Ram Narain Joshy vs Parmeswar Narain Mahta And Ors. on 20 July, 1897

Calcutta High Court
Ram Narain Joshy vs Parmeswar Narain Mahta And Ors. on 20 July, 1897
Equivalent citations: (1898) ILR 25 Cal 39
Author: T A Stevens
Bench: Trevelyan, Stevens


Trevelyan and Stevens, JJ.

1. In this case an objection has been taken by the learned Counsel for the respondent to the hearing of the appeal. He contends that as the Court in which the appeal was originally filed had no jurisdiction, the value of the appeal being in excess of Rs. 5,000, this Court, in which the same appeal is, by virtue of an order made under Section 25 of the Civil Procedure Code, now pending, cannot hear it. It is with extreme regret that we find ourselves compelled to give effect to this objection.

2. The facts shortly stated are these: Two suits were decided at the same time by the Subordinate Judge of Mozufferpore. This case, which was an appeal from the judgment in one of those suits, was filed on the 3rd of September 1894 in the Court of the District Judge of Tirhoot, The appeal in the other suit was filed here, and has been heard by a Division Bench of this Court. When this appeal was filed in the District Judge’s Court an officer of the Court made the following note: “Filed value of claim is not mentioned in the memorandum, but it appears from the certified copy of the decree filed along with the memorandum that the value of claim amounts to Rs. 9,855. Thus this appeal should be tiled in the High Court.” We may mention here that it is admitted by the learned Counsel for the appellant that as a matter of “fact the subject of the dispute in this appeal was over Rs. 5,000 in value, and that the appeal was filed in the wrong Court. But he contends that it was so filed in consequence of an error which we will refer to hereafter. On the 4th September 1894, that is a day after the appeal was filed, there was an order made by the District Judge in these words: “Admit, as an application will be made for the transfer of this appeal to be tried along with the analogous appeal about to be filed in the High Court. No date need be fixed.” That order was signed by the District Judge and also by Pitamber Chatterjee, the pleader for the appellant, who signed the memorandum of appeal It does not, however, really matter, for the purpose of our decision, whether Pitamber Chatterjee, the pleader for the appellant, at that time knew that the value of the claim really was over Rs. 5,000, and that the District Judge of Tirhoot had no jurisdiction in the matter, because, as we shall presently point out, the question as to how far the mistake made by the appellant is capable of being remedied has already been dealt with by a Division Bench of this Court on an application in this particular appeal. The nest event which happened was that on the 10th January 1895, a Division Bench of this Court issued a rule at the instance of the appellant calling upon the respondent to show cause why this appeal should not he transferred to the file of this Court and be heard and disposed of by this Court with appeal from Original Decree No. 275 of 1894 now pending in this Court and with which it is analogous. The terms of the rule are in accordance with the prayer of the petition of the appellant. The word “transfer” is used. It has been said that if the terms of the Procedure Code had been strictly followed the word ought to have been “withdrawn,” The application could have been made only under one section, namely, Section 25 of the Civil Procedure Code, which authorises the High Court and the District Court to allow the parties to withdraw a suit whether pending in a Court of First Instance or in a Court of Appeal subordinate to such High Court or District Court, as the ease may be, and try the suit itself or transfer it for trial to any other such subordinate Court competent to try the same, It does not matter whether “transfer” was the proper word to use in the rule or not. The meaning of the rule is obvious. It was a rule to show cause why an order should not be made under Section 25 withdrawing the appeal from the lower Court and empowering the High Court to try it. This rule came op for hearing on the 9th August 1895 before a Division Bench consisting of Prinsep and Ghose, JJ. They made the rule absolute, but in their judgment they left it open to the parties at the hearing of the appeal to raise the objection which was then raised before them, and which was to the effect that the District Judge had no jurisdiction to try the appeal. Thus the making of that rule absolute has no effect upon the right of the respondent to raise this objection now.

3. One of the chief difficulties in this case arises from an application which was presented to this Court on the 16th September 1895, and was moved on the 25th November 1895. That application was based upon the fact that the appellant’s Vakil, Babu Lalmohan Dass, for the first time on the 9th August 1895, when the rule came on for hearing, discovered that the appeal ought to have been valued at more than Rs. 5,000; and the petition goes on to submit that “the facts and circumstances stated above constitute sufficient cause for admitting the said appeal after the prescribed period,” and asks “that the aforesaid memorandum of appeal (that is the one filed in the District Judge’s Court) be admitted in this Court and be duly registered, or such further order made as to the Court may seem meet.” That really, as far as we can see, is an application made under Section 5 of the Limitation Act for the admission of the appeal after time, but with this difference, that instead of a fresh memorandum of appeal being put in, it is asked that the same memorandum of appeal be allowed to be used in this Court. Upon that application a rule was issued calling upon the other side to show cause why the memorandum of appeal should not be registered as an appeal to this Court. The rule came on for hearing on the 19th January 1897 before a Division Bench consisting of Beverley and Ameer Ali, JJ. They discharged the rule. First of all they say in their judgment: “This is not an application for the admission of an appeal after time which is being presented in proper form to this Court. There is no fresh memorandum of appeal now before us. What we are asked to do is to treat an appeal which was presented to the District Judge and which was called up for trial to this Court, as an appeal to this Court direct, and that in the face of the order of the Division Bench which called up the appeal for hearing. We are of opinion that we cannot do that. The appeal as presented to the District Judge has been called up to this Court, and is now an appeal to this Court numbered 304 of 1895, and we are at a loss to see how we can interfere in any way with the order made as regards that appeal.” The learned Judges then consider that if they were to make an order in terms of the application, they would be interfering with the order which transferred to this Court an appeal pending in another Court. Their reason, as we understand it, was that there could not be on the file of the same Court two appeals from the same judgment, one on the footing that this Court had jurisdiction, and the other on the footing that the other Court had no jurisdiction. That, as far as we understand it, is what the learned Judges meant. They go on to say that even supposing that a fresh memorandum of appeal had been presented, they could not admit it because of the delay in its presentation, and they give other reasons, that is, they treat the application as if it were one under Section 5 of the Limitation Act, and as if the memorandum of appeal was ready to be riled, Whether the learned pleader offered to file a fresh memorandum of appeal it does not appear; but the learned Judges go into the question whether, if a fresh memorandum was filed, it was competent to them to admit the appeal, and, considering that no good reason was shown for the delay, they come to the conclusion that they could not admit it, and they discharge the rule, These are all the facts which are now before us.

4. On the appeal being called on, Mr. Bonnerjee for the respondent contended that we have no power to hear it. There is no doubt that this Court can only hear appeals which ate properly before it, and the only way in which appeal can be brought before it are by a memorandum of appeal being filed in the Court in accordance with the provisions of the Civil Procedure Code, or when an appeal has been brought up to the file of this Court by an order made by this Court in the exercise of its powers under Section 25 of the Civil Procedure Code. So far as Section 25 is concerned, there can be no doubt that we cannot help the appellant. When a case is transferred to this Court under that Section, it must be heard subject to all the objections which could be taken if the case had been heard in the Court from which it has been transferred. The jurisdiction given by Section 25 does not clothe this Court with greater powers than that which the lower Court had so far as the question of jurisdiction is concerned. If the lower Court had no jurisdiction to try the case, be the defect in jurisdiction with reference to the value or with reference to the situation of the property in dispute or with regard to any other matter which concerns jurisdiction, this Court could have no jurisdiction. Although the cases cited, namely, Peary Lall Mozoomdar v. Komal Kishore Dussia (1880) I.L R. 6 Cal. 30, and the case of Ledpard v. Bull (1886) I.L.R. 9 All 191: L.R. 13 I. A. 134, are not on all fours with the present case, still we think that the reasons given there are applicable. If this Court could not try a suit which was transferred from a Court which had no jurisdiction to try it, it is difficult to see how it can hear an appeal transferred from a Court which had no jurisdiction be hear such appeal. It is admitted that the District Judge’s Court had no jurisdiction to hear this appeal. Therefore we think it follows that we cannot hear the appeal as an appeal which has been withdrawn from that Court and placed on the file of this Court by the order to which we have referred.

5. With regard to the other question it is contended that the appeal is now on the tile of this Court, and we can hear it as an appeal to this Court. As we have pointed out we could only hear it as an appeal to this Court, if it had been filed here, and this has not been done. We think it is quite clear, having regard to what has taken place that it would be incompetent to us to allow a memorandum of appeal to be filed now. It might happen in many cases that an Appellate Court, on finding that the parties have erred as to jurisdiction, would under Section 5 If the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed when period expires, closed, the suit, appeal or application may be instituted, presented or made on the day that the Court re-opens. Any appeal or application for a review of judgment may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not presenting the appeal or making the application within such period of the Limitation Act allow the appeal to be filed. But here we are precluded from assenting to such an application, even if a memorandum of appeal had now been tendered to us. We may assume for the purposes of argument that the appellant is willing to tender a fresh memorandum of appeal. As a matter of fact the learned Counsel for the appellant says his client is willing to do so. The Division Bench of this Court in this case held that the 16th of September 1895 was a date too late for an application under Section 5 of the Limitation Act. It, therefore, follows that the 20th of July 1897 is very much too late. No fresh fact has intervened. In our opinion the decision of the Division Bench is binding upon us. It is a decision really upon Section 5 of the Limitation Act in the same case, where a Division Bench has declined to act under that section; it is not competent to any other Bench of this Court be act under it either at the hearing or at any other time. The only way in which that decision could be got rid of would be by review or by appeal. An appeal does not lie to this Court and no application for a review has been made.

6. It has been contended that these observations of Beverley and Ameer Ali JJ., are mere obiter dicta. But they were observations directed expressly to the application made by the appellant; and although it may have been competent to the Court to stop short at the expression of its opinion to which we have first referred, still their decision on the other matters do not amount only to an obiter dictum. It is an express decision upon a matter which they were invited to decide by the appellant.

7. We conclude, as we began, by expressing our regret that we are obliged give effect to the objection of Mr. Bonnerjee to the hearing of this appeal.

8. The appeal is dismissed with costs.

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