Dinshaw Iron Works v. Maikhan Adamji And Co.

Beaumont, C.J:—

This is a revision application under s. 115 of the Civil Procedure Code against a decision of the Full Court of the Bombay Small Cause Court.

The facts giving rise to the application are these. Down to December 1937, the defendant-firm, which is called Dinshaw Iron Works, was carried on by two ladies who are the present applicants. On December 1, 1937, they transferred the business to another firm which continued to carry on the business under the former name of Dinshaw Iron Works. The plaintiffs had supplied goods to Dinshaw Iron Works before the transfer, of the business from the present applicants, and they continued to supply goods to the firm thereafter. In the present suit they sue the applicants for the price of goods supplied in March and April, 1940, that is to say, more than two years after the business had been transferred, and their case is that they had no notice of the transfer of the business, and that they are, therefore, entitled to look to the applicants for the discharge of their account, although, in fact, the goods were supplied to the firm after the applicants had ceased to have any connection with it.

The question at issue is whether the plaintiffs had notice of the transfer of the business. The learned trial Judge held that the plaintiffs had such notice. He relied on the evidence of one Gulabchand, who, according to his evidence, was one of the transferees from the applicants, that is to say, a proprietor in the new firm of Dinshaw Iron Works, although, the Full Court seem to have considered him to have been only a mehta of the new firm. Gulabchand's evidence was that he had told the plaintiffs about the transfer and the Judge believed his evidence. The Judge also relied on the cheques signed by Dinshaw Iron Works both before and after the transfer. Before the transfer cheques in favour of the plaintiffs were signed for Dinshaw Iron Works by the applicants, and after the transfer such cheques were signed by another person and bore a stamp upon them “M. Jamshedji and three others”. Those cheques would at least put the plaintiffs upon inquiry as to there having been a change in the personnel of the firm of Dinshaw Iron Works. On that evidence the learned trial Judge held that the plaintiffs had no case against the present applicants, and dismissed the suit.

The Full Court held that it was incumbent on the applicants to give special notice of their having ceased to be responsible to the plaintiffs, and that there was no satisfactory evidence of any such notice. The Court did not refer to the evidence supplied by the cheques; but said that the oral evidence alleged to have been given by the defendants' mehta Gulabchand was not proper notice as it did not emanate from one of the defendants' proprietors. Even if Gulabchand was a mehta only, I am not aware of any rule of law which precludes a mehta, with due authority, from giving notice on behalf of his principal.

However, the first point, which is taken in this revision application, is that the Full Court had no jurisdiction to entertain the matter. Section 37 of the Presidency Small Cause Courts Act provides:—

“Save as otherwise provided by this Chapter … every decree and order of the Small Cause Court in a suit shall be final and conclusive.

Then section 38 provides that where a suit has been contested, the Small Cause Court may, on the application of either party, made within the time limited, order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable. The nature of the powers conferred by that section has been considered in a good many cases. It seems clear, upon reading the two sections together, that s. 38 was not intended to confer a general right of appeal. Section 37 provides that every order of the Court shall be final and conclusive, and the legislature can hardly have intended in the next section to give a right of appeal in every contested suit. Section 38 does not in terms confer a right of appeal upon any party; the right conferred is upon the Court, to be exercised on the application of a party. I agree with the view which has been expressed in a good many cases, and particularly In re Shivlal Padma, that the powers under s. 38 are revisional in character. I accept the view expressed by this Court in Bapuji v. Dastur, that the powers of interference under s. 38 are not limited to the particular matters mentioned in s. 115 of the Civil Procedure Code which confers powers in revision on High Courts. I agree also with the view expressed by this Court in Sonoo Narayan…Applicant; v. Dinkar Jagannath Marathe…Opponent.*, that the revisional powers under section 38 are not limited to points of law. I emphatically do not agree with the view expressed by Mr. Justice Lort-Williams in Baldeodas Lohia v. Balmukund Brijmohan, (at p. 616), that revisional jurisdiction is an expression used in India to distinguish appeals on points of law only from appeals on questions of fact or mixed fact and law, which alone are designated appellate. I have no doubt that Courts exercising revisional powers can differ from the lower Court on questions of fact, unless precluded from so doing by the Statute conferring the jurisdiction. Under section 439 of the Criminal Procedure Code a High Court can interfere on questions of fact, though in practice it seldom does so. Without attempting to define the exact limits of revisional jurisdiction, I should say, broadly speaking, that the Court acts in revision when it interferes with the decision of the lower Court on the ground that there has not been a fair and proper trial, that the order passed is not “according to law”; to use the expression employed in section 25 of the Provincial Small Cause Courts Act, because, for example, there has been some error in procedure, or the Judge has not brought his mind to bear upon the real question. On the other hand, where the Court goes beyond that, and, notwithstanding that there has been a fair and proper trial, interferes with the lower Court's order because it disagrees with the conclusion arrived at, whether on facts or law, then I should say that the Court is exercising a purely appellate jurisdiction.

In the present case, in my view, there was no ground whatever for interfering in revision. The learned trial Judge had heard the case, and arrived at a certain conclusion on the evidence, and there was no reason for suggesting that the trial had not been a proper one. I think, therefore, that the Full Court had no jurisdiction to entertain the application made to it. I may add that if I were sitting in appeal on the decision of the Full Court, which I am not doing, I should have no hesitation in saying that I prefer the decision of the learned trial Judge to that of the Full Court. But, as Mr. Shah has pointed out, this is not a matter with which we can deal in revision under s. 115.

The application is allowed with costs throughout, and the order of the Full Court set aside.

Wassoodew, J.:—I agree.

Application allowed.

Y.V.D