(Received the assent of the Governor-General on the 10th March 1863.)
PREAMBLE
Whereas the Resolution of the Governor-General in Council, dated the 31st January 1862, declares that, instead or a Judicial Commissioner for the whole Province of British Burmah, whose ordinary business can well be undertaken by the Chief Commissioner, and who, as Judge of a Special Court sitting at the Head Quarters of each Division, could not possibly dispose of the Causes arising at each place in a manner that would satisfy the suitors, or be consistent with the prompt and regular administration of Justice, there shall be established at Rangoon and Moulmein a Court to be presided over by a Barrister or Advocate of not less than live years' standing, with full powers of Civil and Criminal Jurisdiction, analogous to those now exercised by the Recorders of Prince of Wales' Island and Singapore, with the exception of the power to try cases in which European British Subjects are charged with capital offences: and whereas it is expedient to make provision for the establishment of such Court, and of a similar Court for the Town of Akyab; and also for the establishment of a Court of Small Causes in each of the said Towns of Akyab, Rangoon, and Moulmein, and to prescribe the Procedure for the said Courts, respectively; It is enacted as follows:
It shall be lawful for the Governor-General in Council to establish Courts of Judicature for the Towns of Akyab, Rangoon, and Moulmein, in British Burmah, or for any of the said Towns, which Courts, when so established, shall be called, respectively, then Court of the Recorder of Akyab, the Court of the Recorder of Rangoon and the Court of the Recorder of Moulmein. Such Courts shall be Courts of Record.
The said Courts, respectively, shall be held before a Judge who shall be called The Recorder thereof, and who shall be appointed by the Governor-General in Council, and shall be a Barrister of not less than five years' standing. Every Recorder appointed under this Act shall hold his Office during the pleasure the Governor-General in Council.
Previously to entering upon the execution of the duties of his Office, every Recorder appointed under this Act shall make or subscribe the following declaration before such Authority or person as the Governor-General in Council may commission to receive the same:
I, A.B., appointed Recorder of ??? do solemnly declare that I will faithfully perform the duties of my Office to the best of my ability, knowledge, and judgment.
The Governor-General in Council may appoint only one Recorder to be the Recorder of the said three Courts, or he may from time to time appoint a separate Recorder for any one, or for any two, of the said Courts.
So long as there shall be only one Recorder of the said three Courts such Recorder shall hold his Court at each of the said three Towns of Akyab, Rangoon, and Moulmein at stated periods. He shall hold his Court in Rangoon at suet times as may be necessary; in Moulmein at least once in every three months; and in Akyab at least once in every four months.
The Recorder shall, on or before the 1st day of January in each every year, or at such other convenient times as the Chief Commissioner of British Burmah shall direct, notify in the Official Gazettes of the Towns in which the Court is to be held, the days on which fee intends to hold his Court at the said Towns, respectively, during the then next ensuing twelve months: and a copy of such Notification shall be stuck up in a conspicuous part of the Court Houses in the said Towns, respectively.
If the Recorder shall he unable to hold his Court at the time and place fixed an any Notification issued under the last preceding Section, he shall fix another period for holding his Court at such place, and shall publish notice of the same in the same manner, so far as circumstances will permit, in which Notification under the said Section is directed to be published.
Notwithstanding anything in Sections VI and VII of this Act contained, it shall be lawful for the Recorder to hold his Court at times other than those notified, as provided in the said Sections, when for any good and sufficient reason it shall appear to him necessary and proper to do so.
Whenever there shall be one Recorder for any two only of the said three Courts, the provisions contained in Sections VI, VII, and VIII of this Act shall be applied, so far as the same may be applicable, in respect of the sittings to be held by such Recorder within the Towns of the Courts of which he is Recorder.
The Recorders appointed under this Act shall have and exercise Civil Jurisdiction within such local limits, in the said Towns of which they are respectively the Recorders and in the neighbourhood thereof, as may from time to time be fixed by the Chief Commissioner of British Burmah, with the approval of the Governor-General in Council; and the limits so fixed shall be published in the Official Gazettes of the said Towns.
Proviso as to alteration of local limits. Provided that it shall be lawful for the said Chief Commissioner, with such approval as aforesaid, as often as he, shall think proper, to vary or alter the limits so fixed: and, save as in this Act provided, no Court other than the Recorder's Court shall have or exercise any Civil Jurisdiction whatever, within the limits for the time being fixed as aforesaid.
The Recorders appointed under this Act shall receive, try and determine suits of every description, if in the case of suits for land or other immoveable property such land or property shall be situate, or if in all other cases the cause of action shall have arisen, or the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain, within the local limits of the ordinary Jurisdiction of their respective Courts.
Proviso. Provided that the Recorders shall not take cognizance of any suit, the cognizance of which, by the ordinary Civil Courts in British India not established by Royal Charter, is barred by any Act of Parliament, Regulation or Act of the Governor-General of India in Council.
It shall be lawful for the Chief Commissioner to direct the transfer to any Recorder's Court, of any case which shall have been instituted in any Court in British Burmah other than a Recorder's Court.
Such cases how to be dealt with. Every case so transferred shall he tried and determined by the Recorder to whose Court it is transferred, in the same manner, and under the same rules as to procedure, and in all other respects, as if the Recorder had originally had Jurisdiction in the case, and the case had originally been instituted before him.
A Recorder, who is the Recorder of more Courts than one, shall, while sitting in any one of the Courts of which he is Recorder, ordinarily try no suits except such as shall have been instituted in such Court, or shall have been transferred to it by the Chief Commissioner as hereinbefore provided: but such Recorder may, if he think proper, try any suit instituted in any other of the said Courts of which he is Recorder, if the parties thereto shall join in an application to him (which shall be in writing, signed by all the parties to the suit or their agents) so to try the same.
A separate seal shall be made under the direction of the Governor-General in Council for each of the said Courts, and all summonses, orders, and other process issuing out of the said Courts, respectively, shall be sealed or stamped with the seal of the Court issuing the same. The said seal shall be delivered to and kept in the custody of the Recorder; but during any absence of the Recorder, or in case of the vacancy of the Office of Recorder, the same shall be delivered to and kept in the custody of the Registrar of the Court appointed as is hereinafter provided; and if there be no Registrar, then it, shall be delivered to and kept in the custody of the Deputy Commissioner.
It shall be lawful for the Recorder of any Court or Courts established under this Act, from time to time, and subject to any rules and restrictions which may be prescribed by the Governor-General in Council, to appoint such and so many Clerks and other Ministerial Officers as shall be found necessary for the administration of Justice by the said Recorder, in such Court or Courts respectively, and the due execution of the powers and authorities given to him by this Act; and every Clerk and Officer appointed as aforesaid shall be liable to dismissal by order of the Recorder of the Court to which he is appointed: provided that no person shall be removed from any Office, the salary of which is one hundred Rupees per mensem or upwards, without the sanction of the Chief Commissioner.
No person shall be permitted to appear or act as the Advocate of any suitor in any Court held under this Act, in any action or suit, or touching any matter whatever, unless such person shall have been previously licensed by the Recorder of such Court, to act for the suitors of such Court generally, or specially for the particular occasion; and it shall be lawful for the Recorder of every Court held under this Act, to make rules for the qualifications and admission of proper persons to act as Advocates in such Court.
Saving of agent, for Secretary of State, & c. Provided that nothing in this Section contained shall be deemed to prevent any person from appearing or acting as the agent for the Secretary of State for India in Council, or to prevent any suitor from appearing, pleading, or acting, on his own behalf, or on behalf of a co. suitor.
And of Advocates, & c. of High Courts. Provided also that any person, who for the time being is an Advocate, Vakeel, or Attorney-at-law of any of the High Courts of Judicature in India, shall be entitled without any license to act as an Advocate for any suitor in any of the said Courts; and that any person for the time being licensed to act generally in any one of the said Courts, shall without further license be also entitled to act generally in any other of the said Courts.
The Recorder of any Court may, for any sufficient reason, withdraw or vacate any license which shall at any time be granted by such Recorder to any person, to act generally or specially as an Advocate under this Act.
The fees to be received by any Advocate, whether general or special, licensed under this Act, or entitled to act as an Advocate for another person in any of the said Courts without a license, under Section XVI of this Act, shall at all times be subject to the control and taxation of the Recorder of the Court having Jurisdiction in the casein respect of which such fees are payable, and no fees shall be recoverable by any Advocates except such fees as shall have been allowed by the Recorder on taxation.
It shall be lawful for the Recorder of any Court or Courts established under this Act, to make and issue rules to regulate the service and execution of the processes of the Court or Courts, within the territorial limits of his Jurisdiction, and also to settle a table of fees to be allowed to the persons employed in such service or execution, and from time to time to alter any such rule or table, and the rules so made and the tables so issued shall be used and observed in the said Court or Courts; provided that such rules and tables be not inconsistent with the provisions of any law in force, and shall, before they are issued, have received the sanction of the Chief Commissioner.
Publication of same. All such rules and tables shall be published in the Official Gazettes of the said Towns, and shall thenceforth have the force of law until repealed or over-ruled by any Act of the Legislature, or by any rule or table subsequently issued and published with the sanction and in the manner aforesaid.
Save as in this Act otherwise provided, the proceedings in Civil suits of every description between party and party brought in, any Court established under this Act, shall be regulated by Act VIII of 1859 (the Code of Civil Procedure), as amended by Act XXIII of 1861, avid by any other Act or Acts that may hereafter be passed for that purpose.
In all suits cognizable by any Court held under this Act, all questions as well of tact as of law or equity shall be dealt with and determined according to the law administered by the High Court of Judicature at Fort William in Bengal, in the exercise of its Ordinary Original Civil Jurisdiction.
Saving of certain cases. Provided that this Section shall not apply to any case heard and determined by any Court held under this Act, in which a native of British India is a defendant, and in which any question relating to marriage, inheritance, or succession shall be involved; but every such case, in so far as such question is concerned, shall be determined by the law or usage which would have been applied thereto, if such question had arisen in any other Court in British Burmah than a Court held under this Act.
If in any suit, any question of law, or usage having the force of law, or the construction of a document affecting the merits of the decision, shall arise, on which the Recorder shall entertain any doubt, the Recorder may, either of his own motion, or on the application of either of the parties to the suit, draw up a statement of the case, and submit such statement, with his own opinion, for the decision of the High Court of Judicature at Port William in Bengal.
The Recorder may proceed in the case, notwithstanding a reference to the said High Court, and may pass a decree contingent upon the opinion of the High Court on the point referred; but no execution shall be issued in any case in which a reference shall be made to the High Court, until the receipt of the order of that Court.
Cases referred for the opinion of the High Court shall be dealt with by a bench of two or more Judges of that Court.
The parties to the case may appear and be heard in the High Court in person, or by an Advocate or Pleader; and the High Court, when it has heard and considered the case, shall transmit a copy of its judgment, under the seal of the Court and the signature of the proper Officer of the Court, to the Recorder, who shall, of the receipt thereof, proceed to dispose of the case conformably to the decision of the High Court.
Costs, if any, consequent on the reference of a case for the opinion of the High Court, shall be costs in the suit.
In all suits heard and determined by a Recorder under this Act, in which the amount or value of the suit shall exceed Rupees three thousand, and be less than Rupees ten thousand, an appeal shall lie to the High Court of Judicature at Fort William in Bengal, subject to the rules contained in the said Code of Civil Procedure regarding regular appeals.
It shall be competent to the Recorder, if he shall think fit, to grant a new trial in any suit tried by him, if applied for within three months from the date of the decision if the suit relate to any land or other immoveable property and in all other cases if applied for within thirty days from the date of the decision.
And review of judgment. Provided that nothing hereinbefore contained shall interfere with the power of the Recorder to allow a review of judgment, under the Code of Civil Procedure, if such review be applied for within the period allowed by the said Code for making such applications.
Security from applicant for either. Provided also that, in any case in which the Recorder may think it necessary to do so, he may before granting a new trial, or a review, require the party applying for the same to give sufficient security for the due compliance with the terms of the decree or order which it is sought to set aside or review.
All cases and proceedings arising under Act XIX of 1841 (for protection of moveable and immoveable property against wrongful possession in cases of successions) Act XXXV of 1868 (to make better provision for the care of the Estates of Lunatics not subject to the Jurisdiction of the Supreme Courts of Judicature), Act XL of 1858 (for making better provision for the care of the persons and property of Minors in the Presidency of Fort William in Bengal) as amended by Act IX of 1861 (to amend law-relating to Minors), or Act XXVII of 1860 (for facilitating the collection of debts on successions, and for the security, of parties paying debts to the representatives of deceased persons), may be received and disposed of by the Recorder of any Court established under this Act, subject always to all the rules and provisions as to Jurisdiction and otherwise in the said Acts contained respectively.
And his orders in such cases not open to appeal. Orders passed by the Recorder in cases arising under the said Acts shall not be open to appeal, but the parties shall be at liberty to contest such orders in a regular suit.
No other Court to deal therewith, within the jurisdiction of Recorder. No Court, other than the Recorder's Court shall, within the local limits of the Jurisdiction of such Recorder's Court, receive or deal with any case or proceeding arising under any of the Acts mentioned in this Section.
For the trial of Civil suits under this Act, the Recorder may constitute one or more persons Assessor or Assessors of the Court. Such person or persons shall attend during the trial of the suit, and shall deliver his or their opinion or opinions in writing, to be recorded on the proceedings. But the decision of the case shall rest with the Recorder. No Officer of the Recorder's Court shall be appointed an Assessor under this Section, but this prohibition shall not extend to any other public Officer.
It shall be lawful for the Governor-General in Council to appoint, to each or any of the Recorder's Courts established under this Act, an Officer who shall be called the Registrar of the Court to which he shall be appointed.
The Registrar of the Recorder's Court shall be the Chief Ministerial Officer of the Court, and shall, subject to the provisions in the next following Section contained, receive all plaints presented to the Court; and in the absence of the Recorder, shall issue notice of suit to the defendants; receive any documents which the parties may wish to put in; and issue process for the attendance of their witnesses: he shall also keep lists of all causes coming on for trial, and shall fix such days for their being heard respectively, as may seem to him fit, having regard to the period appointed for the Recorder's sittings.
If the Registrar shall be of opinion that any plaint presented to the Court is defective in any of the particulars mentioned in Section 28, Section 29, Section 30, Section 31, or Section 32, of the Code of Civil Procedure, he shall not reject the plaint, but shall point out to the plaintiff wherein the plaint is defective, and shall with as little delay as possible forward the plaint to the Recorder of the Court for his orders, together with any statement which the plaintiff may think proper to make; and such plaint shall be dealt with as the Recorder shall order.
Proviso. Provided always that, if the defect in the plaint is capable of being cured under any of the said Sections, and the plaintiff shall be willing to amend it, it shall not be necessary for the Registrar to send the plaint to the Recorder, but such amendment may thereupon be made.
The Registrar shall also receive applications for the execution of decrees passed by the Recorder of the Court of which he is the Registrar, and subject to any orders which he may receive from the Recorder, shall execute such decrees in the same manner as the Recorder may execute them. No appeal shall he from any order passed by the Registrar under this Section; but the Recorder may, of his own motion, reverse or modify any such order whenever he shall think it necessary to do so.
The Registrar shall have the powers of a Small Cause Court Judge in suits of the nature of those described in Act XLII of 1860 (for the establishment of Courts of Small Causes beyond the local limits of the Jurisdiction of the Supreme Courts of Judicature established by Royal Charter), arising within the limits of the Jurisdiction of the Court of which he is the Registrar, provided that the amount or value of the claim shall not exceed two hundred Rupees, but he shall exercise such powers subject to the general control of the Recorder.
And may be invested by Governor-General with higher powers. The Governor-General in Council may invest any Registrar appointed under this Act, with Jurisdiction to hear and determine suits of the nature cognizable by him as a Small Cause Court Judge under this Section which the amount or value of the claim does not exceed five hundred Rupees.
The suits cognizable by the Registrar under the last preceding Section shall be set down for hearing before such Registrar, and he shall hear and determine such suits, and execute the decrees made therein, in such manner as is prescribed in the said Act XLII of 1860; and subject to such rules as to procedure and otherwise, in all respects, as are in the said Act contained.
Transfer from Registrar's to Recorder's File. Provided that the Recorder, whenever he thinks proper, may transfer to his own file any suits on the file of the Registrar, and may hear and determine the same, subject to the rules as to procedure and otherwise hereinbefore mentioned.
No appeal shall lie from any order or decision made or passed by the Registrar, in any case heard or disposed of by him under the last preceding Section; but in any case in which the Registrar shall entertain any doubt upon any question of law, or usage having the force of law, or the construction of a document affecting the merits of the decision, he shall be at liberty to state a case for the opinion of the Recorder, in like manner as the Recorder may, under Section XXII of this Act, state a case for the opinion of the High Court of Judicature at Fort William in Bengal;
Rules applicable to such references. and all the rules and provisions hereinbefore contained, relative to the stating of a case by the Recorder, shall apply mutatis mutandis to the stating of a case by the Registrar, so far as the same are applicable.
It shall be lawful for the Recorder to refer to the Registrar of his Court any suit, not falling within the description of suits contained in Act XLII of 1860, which shall be instituted in the Court of such Recorder, and the amount or value of the property in dispute in which shall not exceed one hundred Rupees. Every suit so referred to the Registrar shall be heard and determined, and the decree made shall be executed, by him, under the same rules as to procedure and otherwise as are applicable to suits tried by the Recorder. In such suits the Registrar shall have no power to state a case to the High Court, or to the Recorder; but an appeal shall lie on questions of law and of fact, from the Registrar's decision to the Recorder, under the rules for regular appeals contained in the Code of Civil Procedure. The decision on the appeal shall be final;
Reference to High Court. but the Recorder shall be at liberty to state a question of law, or usage having the force of law, or the construction of a document affecting the merits of the decision, for the opinion of the High Court, in the same manner as in cases originally tried by himself.
In all suits heard and determined by a Recorder under this Act in which the sum or matter at issue is Rupees ten thousand or upwards, or in which the judgment, decree, or order shall involve, directly or indirectly, any claim, demand, or question, to or respecting property of the value of Rupees ten thousand or upwards, an appeal shall lie to Her Majesty in Council, subject to the rules and orders for the time being in force regarding appeals to Her Majesty in Council, from decisions of the High. Court of Judicature at Port William in Bengal, in the exercise of its Ordinary Original Civil Jurisdiction.
The Recorder shall exercise all the powers, of a Court of Session, as defined in the Code of Criminal Procedure, within the territorial limits of the Civil Jurisdiction of the Court or Courts of which he is Recorder; and shall at the place or places where, such Court or Courts are held, hold. Gaol deliveries at convenient periods, of which due notice shall be given in the manner prescribed in Sections VI and VII of this Act, for the trial of all persons charged with offences punishable under the Indian Penal Code, who may be committed to take their trial before his Court as a Court of Session. Provided that the Recorder shall not have power to try any European British subject charged with an offence punishable with death under the said Code.
Proviso as to European British subjects charged with offences punishable with death. The commitment of any European British subject charged with any such offence shall be made to the High Court of Fort William in Bengal. In all other cases, the commitments made within the limits of the Jurisdiction of any Recorder's Court, for offences punishable under the Indian Penal Code, shall be made to that Court.
If any European British subject shall be charged in British Burmah with any offence (other than an offence punishable with death under the Indian Penal Code), which a Justice of the Peace shall not be competent to punish, and there shall be sufficient grounds for committing him for trial, such European British subject shall be committed to take his trial before the Recorder, and shall be tried by the Recorder of the Court held within the Division of British Burrnah in which either such European British subject shall have been arrested, or in which the offence with which he is charged shall have been committed; that is to say before the Recorder at Rangoon if the arrest took place or the offence were committed in Pegu; before the Recorder at Akyab if the arrest took place or the offence were committed in Arracan; and before the Recorder at Moulmein if the arrest took place or the offence were committed in the Tenasserim Provinces.
The proceedings on trials held by the Recorder as a Court of Session under this Act shall be regulated by the Code of Criminal Procedure, and shall be subject to all the provisions of this Act, in so far as the same may be found applicable.
If on any trial, sentence of death shall be passed by the Recorder, such sentence shall not be carried into execution until it shall have been confirmed by the Chief Commissioner. It shall be lawful for the Chief Commissioner, in any case in which it shall seem proper to him so to do, to commute a sentence of death to a sentence of transportation for life, or for any shorter period not less than seven years.
No appeal shall lie from any order or sentence passed by the Recorder in any Criminal case. But it shall be at the discretion of the Recorder to reserve any point or points of law for the opinion of the said High Court.
On such point or points of law being so reserved, as in the last preceding Section mentioned, or on its being certified by the Advocate General at Port William that, in his judgment there is an error in the decision of a point or points of law decided by the Recorder, or that a point or points of law which has or have been decided by the said Recorder should be further considered, the said High Court shall have full power and authority to review the, case, or such part of it as may be necessary, and finally determine such point or points of law; and thereupon to alter the sentence passed by the Recorder, and to pass such judgment and sentence as to the said High Court shall seem right.
The Stamp Duties prescribed by Schedule B annexed to Act X of 1862 (to consolidate and amend the law relating to Stamp Duties), for Instruments and Writings in the Sudder Court, shall be chargeable on Instruments and Writings in the Courts of the Recorders established under this Act, if the amount or value of the claim exceed one thousand Rupees, or if the case be an-appeal. The foregoing limitation as to amount shall not extend to petitions of plaint. For such petitions, whether the suit be tried by the Recorder or the Registrar of the Court, and for Certificates granted under Act XXVII of 1860, the Duty prescribed by the said Schedule B shall be chargeable. For copies of decrees in suits it which the amount or value of the claim does not exceed one thousand Rupees, as well as for copies of judgments and orders, the same Duty shall be chargeable as prescribed by the said Schedule B for copies of decrees, judgments, and orders passed or made by a Court below the Sudder Court. On Instruuionts and Writings in all other cases, as well in the Recorders' Courts, as in the Courts of the Registrars in cases cognizable by those Officers, on which a Duty of eight annas is prescribed by the said Schedule B, the Duty chargeable shall be eight annas.
The Commissioner of the Division within which the said Town of Akyab, Rangoon, or Moulmein, is situated may sit with the Recorder in the trial and hearing of any Civil or Criminal case arising within the limits of his Division; and may record his opinion in any case in which he may so sit.
If there shall for the time being; be no Recorder, or if the Recorder of any of the said Courts shall at any time, from sickness, or from being absent on leave, or other cause, be unable to attend to the duties of his Office, it shall be lawful for the Commissioner of the Town wherein such Court is situate to sit in such Court; and to exercise all the powers vested by this Act in the Recorder, but subject to all the rules, provisions, and limitations, herein prescribed and declared. Provided that no Commissioner shall act as Recorder, or exercise any authority under this Section, without the sanction of the Chief Commissioner first obtained.
The Recorder shall keep such Registers, and Books and Accounts, and submit to the Chief Commissioner such statements and returns of the work done in his Court, on the Civil and Criminal sides, as may be prescribed by the said Chief Commissioner, with the approval of the Governor-General in Council. The Recorder shall also comply with such requisitions as may be made by the Governor-General in Council, or by the Chief Commissioner, for records.
The word Barrister in this Act shall be deemed to include Barristers of,England or Ireland; or members of the Faculty of Advocates in Scotland; or Advocates of any High Court, or Colonial Supreme Court, authorized by Royal Charter to admit Advocates.