Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Rhimbai Jamalbhoy vs Mariam Abdul Rasool on 15 November, 1909
Equivalent citations: (1910) 12 BOMLR 149
Author: B S Kt.
Bench: B Scott, Kt., Batchelor


Basil Scott Kt., C.J.

1. This is an application by the plaintiff in a suit filed in the Court of the Resident at Aden that an order dismissing an appeal in the suit under Section 551 of the Civil Procedure Code may be quashed and that the Resident may be required to state a case upon certain questions specified in an application, dated the 23rd of September 1908, made the day before he delivered judgment in the appeal, it being contended that the obligation to state such a case was imposed upon him by the provisions of Section 8 of the Aden Act II of 1864.

2. A preliminary objection was taken, on behalf of the opponents, that this Court has no jurisdiction to interfere in revision with any order passed by the Resident, in the exercise of his civil jurisdiction under the Aden Act, on the ground that the Resident being only subject to the High Court of Bombay, in certain specified particulars under the Act, with regard to civil jurisdiction, his Court could not be said to be a Court subordinate to the High Court within the meaning of Section 115 of the Civil Procedure Code.

3. Now with regard to questions which should be stated by the Resident for the decision of the High Court under the provisions of Section 8 of the Aden Act there can, we think, be no question that the Resident’s Court is subordinate to the High Court, for the Resident is, after the decision of the High Court given upon the questions submitted by him under that section, bound to pass a decree and to dispose of the case conformably to the decision of the High Court. We think, therefore, that, with regard to such questions, this Court has the power of revision under Section 115 of the Code in order that the Resident may not refuse to exercise the jurisdiction given to him by that section and may not act with material irregularity in the exercise of such jurisdiction without the power of the superintending Court to interfere. We, therefore, decide the preliminary objection against the opponents.

4. The next question is whether the Resident has refused to exercise the jurisdiction vested in him under Section 8 or has acted with material irregularity in the exercise of such jurisdiction.

5. It appears that on the 14th of August 1908, a Petition of Appeal was presented to him from the decision of his Assistant Resident, Major Carter, in suit No. 176 of 1907, rejecting the plaint on the ground that it was not properly stamped. The Petition of Appeal, according to the practice in Aden, where pleaders are not usually heard, stated the arguments of the appellants and referred to the authorities on which they relied and nothing more was heard of the appeal until an application, made to the Resident on the 28th of September 1908, requesting that the applicant might be informed as to what had become of the appeal, received, on the 30th of September, a response requiring the appellants to attend the Court-house on the 7th of October in connection with the appeal. Prior to the application of the 28th of September, namely, on the 23rd of September, the plaintiff had applied under Section 8 of the Aden Act for reference of the following questions in the above appeal for decision of the High Court of Bombay, namely, ” Is the plaint sufficiently stamped, and was the order of the Court, rejecting the plaint under Section 54, Clause (&), of the Civil Procedure Code, 1882, without making an order what the requisite stamp should be, legal?”

6. On the 7th of October the plaintiff attended at the Court of the Resident and a judgment was then read out dismissing the appeal under Section 551. The judgment is dated 24th of September.

7. Neither the judgment nor the records of the case indicate that the Resident took any notice whatever of the application made on the 23rd of September that a case should be stated under Section 8.

8. The question is, whether in ignoring that application so far as the records of the case indicate, the Resident acted with material irregularity in the exercise of his jurisdiction or refused to exercise the jurisdiction vested in him by law.

9. Now one of the conditions entitling a litigant at Aden to demand the statement of a case for the decision of the High Court by the Resident is stated in Section 8 to be the trial of a suit or the hearing of an appeal in which the claim estimated according to any law for the valuation of claims for the time being in force shall exceed Rs. 1,000 in value. In the present case the claim of the plaintiff was for a declaration and injunction with reference to certain property of a deceased resident in Aden alleged to be of the value of upwards of Rs. 50,000 in which the plaintiff was entitled to a quarter share.

10. The claim being for declaration and injunction was, under the provisions of the Court Fees Act, Section 7, sub Section (4), Clauses (c) and (d), valued by the plaintiff at Rs. 130, upon which the prescribed Court-fee stamp was Rs. 10 only.

11. For the purpose of jurisdiction in the- Bombay Presidency, the Suits Valuation Act VII of 1887, Section 8, provides that ” where in suits other than those referred to in the Court Fees Act, 1870, Section 7, paragraphs v, vi and ix and paragraph x, Clause (d), Court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same.” Therefore, as under Section 15 of the Aden Act, the Court of the Resident is to be guided by the spirit and principle of the laws and regulations in force in the Presidency of Bombay and administered in the Courts of that Presidency not established by Royal Charter and in the High Court in the exercise of its jurisdiction as a Court of Appeal from those Courts. We have in the provisions of the Suits Valuation Act, to which we have referred, ‘ the law for the time being in force for the valuation of claims.

12. Assuming that the plaintiff’s claim has been correctly valued under the Court Fees Act, as appears to be the case on a consideration of the decisions of this Court reported in Manohar Ganesh v. Ramcharandas (1877) I.L.R. 2 Bom. 219, Sardarsingji v. Ganpatsingji (1892) I.L.R. 17 Bom. 56, Parvatibai v. Vishwanath (1904) I.L.R. 29 Bom. 207, and Vachhani Keshabhai v. Vachfyani Nanbha (1908) 11 Bom. L.R. 30, her claim estimated according to the law for the valuation of claims for the time being in force would be Rs. 130. It is, therefore, a claim which does not fulfil the requirements of Section 8 of the Aden Act so as to give the plaintiff a right to demand the statement of the case upon any question of fact or Jaw arising in her suit.

13. For these reasons we cannot hold that the case calls for any interference under Section 115 of the Code, and we dismiss the application with costs.

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