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Bomkesh Seth and anr. Vs. Bhutnath Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.689
AppellantBomkesh Seth and anr.
RespondentBhutnath Pal and ors.
Cases ReferredBandiram Mookerjee v. Purna Chandra Roy
Excerpt:
letters patent, (cal.), clause 15 - revisional order--appeal--jurisdiction. - 1. this is an appeal under clause 15 of the letters patent from a judgment of mr. justice newbould passed in the exercise of revisional jurisdiction.2. a suit for rent was instituted by the appellant in the court of the first munsif at sealdah in the district of 24-perganas. the claim was contested and the suit was dismissed. an appeal was thereupon lodged in the court of the subordinate judge of 24 pargannas. the appeal was heard on the merits and the decision of the trial court was reversed. against the decree of the subordinate judge two proceedings were instituted in this court : one was an appeal from appellate decree, the other was an application for revision, on the basis whereof a rule was issued by this court. the common question which was argued before mr. justice newbould in.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould passed in the exercise of revisional jurisdiction.

2. A suit for rent was instituted by the appellant in the Court of the First Munsif at Sealdah in the District of 24-Perganas. The claim was contested and the suit was dismissed. An appeal was thereupon lodged in the Court of the Subordinate Judge of 24 Pargannas. The appeal was heard on the merits and the decision of the Trial Court was reversed. Against the decree of the Subordinate Judge two proceedings were instituted in this Court : one was an appeal from appellate decree, the other was an application for revision, on the basis whereof a Rule was issued by this Court. The common question which was argued before Mr. Justice Newbould in both these proceedings was, whether an appeal lay to the Subordinate Judge from the decision of the Primary Court. It was urged that as the amount claimed did not exceed lis. 50 and as the suit was decided by a Munsif who was empowered by the Local Government to exercise final jurisdiction under Section 153 of the Bengal Tenancy Act, his decision could not be challenged by way of appeal to the Subordinate Judge. Mr. Justice Newbould came to the conclusion that the appeal from appellate decree presented to him was incompetent, because the Subordinate Judge had not determined by his decree any of the special questions mentioned in Section 153 of the Bangal Tenancy Act which would justify an appeal to this Court. In this view, the appeal from appellate decree was dismissed as incompetent. In the Rule Mr. Justice Newbould came to the conclusion that the decree of the Subordinate Judge must be discharged as made without jurisdiction. His view of the proceedings in the Trial. Court was that no such special questions had been decided there as would entitle the party aggrieved to maintain the appeal before the lower Appellate Court. From this stand point he made the Rule absolute, set aside the decree of the Subordinate Judge and restored the decree of the Court of first instance.

3. The present appeal under the Letters Patent purports to be directed against the decree of dismissal made in the appeal from appellate decree as also against the order for reversal made in the Rule, As regards the decree of dismissal made in the appeal from appellate decree, it is clear that the appellant is not entitled to maintain the appeal. That decree is in his favour and he cannot appeal against a decree in his favour, solely with a view to attack the propriety of the grounds assigned in the judgment in support of that decree. In reality, the appeal under the Letters Patent is directed against the order made in the Rule.

4. A preliminary objection to the appeal has been taken on behalf of the respondent, that the appeal is incompetent by virtue of the amendment made in 1919 in Clause 15 of the Letters Patent. The relevant portion of the Letters Patent, as amended, is in the following terms: And we do further ordain that an appeal shall lie to the High Court of Judicature at Fort William in Bengal from a judgment (not being an order made in the exercise of revisional jurisdiction) of one Judge of the said High Court.' There can be no doubt that the order made by Mr. Justice Newbould is a judgment within the meaning of Clause 15 of the Letters Patent. The question is, is it an order made in the exercise of revisional jurisdiction p If the answer be in the affirmative, no appeal lies under Clause 15 of the Letters Patent against such order, On behalf of the appellant, the argument has been advanced hat an appeal lies to enable the appellant to show that the. order, which purports to have been made in the exercise of revisional jurisdiction, was made without jurisdiction. We are of opinion that this contention is not well founded.

5. We are not unmindful of the decision of the Judicial Committee in the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi 10 I.A. 4 : 9 C. 482 : 12 C.L.R. 511 : 7 Ind. Jur. 161 : 4 Sar. P.C.J. 406 : 4 Ind. Dec.(N.S.) 970, where the following observation occurs: 'Their Lordships do not think that Mr. Justice Pontifex can be properly treated as. having usurped jurisdiction : but, if he had, this would have been a valid ground of appeal, and they are unable to agree with the Chief Justice that if a Judge of the High Court makes an order under a misapprehension of the extent of his jurisdiction, the High Court had no power by appeal, or otherwise to set right such a miscarriage of justice.' This pronouncement was made in 1882, long before the amendment of the Letters Patent in 1919. The terms of the Letters Patent, as amended, are perfectly clear and we are not prepared to accept the contention of the appellant that the only orders made in the exercise of revisional jurisdiction which are made non-appealable by the Letters Patent are orders made with jurisdiction. The orders which are made non appelable are, in our opinion, all orders made in the exercise of revisional jurisdiction, and an appeal cannot be maintained to test whether an order which purports to have been made in the exercise of revisional jurisdiction was or was not made without jurisdiction. To adopt the contrary view would be to substitute the expression 'Order made with jurisdiction in the exercise of revisional jurisdiction' for the expression 'Order made in the exercise of revisional jurisdiction.' We are fortified in this view when we recall the history of the law on the subject.

6. It is well known that before this amendment was made, there had been a considerable divergence of judicial opinion upon the question whether an appeal was allowed under the Letters Patent against orders made in the exercise of revisional jurisdiction. The trend of opinion, which was by no means uniform, in the High Courts of Calcutta and Madras was in favour of the right of appeal. Reference need be made to the cases, among others, of Shew Prosad Bungshidhar v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323, Debendra Nath Das v. Bibhudhendra Mansingh 33 Ind. Cas. 745 : 43 C. 90, Assaram v. Kesri Chand 33 Ind. Cas. 247 : 22 C.L.J. 22, Peary Lall v. Banamali Dey 30 Ind. Cas. 862 : 22 C.L.J. 40 Baijnath v. Jung Bahadur 30 Ind. Cas. 906 : 22 C.L.J. 113, Chappan v. Moidin Kutti 22 M. 68 : 8 M.L.J. 231 : 8 Ind. Dec. (N.S.) 49 (F.B.), Tuljaram Row v. Alagappa Chettiar 8 Ind. Cas. 340 : 35 M.I. : (1910) M.W.N. 697 : 8 M.L.T. 453 : 21 M.L.J. 1 and Srinivasa Iyengar v. Ramaswami Chettiar 29 Ind. Cas. 846 : 39 M. 235 : 29 M.L.J. 12 : 18 M.L.T.46, A contrary view was indicated in the cases of Hiralal v. Bai Asi 22 B. 891 : 11 Ind. Dec. (N.S.) 1l77 and Nisar Ali v. Ali Ali 28 A. 133 : A.W.N. (1905) 218. It was to remove this divergence of judicial opinion that the Letters Patent was amended and the amendment gives effect to the opinion that an appeal should not lie from orders made in the exercise of revisional jurisdiction. The order made by Mr. Justice Newbould was unquestionably made in the exercise of revisional jurisdiction : whether he exercised that jurisdiction when he should not have exercised it, is a matter which cannot be investigated by way of an appeal.

7. We may add that reliance was phased upon the decision of this Court in the case of Bandiram Mookerjee v. Purna Chandra Roy 43 Ind. Cas. 758 : 45 C. 926 : 27 C.L.J. 115 to show that when a decree has been made without jurisdiction, an appeal lies against it, precisely in the same manner as if it had been made with jurisdiction. But this doctrine is of no assistance to the appellant : an appeal lies against a decree made without jurisdiction, because a decree so made possesses all the qualities of a decree under the Civil Procedure Code On the other hand the analogy may well be invoked to support the view that an order made in the exercise of revisional jurisdiction is an order so made, even if it has been made without jurisdiction.

8. We are, accordingly, of opinion that the present appeal is incompetent and must be dismissed with costs.


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