Authored By : Lancelot Sanderson, Asutosh Mookerjee,Lancelot Sanderson, Asutosh Mookerjee

Lancelot Sanderson, C.J.

1. The whole of this matter arises out of the fact that onthe 21st of February 1916, when an application for a review of a certainjudgment was made, the fee of Rs. 1-2-0 was paid instead of a fee of Re. 2-4-0.The first point with reference to that, which was made by the learned Vakil forthe respondent, was that the Article in the Statute of Limitation says that thetime is ninety days from the date of the decree, which must be taken, by reasonof another provision, to be the same date as the pronouncement of the judgment.That would be so, but for the fact that Section 12 of the Limitation Actprovides that in computing the period of limitation prescribed for an appeal,an application for leave to appeal as a pauper, and an application for a reviewof judgment (as in the case here) the day on which the judgment complained ofwas pronounced and the time requisite for obtaining a copy of the decree,sentence or order appealed against or sought to be reviewed shall beexcluded." In my judgment, that is a specific direction which hasreference not only to an appeal but to an application for a review of judgmentand even though the rules do not prescribe that a copy of the decree should beattached to the application, there is this specific direction contained in theStatute that the time requisite for obtaining a copy of the decree shall beexcluded; and inasmuch as the decree was not signed until the 6th of January1916, in my opinion the period of limitation would not commence to run until atall events that day in January 1916. Consequently the payment, which was madeon the 8th of March 1916, of the additional fee of Re. 1-2-0 would be withintime. Therefore the first point which the learned Vakil for the respondenttakes fails.

2. The second point is that under Chapter XI, Rule 4, of theHigh Court Rules, Appellate Side, the appellant, to whom was handed acertificate by the Deputy Registrar that his application was irregular ought tohave moved the High Court within seven days from the date upon which the DeputyRegistrar handed him the certificate. The words of the rule are, within sevendays from the date of such certificate the applicant, either in person or by aVakil or Advocate, shall present the application by way of motion in open Courtto the Division Court of whose judgment a review is sought." The learnedVakil, when I asked him what was meant by the word application, agreed thatthat could only mean an application for review. I think that is the correctinterpretation. It is clear to me that that rule was intended to apply to thecase where the Deputy Registrar gives a certificate that all the proceedingswere in order and not to cases where the certificate of the Deputy Registrarwas to the effect that the proceedings were not in order. As was pointed out byMr. Justice Mookerjee, if the appellant under these last mentionedcircumstances came to the High Court on an application for review of judgment,he would at once be met with the answer that the High Court would not hear theapplication it not being in order, having regard to the certificate of theDeputy Registrar. Therefore, in my opinion, that point is not a good one. Itwas next argued the application should not be heard by this Court now, becausethe Chief Justice of this Court can only hear an application for review if itis impossible for the Court which passed the judgment to hear it, or at allevents, if there is not one of the Judges who decided the appeal available forthe purpose. It appears that the additional fee was not paid until the 8th ofMarch of this year. Until then the Registrar was not in a position to certifythat the proceedings were in order. Until that moment no application could bemade for review of judgment and inasmuch as Mr. Justice Mullick retired fromthis Court on the 29th of February 1916 and Mr. Justice Holmwood went onfurlough on the 10th of March, two days after this matter was put in order,there was no time to make the application to either of the Judges. I,therefore, think that the application may be made to this Court and for thereasons above mentioned it is not out of time.

Asutosh Mookerjee, J.

3. I agree.

4. Their Lordships then proceeded to hear the appeal.

5. Babu Baranashi Basi Mukherjee, for theAppellants-Petitioners, relied upon Section 153, Bengal Tenancy Act, BindeswariProsad Singh v. Lakpat Nath Singh 8 Ind. Cas. 26 [LQ/CalHC/1910/477] : 15 C.W.N. 25 and the casestherein cited. The case of Bhagabati Bewa v. Nanda Kumar Chuckerbutty (2) uponwhich reliance had been placed in the judgment under review, was clearlydistinguishable, as there the Judge in appeal had not needed any of thequestions mentioned in Section 153.

6. Babu Sarat Chandra Roy Chaudhri (with him Babu DhircndraKrishna Roy for Babu Sasadhar Roy), for the Opposite Party, relied upon BhagabatiBewa v. Nanda Kumar Chucherbutty : 12 C.W.N. 835 and AmritoLal Mukherjee v Ram Chandra Roy 29 C. 60. At any rate the learned Judge in thelower Appellate Court had jurisdiction to deal with the matter under theproviso to Section 153, Bengal Tenancy Act. He dismissed the application forrevision under that proviso only because he thought that my client ought tosucceed in the appeal. If the appeal be held to be incompetent, he should beasked to deal with the matter in the exercise of his powers of revision.

7. Babu Baranashi Bashi Mukherjee, being, called upon toreply only on the question of revival of the petition for revision before theDistrict Judge, said:

8. The jurisdiction under the proviso to Section 153 isentirely discretionary, and when the lower Appellate Court dismissed theapplication under that section your Lordships should not interfere. Moreover,the application before the District Judge did not raise any question ofjurisdiction and was as such incompetent. The decision of the Munsif might havebeen wrong in fact or in law or in both. But that would not give jurisdictionto the District Judge to correct the decision in exercise of his powers underthe proviso to Section 153, which is exactly the same in its terms with Section115 of the Code of Civil Procedure.

Lancelot Sanderson, C.J.

9. In this case the facts are a little peculiar. The actionwas brought by the plaintiff against the first defendant who is her father andthe second defendant who is her husband, and the action was brought for arrearsof rent. The plaintiff alleged that she had purchased the property from thesuperior landlord of the first defendant, her father, on the 1st September1908, and she sued for four years arrears of rent--two before the purchase andtwo after the purchase.

10. The defence set up by the first defendant, theplaintiffs father, was that the land had not been purchased by the plaintiffat all but that he himself was the purchaser and that the purchase had beencarried through in the name of his daughter, the plaintiff. When the case camebefore the Court of first instance, this issue, as to whether the plaintiff wasthe owner in her own right and in the interest which she claimed or whether shewas simply a nominee of her father, was raised; but the learned Munsif did notdeal with it. He expressly said that he did not deal with the question oftitle; but he said that inasmuch as the plaintiff had not proved the receipt ofany rent from the first defendant he was justified in giving judgment for thedefendant against the plaintiff. Thereupon the plaintiff appealed to theDistrict Judge and, besides appealing, she made an application at the same timeas the appeal under the proviso of Section 153 of the Bengal Tenancy Act.

11. On the hearing of the appeal it was urged before thelearned District Judge on behalf of the defendant that it was not competent forthe plaintiff to appeal, because the case had been heard by the" Munsif inpursuance of Section 153, Clause (&), the Munsif being a Judicial Officerespecially empowered by the Local Government to exercise final jurisdictionunder this section and the amount claimed in the suit not exceeding fiftyrupees. It was urged that those being the facts no appeal lay from the decisionof the learned Munsif. On the other hand, the plaintiff said that an appeal didlie, because, she urged, the learned Munsif had decided a question relating tothe title to the land, and the learned District Judge came to the conclusionthat the learned Munsif had decided a question relating to the title to theland and, therefore, he held that an appeal lay and he heard the appeal anddecided that the truth lay on the side of the plaintiff, that she, in fact, wasthe purchaser of the superior landlords interest in the land, and her fatherwas liable to pay the rent for which she was suing. The application forrevision under the proviso of Section 153 naturally, was not pressed, becausethe plaintiff got all that she wanted, she having succeeded in the appeal, andthat application was dismissed each party paying his own costs. Then thedefendant appealed to the High Court and the High Court decided, first, thatthe learned District Judge was wrong in holding that there was an appeal fromthe learned Munsif to himself, and inasmuch as there was no appeal from theCourt of first instance to the learned District Judge there was no appeal fromthe learned District Judge to the High Court and, on these grounds, the twolearned Judges of this Court dismissed the appeal. An application was made tothose two learned Judges on behalf of the defendant to exercise their powers ofrevision under Section 115 of the Civil Procedure Code, but they said thathaving regard to the nature of the case and the facts which the learnedDistrict Judge found, they did not intend to exercise their power of revisionunder Section 115.

12. Under those circumstances the defendant obtained a Rulefrom this Court for a review of the judgment of the two learned Judges of theHigh Court.

13. The first question we have to consider is whether thelearned Judges were right in holding that inasmuch as there was no appeal fromthe learned Munsif to the District Judge there was no appeal from the DistrictJudge to the High Court.

14. I agree with the decision that there was in this case noappeal from the Court of first instance to the learned District Judge, becausethe section says that an appeal shall not lie from any decree or order passed,whether in the first instance or on appeal, in any suit instituted by alandlord for the recovery of rent where (b)."(I have already read Clause(6) and I need not read it again)" unless in either case the decree ororder has decided a question relating to title to land or to some interest inland as between parties having conflicting claims thereto.... " As I havealready said, in my opinion there was raised before the Court of first instancea question relating to title to land as between parties having conflictingclaims thereto, but the Munsif expressly refrained from deciding that question.Therefore that question did not come within the words of the section, viz.,where the decree or order decided a question relating to title to land asbetween parties having conflicting claims thereto. "

15. Then comes the second branch of the question whether thelearned Judges were right in holding that there was no appeal to this Court. Inmy judgment, with every respect to them, they were wrong. The judgment wasbased upon a decision, to which our attention was drawn this morning, inBhagabati Bewa v. Nanda Kumar Chuckerbutty : 12 C.W.N. 835 Inthat case the head-note is to this effect: "A suit by a co-sharer landlordfor his share of the rent only, without making the other co-sharers parties, isa suit instituted by a landlord for the recovery of rent within the meaning ofSection 153, Bengal Tenancy Act. Where the rent claimed in such a suit did notexceed Rs. 50 and it was tried and dismissed by a Munsif who was especiallyempowered under Clause (b) of Section 153: Held, that no appeal lay to theSubordinate Judge and hence no second appeal from his decision reversing thatof the Munsif." Now at the first sight that would appear to be material tothis case. But when we look at the facts of the case it is clear that neitherthe learned Munsif nor the learned Judge of the first Appellate Court haddecided a question of title to land: and as in that case neither of the Courtshad decided that point, it may have been right to have held that if no appeal liesfrom the Munsif to the Subordinate Judge no appeal lies from the SubordinateJudge to the High Court." I express no opinion on that question, as it isnot necessary for the purpose of this case to do so: for in the present casethe learned District Judge had decided a question of title between the partiesand, therefore, in my judgment the case clearly comes within Section 153 which,I may repeat, says that an appeal shall not lie from any decree or orderpassed, whether in the first instance or on appeal...unless in either case thedecree or order has decided a question relating to title to land. In this caseit seems to be obvious that on appeal there was a question of title decided bythe learned District Judge. Therefore, the case comes within the expressprovision of that section and an appeal did lie from the learned District Judgeto this Court. Therefore, the position is this. It being decided that an appealdoes lie from the District Judge to this Court and it having been alreadydecided that there was no appeal from the learned Munsif to the learnedDistrict Judge, the consequence is that the decision of this Court must be setaside and as a natural consequence the decision of the learned District Judgemust also be set aside.

16. I should be sorry if the matter had to rest there,because one cannot disregard the finding of the learned District Judge, who hasinvestigated the case and has come to the conclusion that the plaintiff isentitled to the relief which she sought in this case and has found that thetruth lay on her side and that she was the real purchaser of this property, and1 am glad to find that it is open to us to direct further investigation of thematter. It is not disputed by the learned Vakil for the defendant that we havejurisdiction to send this case back to the District Judge for further enquiryto be made either by himself or, if he thinks right, by the learned Munsif, andwe think that the proper course to adopt is that this matter should be sentback to the learned District Judge in order that he may investigate theapplication, which was made under the proviso of Section 153 for the revisionof the judgment of the learned Munsif. That proviso is to this effect: TheDistrict Judge may call for the record of any case in which a judicial officeras aforesaid has passed a decree or order to which this section applies, if itappears that the Judicial Officer has exercised a jurisdiction not vested inhim by law, or has failed to exercise a jurisdiction so vested or has acted in theexercise of his jurisdiction illegally or with material irregularity, and maypass such order as the District Judge thinks fit."

17. Therefore, this case will go back to the District Judge,and if he has sufficient material already before him to enable him to-deal withthe application under the proviso of Section 153, of course he will deal withit. But if he thinks that it will be necessary to refer the matter to thelearned Munsif for taking evidence as to the facts which may be necessary formaking the further enquiry, he will do so.

18. The result of my decision is that the judgment of theHigh Court and that of the District Judge must be set aside, and the defendantmust have the costs of this Rule (hearing fee two gold mohurs) and also thecosts of the appeal to the High Court as well as the costs of the appeal to thelearned District Judge.

Asutosh Mookerjee, J.

19. I agree that this application for review of judgmentmust be granted, as the proceedings throughout this litigation have been characterizedby a succession of inexplicable errors.

20. The plaintiff instituted the suit to recover arrears ofrent from her father. The amount claimed did not exceed Rs. 50 and the suit wastried by a judicial officer specially empowered by the Local Government toexercise final jurisdiction under Section 153 of the Bengal Tenancy Act. Thedefendant pleaded that the plaintiff had no title to the rent claimed, inasmuchas the interest of the superior landlord had been purchased not by theplaintiff but by himself. On this state of the pleadings, a question clearlyarose "relating to an interest in the land as between parties havingconflicting claims thereto." The Trial Court, however, declined toinvestigate this point and dismissed the suit, on the ground that as theplaintiff had failed to prove realization of rent from the defendant inprevious years, she was not entitled to succeed in her present claim. The firstquestion is, did an appeal lie against this decree. Now in order to determinewhether an appeal lies from a judgment passed by a Judicial Officer speciallyempowered by the Local Government to exercise final jurisdiction under Section153 of the Bengal Tenancy Act, the test to be applied is, not whether one ofthe special questions mentioned in the section has been in controversy betweenthe parties, but whether the decree has actually decided such a question. Inthe case before us, the judgment of the Trial Court makes it clear that thequestion of conflicting title was not decided. Consequently no appeal lay tothe District Judge; yet an appeal was preferred to him. A preliminary objectionthat the appeal was incompetent was erroneously overruled; the appeal was heardon the merits, the judgment of the Trial Court was reversed and a decree was madein favour of the plaintiff on the ground that the interest of the superiorlandlord had been purchased by her and not by the defendant. A second appealwas then preferred to this Court, and a decree of the District Judge wasassailed on the ground that it had been made without jurisdiction. This wascontroverted by the respondent, who argued that the appeal to the DistrictJudge was competent. This contention was rightly overruled on the authority ofthe decision in Shilabati Debi v. Roderigues 35 0. 547 : 12 C.W.N. 448. ThisCourt, (Holmwood and Mullick, JJ.) however, did not give effect to the viewthat the appeal to the District Judge was incompetent, but proceeded to hold onthe basis of the decision in Bhagabati Bewa v. Nanda Kumar Chuckerbutty : 12 C.W.N. 835 that inasmuch as the decree of the District Judge had beenpassed without jurisdiction, the appeal to this Court was incompetent. Theresult was that the appeal to this Court was dismissed and the decree of theDistrict Judge stood untouched. On the present application for review ofjudgment, we are invited to consider the correctness of this decision.

21. On behalf of the respondent, the view has beenmaintained that if an appeal has been heard without jurisdiction, no appeal liesfrom the appellate decree which must be deemed a nullity; reliance has beenplaced on the decision in Bhagabati Bewa v. Nanda Kumar Chuckerbutty: 12 C.W.N. 835 and the observations in Amrito Lal Mukherjeev. Ram Chandra Roy (3) 29 C. 60. In my opinion, the proposition formulated bythe respondent is unsound in principle and is opposed to the authorities. It isclear that the observations in Bhagabati Bewa v. Nanda Kugnar Chuckerbutty: 12 C.W.N. 835 though expressed in general terms, must belimited by the facts of the case then before the Court. The facts were such asmade an appeal from the decision of the Trial Court to the Subordinate Judgeincompetent, and the decision of the Subordinate Judge was also of such acharacter as made a second appeal to this Court incompetent under Section 153.That decision, when analysed, cannot rightly be regarded as an authority forthe general proposition that if an appeal has been heard without jurisdictionno appeal lies against the appellate decree. The observations in Amrito LalMukherjee v. Ram Chandra Roy 29 C. 60 are also capable of a similarly limitedinterpretation. On the other hand, we have the decision in Abdul Hossein v.Kasi Sahu 27 C. 362 : 4 C.W.N. 41 where this Court heard an appeal against anappellate decree made without jurisdiction, and reversed the decision of theCourt of Appeal below. That the Court was competent to do so is plain from thedecision of the Judicial Committee in Minakshi Naidu v. Subramanya Sastri 14I.A. 160 : 11 M. 26 : 5 Sur. P.C.J. 54 : 11 Ind Jur. 393. We have finally thedecision in Ranjit Misser v. Ramudar Singh 6 Ind. Cas. 940 : 16 C.L.J. 77 inwhich this very question was discussed and the rule was laid down that wherejurisdiction is usurped by a Court in passing an order against which an appealwould lie if it had been passed with jurisdiction, an appeal against the ordercannot be defeated on the ground that the order was made without jurisdiction.See also Jwala Prasad v. Salig Ram 13 A. 575 : A.W.N. (1891) 158; WalayatHusain v. Ram Lal 25 Ind. Cas. 643 [LQ/AllHC/1914/184] : 12 A.L.J. 1113. A decree made withoutjurisdiction possesses nonetheless the qualities of a decree as between theparties thereto, and if there is a statutory appeal from decrees made in suitsof that character the decree does not become unassailable because it has beenmade without jurisdiction. That an appeal lies against a decree made withoutjurisdiction is indeed also clear from the terms of Sections 99 and 115 of theCivil Procedure Code. In the case before us, as the Subordinate Judge haddecided a question of interest in the land as between parties havingconflicting claims thereto, an appeal did lie to this Court against his decreeunder the express provisions of Section 153. It is difficult to appreciate howthat appeal could he nullified because the decree was vitiated by absence ofjurisdiction in addition to other possible errors. I am clearly of opinion thatthe decision of this Court passed in appeal was consequently erroneous and thatthis Court should have reversed the decision of the District Judge on theground that it had been passed without jurisdiction. This application forreview must accordingly succeed and the decision of this Court must be setaside.

22. The result of our order is that the appeal to this Courtstands revived for disposal under Order XLVII, Rule 8, of the Code of CivilProcedure. For reasons already assigned, that appeal must be allowed, thedecree of the lower Appellate Court discharged and that of the Court of firstinstance restored. But the question arises, what further course, if any, shouldbe adopted in the interest of justice. It is plain that the decision of theTrial Court was liable to be revised by the District Judge under Section 153 ofthe Bengal Tenancy Act. As a matter of fact an application for revision waspresented to him, but when the appeal succeeded, the application was abandoned.Now that it has been held that the appeal was incompetent, the plaintiff shouldclearly be allowed to fall back upon the application, which may be deemed tostand revived; it will consequently be open to the District Judge to proceed onthe basis of that application and to make such order as he is competent to passunder Section 153 of the Bengal Tenancy Act.

23. On these grounds I agree with the order proposed by theChief Justice in this matter.

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Gangadhar Karmakar and Ors.vs. Shekharbasini Dasya and Ors.(01.05.1916 - CALHC)