machinery for removing into the High Court for trial suits in which the subject-matter exceeds in value one thousand rupees.
12. Thus it will be observed that there is no appeal from any decree or order of the Court except as provided by Section 38 The wording of this section is wide enough to cover appellate jurisdiction both on fact and on law. But it has been settled law in India for many years founded on a number of decisions of which the principal are Sadasook Gambir Chand v. Kannaya  19 Mad. 96; Sassoon v. Hurry Das Bhukat  24 Cal. 455, Srinivasa Charlu v. Balaji Rau  21 Mad. 232 and Sai Sikandar Rawther v. Ghose Mohidin Marakayar  40 Mad. 35 that the Court under Section 38 can exercise only revisional jurisdiction, an expression used in India to distinguish appeal on points of law only, from appeals on questions of fact or mixed fact and law which alone are designated appellate. Or in other words he Court under this section has no jurisdiction to decide questions of fact. An apparent exception seems to have been made in the cases of Behram Kaikhushru Irani v. Ardeshir Kavasji  27 Bom. 563 and Johan Smidt v. Ram Prasad  8 Q.B.D. 176 in which it was held that the Court could order a new trial where the judgment was manifestly against the weight of evidence. This means presumably that a new trial may be granted when the judgment is one to which no reasonable man ought to have come and not merely because the Court to whom application is made takes a different view of the evidence. This is the English practice Solomon v. Bitton  38 CaL. 425. And this exception was admitted by Sale, J., in Sassoon v. Hurry Das Bhukat  24 Cal. 455 at p. 459 upon the authority of MacEwen's Small Cause Court Practice.
13. The main reasons given by the Judges for putting this limited construction upon the words of the; sections are that such had been the settled practice of the Courts for many years, that no appellate powers had been given in the original Act of 1850 and that the powers of the Court were not intended to be increased when the Act of 1882 was passed or when it was amended in 1895. Further that the words of the section taken together show a clear intention not to allow appeals on questions of fact and to follow closely the English County Court legislation, procedure and practice.
14. Thus Sections 37 and 38 of the Act of 1895 and the corresponding Sections of previous Acts back to the first Act in 1850 are modelled obviously upon Section 93, English County Courts Act of 1888 and the corresponding sections of previous English Acts back to the first Act in 1846 with the addition of the words 'or alter, set aside or reverse the decree or order' which take the place of the power to order judgment to be entered for any party given an appeal to the High Court by Section 120 of the English Act. Section 93 comes under part 4 of the Act which is headed 'Procedure and Trial' but Section 120 comes under part 5 which is headed 'Appeals &c.;' The word 'appeal' in England is used to express not only appeal on fact only or on mixed fact and law but appeal on law only and it is in the latter sense that the word is used in Section 120 as appears from the express words of the section. And it is sufficiently obvious in my opinion that the word has the same meaning in Chap. 6, of the Indian Act in spite of the meaning which is ordinarily given to the word in India. The history of this concurrent legislation in England and India is fully described in the able and convincing judgment of Sir John Wallis, C.J., in Sai Sikander Rowther v. Ghouse Mohidin Marakayar  40 Mad. 355 at p. 361 to 365 with which I respectfully agree.
15. Owing to the fact that county Court Judges in England sit singly and that they might find some difficulty about granting new trials in cases tried before themselves a limited right of appeal to the Courts of Common Law was given and this is preserved by Section 120 of the present Act, which gives a similar right of appeal to the High Court.
16. This provision was unnecessary for Small Cause Courts because the application for a new trial could be heard by the Full Court or a Bench thereof. But in my opinion it cannot reasonably be contended that the legislature meant to give to such Full Courts and Benches larger powers than were given to the English High Court. On the contrary their powers are less because the English High Court has been expressly empowered by an amendment introduced in the Act of 1888 to draw any inference as to fact. But no such power has been conferred on the Small Cause Courts.
17. As was said by Grove, J., in Cousins v. Lombard Deposit Bank  1 Ex. D. 440:
If an appeal were allowed upon questions of fact the result would be that...the object of the legislature in establishing cheap and expeditious tribunals would be defeated.
and by Wallis, C.J., in Sai Sikander Rowther v. Ghouse Moideen Markayar  1 Ex. D. 440:
Not only would the summary nature of the tribunal be destroyed, but the work of the Court would be blocked. Again, if the legislature had intended to allow appeals on the facts, some record of the evidence would certainly have been prescribed.
18. This being the state of the law, I have now to consider what it was exactly that the Full Bench in this case purported to do. In accordance with the maxim omnia rite acta praesumuntur it must be presumed that the Bench consisting of the Chief Judge and P.C. Dutt J., exercised their jurisdiction in accordance with law and were satisfied upon the materials which were before them that the petitioner had discovered fresh evidence, that such evidence could not with reasonable care have been discovered previously Robinson v. Smith  1 K.B. 711, and that such evidence if believed would be conclusive, Brown v. Dean  A.C. 373. It was for them to decide whether the materials upon which they based their decision were sufficient to satisfy them, and the form, whether oral or in writing, in which these materials were to be tendered was within their absolute discretion to accept or reject.
19. Therefore, although the defendant firm, doubtless realizing that there could be no appeal on questions of fact, framed their application on the ground of error in law, there is nothing to show that the Court had failed to apply correctly the rules of law, and what the defendant firm really complained of was that the Court had come to a wrong decision on questions of fact, namely, the existence or otherwise of such facts as would entitle the petitioner to a new trial. And what the Full Bench consisting of the Chief Judge and Sen and Dutt, JJ., purported to do and did, was to decide questions of fact, and to set aside the decision on such questions of fact which had been given by the Chief Judge and P.C. Dutt, J. This, in my opinion, the Full Bench had no power or jurisdiction to do, under the provisions of Section 38 or otherwise.
20. I am aware that in the suit of Surrut Coomari Dassee v. Radha Mohan Roy  22 Cal. 784, Sale, J., decided that the Small Cause Court has power to hear more than one application for a new trial in the same cause. The facts of that case however were peculiar, and the Court, instead of granting a re-hearing on the first application for a new trial, made a decree in favour of the applicant, whose suit had been dismissed in the first instance, and that decree ipso facto became the decree in the suit. The decision, moreover, turned apparently upon a point of law, namely whether a certain order of attachment, which had been obtained against two only out of four executors, was binding on the estate.
21. The learned Judge refused to accept the argument that successive applications for new trials might lead to great inconvenience, and said that Section 37 of the Act of 1882 (Sections 37 and 38 of the present Act) was wide enough to permit more than one application in the same suit, and he referred with approval to the words of Sir Richard Couch in the case of Pursonchund Gloacha v. Kajooram 10 Beng L.R. 355. The language of Section 53, Act 9 of 1850, (the corresponding section in that Act) is certainly sufficiently large to allow of an application for a new trial, after a previous trial. There are instances in England in the Common Law Courts and in the Courts of equity where more than one trial has been granted, it appearing proper that it should be done. We think the same rule may be applied here. We must assume that the Judges of the Small Cause Courts will not exercise this power, unless it appears to them to be right to do so.
22. This was a case however where there had been a new trial, and then an application for a further new trial. This is a very different matter from an application to set aside an order for a new trial, which is in the nature of an appeal against an interlocutory order, and in the present case an appeal on questions of fact. If the judgment of Sale, J., was intended to cover a situation such as has arisen in the present case, I respectfully decline to follow it.
23. The argument that the words of the section are wide enough to include such extended jurisdiction, was repeatedly raised and rejected, among others by Sale, J. himself, upon the issue whether the Court's jurisdiction under Ch. 6 was appellate or only revisional. And the suggestion that the question should be left to the wisdom and discretion of the Judges was disposed of in the case of the Great Northern Railway Co. v. Mossop  17 C.B. 130 in which the question arose whether a County Court Judge had jurisdiction to entertain successive applications for a new trial, and in which Jervis, C.J., asked pertinently 'how often may the Judge review his discretion' and Wills, J. said:
The very object of instituting Courts or Justice is that litigation should be decided and divided finally. That has been felt by all jurists. It is long since a reason was assigned why judgments should be considered final and should not be ripped up again. Ne lites immortales essent dum litigantes mortales sunt. Human life is not long enough to allow of matters once disposed of being brought under discussion again and for this reason it has always been considered a fundamental rule, that when a matter has once become res judicata, there shall be an end of question about it. And this is especially necessary in the case of County Courts, which are principally intended to deal with matters of small amount. Of allo thers, it is manifest that they should have that most important of all attributes of a Court of Justice, viz., that their decisions should be final. That (the power to grant a new trial) is a power to be exercised, not with reference to interlocutory matters, but with reference to the final judgment, which, unless a new trial, is granted, must be considered a settled matter. Immediately that the Judge has exercised his discretion to grant or refuse a new trial, the exception to the general rule is exhausted and the general rule must prevail.
24. The decision of a Judge or a Bench of the Small Cause Court, whether in a matter of discretion or otherwise, is a decision of the Court itself, and any exception introduced by the legislature to the fundamental rule of law, to which I have referred, ought to be strictly construed. If successive applications for orders to set aside previous orders granting or refusing new trials were permissible, it is difficult to understand how there could ever be any end to them, or any finality in litigation, except the physical exhaustion of the Court or the financial ruin of its suitors.
25. For these reasons, I am of opinion, that the Full Bench, in setting aside the order made for a new trial, acted without jurisdiction, and this application mast be allowed with costs, and the original order for a new trial restored.