Best, J.:— held that Sec. 37 of Act XV of 1882 (Secs. 37, 38 of Act I of 1895) under which the Judges acted, after declaring that every decree and order of the Small Cause Court in a suit shall be final and conclusive “save as is herein specially provided,” adds that the Court may, on application of either party, made within eight days from the date of the decree or order, in any suit, 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 language seemed to mean that though the party was not entitled to appeal as of right, the Court might, if it thought fit, reconsider any decree or order with all the powers of an ordinary Appellate Court. In Hassanbho Visram v. The British India Steam Navigation Company (2), the High Court refused to interfere in an application for a rehearing of a suit already heard and decided by a Judge of the Small Cause Court, where the evidence was of a conflicting character, and was not such as to justify a distinct opinion that the Judge of the Small Cause Court was wrong in its decision.
Mr. Jackson in support of the rule. The application in this case was made on behalf of the Defendant against whom a decree had been passed. It was made in the form of an appeal against the decision of the Fourth Judge and on grounds which related to questions of appreciation of evidence. In their judgment the Full Bench dealt with the case exactly as an Appellate Court might have treated it. This the Full Bench could not do. See Sadasook Kambir Chund v. Kannaya . The view taken by the majority of the Judges in that case was that the Full Bench of the Presidency Small Cause Court had transgressed the limit of the jurisdiction given by Act XV of 1882, Sec. 37, as the case was one on which different minds might not unreasonably have come to different conclusions.
An order for a new trial is unnecessary as upon the admitted facts the Plaintiffs are entitled to judgment. See Johnson v. Credit Lyonnais (3).
Sale, J.:— This application raises the question as to whether a decree by two Judges of the Small Cause Court, dated the 17th of April 1896, was made in excess of the jurisdiction of the Court and if so, as to what other order ought now to be made.
The Plaintiffs in this suit are Messrs Sasoon & Co., and the object of the suit was to recover a sum paid by them as duly on goods sold to the Defendant. The cause of action is thus stated in the plaint:
(1) That the Defendant entered into a contract in Calcutta with Plaintiffs on the 17th September 1894 for purchase of certain bales of dhooties.
That the Defendants have taken delivery of the goods and paid Plaintiffs the contract value of the goods, but have failed to pay the amount of duty of the goods, which were legally payable by the Defendants and which Plaintiffs are entitled to recover back from Defendants, having to meet the same to get the dhooties delivered and passed out from the Custom House authority. The defence set up was as follows:—“Admit contract, deny that the Defendant is liable to pay any duty if the Plaintiffs had exercised ordinary diligence.” The goods arrived before the Indian Tariff Act came into operation. The payment of the money claimed in suit seems never to have been disputed but the defence, in substance, was that by the exercise of ordinary diligence the payment of the Tariff duty might have been avoided, and, therefore, the Plaintiffs were not entitled to recover this same from the Defendant.
At the first hearing, which took place before the learned Fourth Judge of the Small Cause Court only one witness was called, and that wan by the Plaintiffs. The Defendant called no evidence at all in support of their defence, and the Fourth Judge accordingly made a decree in favour of the Plaintiffs, for the full amount of their claim The Defendant then filed an application for a new trial, the ground set forth in the application being chiefly concerned with the questions of evidence.
On the 17th April, 1896, a Bench was framed for the hearing of the new trial consisting of the learned Chief Judge and the learned Fourth Judge. They set aside the decree and dismissed the suit. A further application was made by the Plaintiffs for a new trial in respect of the decree made on the 17th April, 1896, but that application was dismissed. The main question, which has been discussed before me, is, as to whether the learned Judges of the Small Cause Court exercised a jurisdiction, which was not vested in them in reversing the original decree, and dismissing suit, the ground alleged being, that in so doing they exercised the powers of an Appellate Court, and had exceeded the powers given them under Sec. 38 of the Small Cause Courts Act.
Now, the facts of the case are conveniently set forth in the judgment of the learned Chief Judge delivered on the occasion of the last application for new trial.
The learned Judge says the facts are these:—“The Plaintiffs entered into a contract for the sale to Defendant of goods to arrive, delivery to be taken within 60 days from the date of arrival, i.e, the date when a vessel is entered at the Customs House,” The goods arrived and the vessel was entered at the Customs House on Saturday, the 22nd December, 1894.
Now, Sec. 38 of the Presidency Small Cause Courts Act provides that “where a suit has been contested, the Small Cause Court may, on the application of either party, made within 8 days from the date of the decree or order of the suit (not being a decree passed under Sac. 522 of C.P.C) order a new trial to be held, or alter, set aside, or reverse the decree, or order upon such terms as ??? thinks reasonable, and may, in the meantime, stay the proceedings.”
Now, I think it is clear, reading Sec. 38 with the preceding Sec. 37, that it was not intended that the Court in exercising the powers conferred upon it by Sec. 38, should exercise the powers and jurisdiction of a Court of Appeal. Sec. 37 provides that, “save as otherwise provided by this chapter, or by any other enactment for the time being in force every decree and order of the Small Cause Court in a suit shall be final and conclusive.”
It seems to me that it is impossible to give any reasonable meaning of the provision declaring that every decree of the Small Cause Court should be final and conclusive, except as provided by this chapter, except by the view that the legislature did not intend that each and every decree and order of the Small Cause Court should be subject to appeal. A similar view of these sections was taken by the majority of the Bench of the Madras High Court in the case of Sadasook Kambir Ghund v. Kannya and turning to page 113 of MacEwen's Small Cause Court Practice, ??? would appear that the practice of the Small Cause Court certainly has not been to deal with applicants for a new trial under the powers ordinarily exercised by a Revisional Court: The learned author of the Small Cause Court Practice states several grounds upon which the Small Cause Court have granted new trials, and it is obvious from the description of those grounds that the jurisdiction exercised has been the jurisdiction of a Revisional Court.
When the question was one of evidence, the judgment of the Original Court being considered only liable to be reversed, and a new trial directed, when the judgment was manifestly against the weight of evidence.
Now, turning to the facts of the case which are of an exceedingly simple description there can be no doubt that in setting aside the original decree made in this suit the learned Judges proceeded upon the view that the first Court had taken an incorrect view of the evidence, or, had wrongly construed the contract in suit.
It is obvious, I think, that on the evidence as it was given on the occasion of the first trial, it would be impossible for any Court to disturb the judgment upon any ground which would be open to a Revisional Court, and I think there can be no doubt that the learned Judges exercised the functions of an Appeal Court in setting aside the original decree and dismissing the suit. Therefore it would follow that in so doing they had exceeded the jurisdiction vested in them by Sec. 38 of the Act. The next question is as to what is the proper order which, under the circumstances, this Court should make.
There is, I have already pointed out, no dispute as to the facts. The ground upon which the learned officiating Chief Judge thought that the original decree was wrong, is thus stated by him, “But here I think there was a duty cast on the Plaintiffs under the contract to clear the goods on arrival, for the Defendant was entitled to take delivery at any time within 90 days from the date of arrival, and, therefore, the Plaintiffs should have had the goods cleared and ready for delivery all that time.”
The learned Second Judge also thought that the Plaintiffs ought to have cleared the ground on the day when the steamer was entered at the Custom House. But apparently he does nob base this duty on a construction of the contract. At page 6 he says, “If the sailors had cared to do so, the goods would have been cleared on the day of their arrival, and the payment of duty avoided;” in the latter portion of this judgment there is this passage:—“it was obviously the duty of the Plaintiffs in the first instance to take charge of the goods and clear them from the Customs House. It was all the more necessary, therefore, that as ordinary men of business they ought to have cleared the goods on the day of their arrival.”
A good deal is said by both the learned Judges with reference to the omissions made by the witness called by the Plaintiffs that the members of the Plaintiffs' firm being of the Jewish faith, their business closed on a Saturday, and there was no evidence that the Defendant had any notice of this practice on the part of the Plaintiffs.
It appears to me that this is a matter of very small importance, it is only one of the circumstances which had to be taken into consideration in determining the question, as to whether the Plaintiffs in failing to clear the goods on the first day of their arrival in port had failed ??? exercise due diligence in discharging this duty, under the contract. It seems to me that the learned Judges in dealing with the case overlooked the fact that the Plaintiffs would be entitled to a reasonable time for the purpose of clearing the goods from the Customs House.
Nor would there be any duty cast upon the Plaintiff to clear the goods on the first day of their arrival, unless, either there was an express agreement to that effect in the contract, or that the evidence showed that on their failing so to do they had been guilty of unreasonable delay. Now, it is quite obvious, as far as evidence went, there was nothing upon which there could be any finding that there had been any Improper or unreasonable delay in clearing the goods. Nor do I think that the provision that the Defendant had 90 days from the arrival to take delivery of the goods necessarily imply that the Plaintiffs had undertaken to clear the goods on the first day of their arrival in port. To hold that there is such a duty upon the importers apart from an express agreement, would, I think, be doing a serious in justice and apart from any evidence as to, what is, or what is not, a reasonable time within which the goods should be cleared from the Customs House, I should have thought in common experience that it would be extremely Improbable under any circumstances that the goods could be cleared from the Customs House on the first day of their arrival.
It seems to me on the evidence that the original decree was quite correct, and as no good would be served, having regard to the facts, that there is no dispute as to facts, by now ordering a new trial.
I think the order which I ought to make is that the decree of the learned ??? Chief Judge and the learned Judge of the Small Cause Court of the 17th April 1896 be set aside, and that the original decree of the learned ??? Judge be restored.
The costs in the suit Including the present application will abide the result, and will be dealt with by the Lower Court.
Messrs Orr., Robertson, Attorneys for the Petitioners.
Messrs Manuel and Sen, Attorneys for the Opposite Party.
(Reported K.N.S)