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1949 DIGILAW 308 (CAL)

Major P. Bardhan v. Dr B. Sarkar

1949-07-13

body1949
JUDGMENT Sen, J. - This is an application fur review brought by the Plaintiff whose suit was decreed by the Court of Small Causes, Calcutta, but dismissed on revision by this Court. The judgment in revision was passed by Mr. Justice Chakravartti. The Plaintiff's case was that the Defendant was his tenant and that he wrongfully removed four pairs of teak wood doors from the premises let out to him by the Plaintiff. It was suggested that the Defendant did this maliciously and wrongfully because he had been served with a notice to quit. The Defendant's case was that the doors were removed by the darwan of the Plaintiff. The trial Court held in favour of the Plaintiff. There was a new trial before the Full Bench of the Calcutta Small Cause Court and that Bench upheld the decision of the trial Judge. Against this decree this Court was moved under sec. 115 of the Code of Civil Procedure. A Rule was issued and as I have stated before, it was heard and disposed of by Mr. Justice Chakravartti in favour of the tenant. His Lordship has held that the Plaintiff had entirely failed to prove the actual removal of the doors by the Defendant. His Lordship then went on to consider another point taken by the Plaintiff, that by virtue of the provisions of sec. 108 (m) of the Transfer of Property Act the Defendant was liable for the removal of the doors because they had been removed during the term of his tenancy. His Lordship held that it was not sufficient to prove that the damage took place during the term of the tenancy and that it should be shown in addition that the tenant did some act or omission which led to the damage. Having come to this conclusion his Lordship dismissed the suit and made the Rule absolute in the following terms: In my view, the courts below have taken a wrong view of law and were not right in decreeing the plaintiff's suit In the result, the Rule is made absolute, The judgments and decrees of the courts below are set aside and the plaintiff's suit is dismissed. In view of the facts, there will be no order for costs either in this Court or in the courts below. 2. Mr. In view of the facts, there will be no order for costs either in this Court or in the courts below. 2. Mr. Sen appearing on behalf of the Petitioner contends that as this was an application under sec. 115 of the Code of Civil Procedue, the learned Judge was wrong in interfering with the decision of the Court below merely because there had been an error of law. His contention is that before the Court can act under sec. 115 of the CPC the Court must be satisfied that the error of law committed by the lower Court had led to a wrong assumption of jurisdiction or that at any rate the error related to a question of jurisdiction. In the present case he argued that no question of jurisdiction was involved. There was an error which was a pure error of law unconnected with the question of jurisdiction or procedure and that consequently the learned Judge who disposed of the Rule had committed an error in interfering with the judgment of the Court below. This he says is an error apparent on the face of the record and that consequently the decision should be reviewed. Mr. Sen's argument was based on the assumption that the learned Judge in disposing of the Rule was acting on the mistaken view that this was an application under sec. 25 of the Provincial Small Cause Courts Act. Under the provisions of that section this Court has power to set aside a decision on grounds other than those specified in sec. 115 of the Code of Civil Procedure. The decision which has been set aside in this case was a decision of the Presidency Court of Small Causes and this Court could interfere with the decision of the Presidency Small Cause Court under sec. 38 of the Presidency Small" Cause Court Act only on the grounds mentioned in sec. 115 of the Code of Civil Procedure. Learned Advocate appearing on behalf of the Opposite Party argued that the error, if any, committed by the learned Judge was a mere error of law and that it was not an error which could be described as an error apparent on the face of the record. His contention is that the error contemplated in Or. Learned Advocate appearing on behalf of the Opposite Party argued that the error, if any, committed by the learned Judge was a mere error of law and that it was not an error which could be described as an error apparent on the face of the record. His contention is that the error contemplated in Or. 47, r. 1 of the CPC is an error which is obvious and blatant and which is evident and that it must be an error which does not need any discussion of the law to establish it. 3. It is now well-established that a mere error of law would not attract the operation of Or. 47, r. 1 of the Civil Procedure Code. The error must be one which is blatant and obvious, it must be an error which does not require any elaborate discussion for its establishment. This has been laid down in several cases. I need refer, however, only to the decision of the Judicial Committee in the case of Chhajju Ram v. Naki L.R. 49. A. 144 (1913) where their Lordships expressed the view that a mere error of law would not afford sufficient ground for 1 review. Mr. Sen argued that the error of the learned Judge was a gross and palpable error which could be detected by the mere reading of the record and that, therefore, tin's Court should review the judgment. In this connection he referred to the recent decision of the Privy Council in the case of N.S. Venkatagiri Ayyangar v. The Hindu Religions Endowments Board, Madras 53 C.W.N. 458 (1948) and he says that after this decision of the Privy Council it is quite clear that this Court cannot exercise its powers under sec. 115 of the CPC except where the Court below has committed an error which has led to a wrongful assumption of jurisdiction or a wrongful refusal to exercise jurisdiction. His view is that the learned Judge when disposing of this Rule was under the erroneous impression that he was dealing with an application under sec. 25 of the Provincial Small Cause Courts Act and not with an application under sec. 115 of the CPC and he argues that it is this which led the learned Judge to make the Rule absolute on the ground that there had been mere error of law. 25 of the Provincial Small Cause Courts Act and not with an application under sec. 115 of the CPC and he argues that it is this which led the learned Judge to make the Rule absolute on the ground that there had been mere error of law. He adds that if the learned Judge was aware of the fact that he was dealing with the case under sec. 115 of the Code of Civil Procedure, he would certainly not have made the Rule absolute. I can see no ground for holding that the learned Judge was under this misapprehension. The application itself stated that it was under sec. 115 of the Code of Civil Procedure. It also stated that it was an application against a decree passed by the Presidency Court of Small Causes. I see no reason for presuming that the learned Judge did not read the petition and was not aware of its contents. Some passages in his judgment clearly show that he was fully alive to the fact that this was an application under sec. 115 of the CPC from a decision of the Presidency Small Cause Court. In his judgment he says "The trial Court decreed the suit and an application for a new trial proved unsuccessful." Now, it is only in the Presidency Small Cause Court Act that there is a provision for a new trial. The Provincial Small Cause Courts Act contains no such provision. It is thus clear that the learned Judge was fully aware of the fact that he was dealing with a suit which was instituted in the Presidency Small Cause Court. 4. As regards the question whether the learned Judge in making the Rule absolute on a ground of law committed an error which was apparent on the face of the record, much can be said in favour of the view that the error was not of this description. Learned Advocate appearing for the Opposite Party has placed several decisions before me in which this Court has held that it was permissible for this Court to grant relief under sec. 115 of the CPC where there has been a gross error of law. There can be no doubt that there have been a number of conflicting decisions on the interpretation of sec. 115 of the Code of Civil Procedure. 115 of the CPC where there has been a gross error of law. There can be no doubt that there have been a number of conflicting decisions on the interpretation of sec. 115 of the Code of Civil Procedure. Some learned Judges have given this section a very liberal interpretation and have construed it as giving the Court power to grant relief where there has been a gross and palpable error of law which has led to injustice. There are cases which hold the other view that unless the error involves the question of jurisdiction this Court has no power to interfere under sec. 115 of the Code of Civil Procedure. As instances of the former view I would refer to the following-cases: Gulabchand Bangur v. Kabiruddin Ahmed ILR 58 Cal. 111 (1981), Jogannessa Bibi v. Satish Chandra Bhattacharjee 28 C.W.N. 559 (1928) and Indubala Dassi v. Lakshmi Narayan Ganguly 38 C.W.N. 1146 (1983), where many eminent Judges have held the view that a serious error of law will give the Court jurisdiction to interfere under sec. 115 of the Code of Civil Procedure. Mr. Sen, however, argued that the recent decision of the Judicial Committee in the case of N.S. Venkatagiri Ayyangar v. The Hindu Religious Endowments Board, Madras 53 C.W.N. 458 (1948) has set the matter at rest and has overruled most of the decisions where it was held that an error of law even if it did not affect the question of jurisdiction would give the Court power to act under sec. 115 of the Code of Civil Procedure. In my opinion the case relied upon by Mr. Sen has not gone beyond what has been laid down in the two old cases, namely, the cases of Rajah Amir Hassan Khan v. Sheo Baksh Singh L. B. 11 I. A. 281 (1885) and Balakrishna Udayar v. Vasudeva Aiyar L. B. 44 I. A. 261 (1910). I would say with great respect that these two cases were if anything more explicit on the question when the Court could interfere under sec. 115 of the Code of Civil Procedure. In spite of these decisions there were numerous conflicting decisions of this Court regarding its powers of interference under sec. 115 of the Code of Civil Procedure. I would say with great respect that these two cases were if anything more explicit on the question when the Court could interfere under sec. 115 of the Code of Civil Procedure. In spite of these decisions there were numerous conflicting decisions of this Court regarding its powers of interference under sec. 115 of the Code of Civil Procedure. That being so, it cannot be said that the learned Judge when he made the Rule absolute on the ground that the Courts below had committed an error of law was himself committing a mistake or error apparent on the face of the record. It may be that his decision is wrong in law but that fact alone will not, as I have said before, give the Plaintiff a right to have the judgment reviewed. In my opinion it cannot be said that in this case there was a mistake or error apparent on the face of the record and I, therefore, hold that the judgment cannot be reviewed. The Rule is accordingly discharged with costs.