Byomkes Seth v. Bhut Nath Pal

Mookerjee, J.:— This is an appeal under clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould passed in the exercise of revisional jurisdiction.

2. A suit for rent was instituted by the appellant in the Court of the first Munsiff at Sealdah in the District of 24-Perganas.

3. The claim was contested and the suit was dismissed. An appeal was thereupon lodged in the Court of the Subordnaba Judge of 24-Perganas. The appeal was heard on the merits and the decision of the trial Court was reversed. Against the decree of the Subordinate Judge two proceedings were instituted in this Court; one was an appeal from Appellate decree; the other was an application for revision, on the basis whereof a Rule was issued by this Court. The common question which was argued before Mr. Justice Newbould in both these proceedings was, whether an appeal lay to the Subordinate, Judge from the decision of the primary Court. It was urged that as the amount claimed did not exceed Rs. 50 and as the suit was decided by a Munsiff who was empowered by the Local Government be exercise final jurisdiction under section 153 of the Bengal Tenancy Act his decision could not be challenged by way of appeal to the Subordinate Judge. Mr. Justice Newbould came to the conclusion that the appeal from Appellate decree presented to him was incompetent, because the Subordinate Judge had not determined by his decree any of the special questions mentioned in section 153 of the Bengal Tenancy Act which would justify an appeal to this Court. In this view, the appeal from Appellate decree was dismissed as incompetent. In the Rule Mr. Justice Newbould came to the conclusion that the decree of the Subordinate Judge must be discharged as made without jurisdiction. His view of the proceedings in the trial Court was that no such special questions had been decided there as would entitle the party aggrieved to maintain the appeal before the lower Appellate Court. From this standpoint, he made the Rule absolute, set aside the decree of the Subordinate Judge and restored the decree of the Court of first instance.

4. The present appeal under the Letters Patent purports to be directed against the decree of dismissal made in the appeal from appellate decree as also against the order for reversal made in the Rule. As regards the decree of dismissal made in the appeal from appellate decree, it is clear that the appellant is not entitled be maintain the appeal. That decree is in his favour and he cannot appeal against a decree in his favour, solely with a view be attack the propriety of the grounds assigned in the judgment in support of that decree. In reality, the appeal under the Letters Patent is directed against the order made in the Rule. A preliminary objection be the appeal has been taken on behalf of the respondent, that the appeal is incompetent by virtue of the amendment made in 1919 in clause 19 of the Letters Patent. The relevant portion of the Letters Patent as amended is in the following terms:

“And we do further ordain that an appeal shall lie to the High Court of Judicature at Fort William in Bengal from a judgment not being an order made in the exercise of revisional jurisdiction) of one Judge of the said High Court.”

5. There can be no doubt that the order made by Mr. Justice Newbould is a judgment within the meaning of clause 15 of the Letters Patent. The question is, is it an order made in the exercise of revisional jurisdiction? If the answer be in the affirmative, no appeal lies under clause 15 of the Letters Patent against such order. On behalf of the appellant, the argument has been advanced that an appeal lies be enable the appellant to show that the order which purports be have been made in the exercise of revisional jurisdiction was made without jurisdiction. We are of opinion that this contention is not well founded.

6. We are not unmindful of the decision of the Judicial Committee in the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debea (1), where the following observation occurs:

“Their Lordships do not think that Mr. Justice Pontifex can be properly treated as having usurped jurisdiction; but if he had, this would have been a valid ground of appeal and they are unable to agree with the Chief Justice that if a Judge of the High Court makes an order under misapprehension of the extent of his jurisdiction, the High Gout has no power by appeal or otherwise to set right such a miscarriage of justice”.

7. This pronouncement was made in 1882, long before the amendment of the Letters Patent in 1919. The berms of the Letters Patent as amended are perfectly clear and we are not prepared to accept the contention of the appellant that the only orders made in the exercise of revisional jurisdiction which are made non-appealable by the Letters Patent are orders made with jurisdiction. The orders which are made non-appealable are, in our opinion, all orders made in the exercise of revisional jurisdiction and an appeal cannot be maintained be best whether an order which purports be have been made in the exercise of revisional jurisdiction was or was not made with out jurisdiction. To adopt the contrary view, would to be substitute the expression “Order made with jurisdiction in the exercise of revisional jurisdiction.” For the expression “Order made in the exercise of revisional Jurisdiction.” We are fortified in this view when we recall the history of the law on the subject.

8. It is well known that before this amendment was made, there had been a considerable divergence of judicial opinion upon the question whether an appeal was allowed under the Letters Patent against orders made in the exercise of revisional jurisdiction. The brood of opinion, which was by no means uniform, in the High Courts of Caloutta and Madras was in favonr of the right of appeal. Reference need be made to the cases, among others, of Shew Prosad Bungshidhur v. Ram Chunder Haribux (2); Debendra Nath Das v. Bibudhendra Mansingh (3), Jalan v. Assaram (4); Peary Loll v. Banamali (5); Baijnath v. Jung Bahadur (6); Chappan v. Moidin Kutti (7); Tuljaram Row v. Alagappa Chettiar (8) and Srinivasa Iyengar v. Ramaswami Chetiiar (9). A contrary view was indicated in the cases of Hiralal v. Bai Asi (10) and Nisar Ali v. Ali Ali (11). It was be remove this divergence of Judicial opinion that the Letters Patent was amended and the amendment gives effect be the opinion that as appeal should not lie from orders made in the exercise of revisional jurisdiction. The order made by Mr. Justice Newbould was unquestionably made in she exercise of revisional jurisdiction; whether he exercised that jurisdiction then he should not have exercised it, is a matter which cannot be investigated by way of an appeal.

9. We may add that reliance was placed upon the decision of this Court in the case of Bandiram Mukerjee v. Purno Chunder (12), to show that when a decree hag been made without jurisdiction, an appeal lies against it, precisely in the same manner as if it had been made with jurisdiction. But this doctrine is of no assistance be the appellant; an appeal lies against a decree made without jurisdiction, because a decree so made possesses all the qualities of a decree under the Code of Civil Procedure. On the other hand the analogy may well be invoked be support the view that an order made in the exercise of revisional jurisdiction is an order so made, even if it has been made without jurisdiction.

10. We are, accordingly, of opinion that the present appeal is incompetent and must be dismissed with costs. Appeal dismissed.