1. This Rule has been issued to show cause why the decree passed by the Additional District Judge of Sylhet should not be set aside and such other order made by this Court as to this Court may seem fit arid proper. The petitioner in this Rule was the plaintiff in a suit which had been instituted against the defendant opposite party for recovery of four sums of money and amount of Rs. 50 due on account of a loan, a sum of Rs. 72 due for boarding charges and a sum of Rs. 40 due on account of lodging charges and a sum of Rs. 138 due on account of compensation. The Court of first instance decreed the plaintiff's suit in full. On an appeal being preferred by the defendant the learned Additional District Judge upheld the decree of the Court of first instance, only in respect of the sum of Rs. 50 alleged to have been due on account of loan. With regard to the other three items of money the amounts were disallowed by the learned Judge, the boarding and lodging charges on the ground that the claim thereto was governed by the provisions of Articles 8 and 9 of the Indian Limitation Act and 4th item, namely, that relating to compensation without any reason being given by the learned Judge so far as that item is concerned.
2. The principal contention urged on behalf of the petitioner as relating to the boarding and lodging charges is that the learned Judge was wrong in holding that Articles 8 and 9 of the Limitation Act have any application to the case. The petitioner contends that this error in the decision on the question of limitation affected the jurisdiction of the learned Judge in dealing with the appeal and was so gross and palpable as would bring the case within the purview of Section 115, C.P.C. So far as this section is concerned I had the occasion to express my view of it or at least the meaning which think Clause (c) of that section bears in the case of Jogunnessa Bibi v. Satish Chandra 83 Ind. Cas. 438 : 51 C. 690 : 28 C.W.N. 559 : 39 C.L.J. 434 : (1924) A.I.R. (C.) 633. I adhere to the view which I then expressed as to the meaning of Clause (c) of this section. In my opinion this part of the section, has been advisedly framed in indefinite language in order to empower this Court to interfere and correct gross and palpable errors of subordinate Courts. It is unnecessary to state what my own view is with regard to the applicability of Articles 8 and 9 of the Limitation Act. It is enough, to say that after hearing the learned Advocate for the petitioner for a considerable length of time we are not agreed as to the question of applicability or otherwise of these articles. Under the circumstances it cannot be said with propriety that the error, if any, that was committed by the learned Judge was so gross and palpable as would bring the case within Clause (c) of Section 115, C.P.C.
3. An ingenious attempt has been made by the learned Advocate for the petitioner to show that the learned Judge exercised his jurisdiction illegally in applying the provisions of Articles 8 and 9 of the Limitation Act, because the pleadings in the case do not admit of the application of these Articles. I am unable to accede to this contention of the petitioner, for I find that the applicability of these Articles was contended for on behalf of the defendant in the Court of first instance, although that Court held that these Articles did not apply to the case. So far as these two items are concerned, therefore, the decision of the learned Judge does not appear to attract the operation of any of the clauses of Section 115 of the C.P.C.
4. The matter, however, is different with regard to the claim relating to the compensation. It appears that a sum of Rs. 38 was claimed as compensation for non-payments of the other items, namely, Rs. 50, Rs. 72 and Rs. 40 in all Rs. 162 which was claimed as due from the defendant. The Court of first instance decreed the plaintiff's suit, as I have stated, so far as this item of compensation is concerned. The learned Judge does not allude to this compensation at all in his judgment and he reversed the decision of the Court of first instance with regard to this claim for compensation without assigning any reason whatsoever for such reversal. This, in my opinion, amounts to acting illegally in the exercise of jurisdiction. I am of opinion that so far as this item is concerned the learned Judge's decision is open to revision by this Court under the provision of Section 115 of the C.P.C. It appears that this compensation or Rs. 38 was claimed for nonpayment of the total was claimed for nonpayment of the total sum of Rs. 162. The plaintiff has succeeded in recovering a decree for Rs. 50 out of this amount of Rs. 162. He is, therefore, entitled to a proportionate compensation, namely, Rs. 12 for the sum of Rs. 50 which had been decreed to him.
5. The result therefore, is that the learned Judge's decision is varied to the extent indicated above and the Rule is made absolute to that extent. Having regard to the proportion of success and defeat of the proportion of success and defeat of the proportion of success and defeat of the parties in this Court we make no order as to costs of this rule.
6. I agree.