Muhammad Suleman Khan And Ors. vs Fatima on 17 November, 1886

Allahabad High Court
Muhammad Suleman Khan And Ors. vs Fatima on 17 November, 1886
Equivalent citations: (1887) ILR 9 All 104
Author: K John Edge
Bench: J Edge, Kt., Straight, Oldfield, Brodhurst, Tyrrell


John Edge, Kt., C.J.

1. I consider that under Section 15 of the Charter Act it is “competent to the High Court, in the exercise of its power of superintendence, to direct a subordinate Court to do its duty or to abstain from taking action in matters of which it has no cognizance; but the High Court is not competent, in the exercise of this authority, to interfere with and set right the orders of a subordinate Court on the ground that the order of the subordinate Court has proceeded on an error of law or an error of fact.”–Tej Ram v. Harsukh I. L. R., 1 All., 101, at pp. 104-105.

2. In saying that the High Court has this power to direct a subordinate Judge to do his duty, I do not limit the power to cases in which the subordinate Judge declines to hear or determine a suit or application within his jurisdiction. I prefer not to use the words “administrative authority” or “judicial powers” found in the Full Bench judgment in Tej Ram v. Harsukh I. L. R., 1 All., 101, at pp. 104-105, or “judicial superintendence” in the question before the Court, as without giving exhaustive definitions of the words, which I might fail to do, I might, by using them, lead to future difficulty. Bach case must be considered as it arises. I do not consider that the decision of the Lords of the Privy Council in Girdhari Singh v. Hurdeo Narain Singh I. L. R., 3 Ind. App., 230, conflicts with the view above expressed.

3. Although the question as to the powers of the High Court under Section 622 of the Civil Procedure Code is not before us, the case of Badami Kuar v. Dina Rai; I. L. R., 8 All., 111, has been alluded to in argument, and in my opinion an erroneous construction has been put during the argument on the judgment of Sir Comer Petheram in that case. The late Chief Justice was dealing with the case before him, and although he used the words “questions of jurisdiction” in his judgment, he took pains in the last sentence of his judgment to explain his meaning; and it is obvious that he was not then considering the latter words of Section 622, “or to have acted in the exercise of its jurisdiction illegally or with material irregularity, “which in fact did not apply to the case then under consideration. So far as can be seen from the report of the case of Amir Hasan Khan v. Sheo Bakhsh Singh I. L. R., 11 Cal., 6; L. R., 11 Ind. App., 237, it was also one which did not involve the consideration of that portion of the section above quoted.

Straight, J.

3. Looking to the rulings of the Calcutta and Bombay Courts, and to Girdhari Singh v. Hardeo Narain Singh I. L. R., 3 Ind. App., 230, I think that the word “superintendence” used in Section 15, Charter Act, contemplated and now includes powers of a judicial or quasi-judicial character, (sic) part from those conferred on the Court by Section 622 of the Civil procedure Code. At the same time it appears to me that the last-mentioned provision may properly be accepted as indicating the extent to which the Court should ordinarily interfere with the findings of such subordinate tribunals as are invested with exclusive jurisdiction to try and determine all questions of law and fact arising in suits within their exclusive cognizance, and in which their decisions are declared by law to be final. These are the only terms in which I am able to answer this reference.

4. I desire to add that I am glad to hear the interpretation placed by the learned Chief Justice, and, as I understand it, approved by my brother Oldfield, on the remarks of the late Chief Justice in Badami Kuar v. Dina Rai I. L. R., 8 All., 111. This construction goes far to meet the views I expressed in that case, in which my brother Tyrrell concurred, and to give effect to what I have always believed were the intentions of the Legislature as expressed in Section 622 of the Civil Procedure Code.

Oldfield, J.

5. I concur in the opinion expressed by the learned Chief Justice as his answer to this reference, so far as regards Section 15 of 24 and 25 Vic, Clause 104. It appears to me substantially to express the opinion already given by the Full Bench in Tej Ram v. Harsukh I. L. R., 1 All., 101. I have no objection to omitting from the ruling in that case the paragraph which refers to the High Court having “administrative” and not “judicial” powers under Section 15, because the use of words of this kind, which are not capable of very exact definition, is apt to lead to difficulties and doubts.

6. With reference to the observations of the learned Chief Justice upon the ruling of the Full Bench in Badami Kuar v. Dina Rai I. L. R., 8 All. 111, as to Section 622 of the Civil Procedure Code, I was a party to that ruling, and in subscribing to the judgment of the late Chief Justice, I understood it not to exclude cases coming under the last portion, of Section 622, referring to the action of a Court “in the exercise of its jurisdiction illegally or with material irregularity.”

Brodhurst, J.

7. I concur with the learned Chief Justice in his answer to the question which has been referred to us.

Tyrrell, J.

8. I concur in the views expressed by my brother Straight and with the exception of the dictum in the Full Bench judgment in In the matter of the petition of Mathra Parshad I. L. R., 1 All., 296, that “Section 15 of the Charter Act appears to confer administrative authority and not judicial powers,” which may not be of the essence of that judgment, I think that judgment does not necessarily preclude an affirmative answer to the question referred to us, while the terms of the section are sufficiently large to justify such an answer.

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