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Bombay High Court
Ismalji Ibrahimji Nagree vs N.C. Macleod on 4 October, 1906
Equivalent citations: (1906) 8 BOMLR 969
Author: L P Russell
Bench: L P Russell, Beaman


Louis P. Russell, Acting C.J.

1. In this case there is no doubt, several interesting questions have been raised.

2. The first is whether the inclusion of Section 622 of the code of Civil Procedure in the Presidency Small Cause Courts Act under the rules framed under Section 9 of that Act is not ultra vires? That is a question which has not been raised before. Another question is whether this Court, under Section 5 Clause (2) of Regulation XXVII has got the power to interfere in all cases tried in the Presidency Small Cause Courts, if this Court is of opinion that the decision of that Court is wrong.

3. Those questions are of great importance, because the practice of this Court for many years has always been to interfere under Section 622.

4. But, in our opinion, it is not necessary for us to be compelled to come to a formal decision upon the above points because we think that upon the merits the defendant is entitled to succeed. There is a good deal of point in Mr. Desai’s argument that the plaintiff should not be permitted to come up to the High Court until all other remedies have been exhausted; and I should certainly say that it appears to me, at all events, that under Section 69 the plaintiff had the remedy, in this case, as the amount is over Rs. 500, of requesting the Small Cause Court to frame a case for the decision of the High Court.

5. It appears further that an application was made to the Full Court for a rule but that was refused.

6. Coming then to deal with the merits it appears that one Ellis had a printing press in the premises of the plaintiff and he had mortgaged the press machinery and stock to the mortgagee who filed a suit against him in the High Court. The mortgagee got Mr. Macleod appointed receiver in the usual way.

7. Now under the order appointing Mr. Macleod as a receiver he was only empowered to take possession of the machinery and the stock on the premises. He was not appointed a manager and had nothing whatever to do with the building or premises themselves.

8. Afterwards appartantly the plaintiff, the landlord, gave notice to quit to Mr. Ellis, the tenant, on the 12th of May 1905. but he never informed Mr. Macleod of that notice. Subsequently no doubt he did give Mr. Macleod notice that he was going to charge him rent from a particular date that he mentioned.

9. It seems to us that Mr. Macleod was not in use and occupation of the premises and so when the notice was given by the plaintiff to Mr. Macleod that he was going to charge rent, his obvious answer to that would be ” I am not in use and occupation of the premises I am merely the receiver of the machinery and the stock kept in the place.”

10. The plaintiff thereupon might have said “If you prevent my getting into my premises, I shall fine an action for trespass against you.” and he might have had a fair chance of success.

11. But instead of doing that he has brought the present suit for rent (which obviously is wrong) and us and occupation, and it seems to me that that is a suit which under the circumstances cannot succeed, and therefore I am of opinion that the rule must be discharged with costs.

Beaman, J.

12. I concour in thinking that this rule should be discharged with costs.

13. I must say for myself that I entertain much doubt whether this Court has any power under Section 622 of the Code of Civil Procedure to go into cases of this kind. That section has been applied, we are told, to Presidency Small Cause Courts by rule purporting to be framed under Section 9, but, when the language of that section is considered, I think that any rules framed under it which have the effect of extending the provisions of Section 622 to the Presidency Small Cause Courts are clearly ultra vires.

14. I understand that it has always been the practice hitherto, or, at any rate, it has been commonly the practice to entertain applications of this kind against decrees of the Presidency Small Cause Courts under Section 622 and
courses curiae so firmly established must of course command respect.

15. I therefore express the doubt which I feel with considerable diffidence being thoroughly alive to the possibility of some considerations having escaped my notice which have hitherto amply justified it.

16. What then this Court’s powers of superintendence and revision over the decrees of Presidency Small Cause Courts may be, whence they are derived and what is their extent, are all questions of the greatest importance which will have on a proper occasion to be determined definitely and with precision.

17. I do not, however, feel called upon to express now any final opinion upon that point because whether we have powers of control under the Charter Act, or whether we take them under Section 622 [assuming that that should eventually prove to be the section under which we are empowered to deal with this case] I think that however ample our powers as a Court of extraordinary jurisdiction may be, they will always be conditioned by the same general principles. One of the most important is that Courts in the exercise of superintending powers will not ordinarily interfere except in cases of grave and otherwise irreparable injustice. Now after hearing the very able argument which has been addressed to us, I entirely agree with my learned brother that the question at issue between the parties a question which was thoroughly gone into and ably adjudicated upon in the Court of Small Causes, was one of so difficult and technical a kind that it is impossible to say that the Court below in disposing of it as it did. was plainly and certainly wrong. I therefore concur in the order proposed by my learned colleague.

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