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Mohim Chunder Pal Chowdhry Vs. Mirza Ahmad Ali Khan - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.346
AppellantMohim Chunder Pal Chowdhry
RespondentMirza Ahmad Ali Khan
Cases ReferredKailash Chandra Haldar v. Bissonath Paramanic
Excerpt:
civil procedure code (act v of 1908), sections 102 and 115, erroneous decision on question of limitation - interference by high court in revision--limitation, omission to decide question of, effect of--suit for rent or for damages for less than rs. 100--appeal, whether maintainable--bengal tenancy act (viii of 1885), section 153. - .....behary singh v. madhub chundra ghose 23 c.884. whichever view may be taken of the nature of the suit, the appeal cannot consequently be entertained. the appeal is accordingly dismissed.2. we have been invited, however, to interfere with the decree of the subordinate judge in the exercise of our revisional jurisdiction. but it is plain that the provisions of section 115 cannot be applied to this case. the subordinate judge had jurisdiction to hear the appeal preferred to him and to reverse the decision of the primary court, if he has committed an error of law, that does not constitute a valid ground for interference by this court in the exercise of its revisional powers. it is immaterial that the alleged error touches the question of limitation. the subordinate judge has decided,.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the defendant in a suit framed, in the alternative, for recovery of rent or of damages for use and occupation. The sum claimed is less than Rs. 100. It is obvious that the appeal is incompetent. If it be treated as a suit for rent, the appeal is barred under Section 153 of the Bengal Tenancy Act, as none of the special questions mentioned therein has been decided by the decree. If, on the other hand, the suit is treated as one for damages for use and occupation, it is barred under Section 102 of the Code of Civil Procedure: Kunjo Behary Singh v. Madhub Chundra Ghose 23 C.884. Whichever view may be taken of the nature of the suit, the appeal cannot consequently be entertained. The appeal is accordingly dismissed.

2. We have been invited, however, to interfere with the decree of the Subordinate Judge in the exercise of our revisional jurisdiction. But it is plain that the provisions of Section 115 cannot be applied to this case. The Subordinate Judge had jurisdiction to hear the appeal preferred to him and to reverse the decision of the Primary Court, If he has committed an error of law, that does not constitute a valid ground for interference by this Court in the exercise of its revisional powers. It is immaterial that the alleged error touches the question of limitation. The Subordinate Judge has decided, though possibly erroneously decided, the question of limitation which he was called upon to consider: Sundar Singh v. Dora Shankar 20 A. 78 : A.W.N. (1897) 168; Ramgopal Jhoonjhoonwalla v. Joharmall Khemka 15 Ind. Cas. 547 : 39 C. 473. The position might have been different if he had decreed the suit without a decision upon the question of limitation: Kailash Chandra Haldar v. Bissonath Paramanic 1 C.W.N. 67. The application for revision must consequently be refused.

3. This decision, it is conceded, will govern the other appeals and applications, on which similar orders will be drawn up.


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