Authored By : Mookerjee, Beachcroft

Mookerjee, J.

1. We are invited to consider the propriety of an order bywhich the Court below has recalled an order previously made for the appointmentof the Appellant as guardian of the person and property of her daughter-in-law,the Respondent. On the 20th January 1912 the Appellant made an applicationunder the provisions of the Guardians and Wards Act. The application was notopposed, and on the 15th May a conditional order was made as a matter of coursein her favour. She was called upon to furnish security, and as soon as theorder of the Court had been carried out in this respect, a formal order ofappointment was drawn up on the 26th November 1912. On the 21st July 1913, thedaughter-in-law applied to the District Judge for revocation of the previousorder on the ground that she had attained majority before her mother-in-law wasappointed guardian of her person and property. The District Judge thereupontook evidence, and ultimately came to the conclusion that the daughter-in-lawhad been born on the 23rd January 1893, and had consequently attained majorityon the 23rd January 1911, long before the order for the appointment of hermother-in-law as guardian of her person and property had been made. In thisview, the District Judge has recalled the orders of the 15th May and the 26thNovember 1912. The order of revocation has been assailed in this Court onbehalf of the mother-in-law, and we have been invited to examine its proprietyin the exercise either of our appellate or of our revisional jurisdiction.

2. A preliminary objection has been taken to the competencyof the appeal, and it has been argued that as the order was not made under anyof the clauses of section 39 of the Guardians and Wards Act, it cannot bequestioned by way of appeal under any of the clauses of sec. 47. Thispreliminary objection raises a question of considerable importance as to thetrue nature of the jurisdiction which has been exercised by the District Judgein this matter. On behalf of the Appellant it has been broadly contended thatthe District Judge had either jurisdiction to take action under sec. 39, or hadno jurisdiction at all to deal with the matter in controversy before him. Insupport of the former view, it has been argued that sec. 39 is not exhaustiveand that the circumstances specified therein, under which the Court iscompetent to remove a guardian, are merely illustrative. We have in substancebeen invited to read sec. 39 as if the legislature had provided that "theCourt may remove a guardian appointed by the Court, for the following amongstother reasons." We are not prepared to accept this view as well-founded.If the legislature had intended to give illustrations merely of thecontingencies in which the Court may remove a guardian in the exercise of the powerconferred upon it by sec. 39, the section might have been differently framed.In our opinion, sec. 39 specifies the circumstances under which the Court mayremove a guardian appointed under the statute. It is worthy of note that eachof the circumstances specified in the section is of such a character, that ifits existence is established, the Court would have no option but to remove theguardian in the interests of the minor. Consequently we must hold that theorder in this case was not made under sec. 39. We may add that the only clauseof sec. 39, which, it was suggested, might possibly cover the case, if reliancehad to be placed upon a special clause, was clause (j) which provides that theCourt may remove a guardian by reason of the guardianship of the guardianceasing or being liable to cease under the law to which the minor is subject.But if it be a fact that when the order for appointment of the guardian wasmade in the present case, there was no infant in respect of whom the Courtcould exercise jurisdiction, no question clearly arises about the cessation ofguardianship. There is no escape, consequently, from the position that sec. 39does not apply; and this necessarily leads to the inference that the order isnot appealable under clause (9) of sec. 47 which provides for an appeal to thisCourt from an order, made by a subordinate Court under sec. 39, for removal ofa guardian. The first branch of the contention of the Appellant mustconsequently fail.

3. As regards the second branch of the contention of theAppellant, it has been broadly argued that if the District Judge had nojurisdiction to entertain an application under sec. 39, he had no jurisdictionto deal with the matter at all. The contention in substance is that the Judge,invested with authority to deal with matters under the Guardians and Wards Act,constitutes a special Court created by the Legislature for specified purposesand that the limits of his jurisdiction must be sought for within the fourcorners of the Statute. The position taken up by the Appellant is that as thereis no section of the Guardians and Wards Act applicable in terms to the presentmatter, the Judge was incompetent to inquire into the allegations of theRespondent. In our opinion, this contention is entirely baseless. A Court whichexercises powers under the Guardians and Wards Act has ample inherentjurisdiction to deal with matters brought before it, of which cognizance may berequired in the interests of justice. Sec. 151 of the Code of Civil Procedureof 1908 which provides that nothing in the Code shall be deemed to limit orotherwise affect the inherent power of the Court to make such orders as may benecessary for the ends of justice, or to prevent abuse of the process of theCourt, does not formulate a new doctrine. It merely furnishes legislativerecognition of a well-established principle, which is applicable quite as muchto Courts called upon to deal with matters under the Guardians and Wards Act asto ordinary Civil Courts. The futility of the contention of the Appellant maybe illustrated by an obvious example. Sec. 10 of the Guardians and Wards Actspecifies the contents of the application to the Court : the Appellant isrequired, amongst other matters, to state, so far as can be ascertained by him,the date of birth of the minor. Suppose after the application has been made andbefore the order of the Court, has been passed therein, it is brought to thenotice of the Court by the person in respect of whom a guardian is proposed tobe appointed or by some person on his behalf, that he is not an infant, that hehas as a matter of fact attained majority and that consequently the provisionsof the Guardians and Wards Act cannot be applied to his case. In such an event,it would plainly be competent to the Court to determine whether the allegedinfant was in reality an infant. The Court has jurisdiction to determine thequestion, indeed, it is incumbent upon the Court to investigate the matter, onthe fundamental principle that when the jurisdiction of a Court is invoked inrespect of a particular matter and such jurisdiction is challenged, it is theduty of the Court to determine the essential facts on the actual existence ofwhich alone the Court is competent to assume jurisdiction. It is indisputablethat the Court is competent to make an enquiry of this description, even thoughit may ultimately transpire that the Court has no jurisdiction over the matterin controversy; in other words, the Court has jurisdiction to determine that ithas no jurisdiction to deal with the matter brought before it [Hurree Prasad v.Koonjo Behary Marshall 99.; 1 Hay 238; W. R. Spl. 29; Ind. Jur. O.S. 20 (1862),Hukum Chand v. Kamalanand I.L.R. 88.Cal, 927 (941) : S.C. 3 C. L. J. 67 (1905),Budh Singh v. Nirad Baran 2 C L. J. 431 (437) (1905), Hudson v. Morgan I.L.R.36 Cal. 713 (721) : S.C. 9 C. L. J. 563 : 13 C.W.N. 651 (1909)]. This viewcannot be seriously challenged; and once it is accepted, as it must be, itfollows inevitably that, if even after the order has been made on the application,the Court is apprised that it has been made to assume jurisdiction in a matterover which it has in reality no jurisdiction; the Court has inherent power toinvestigate the matter and to recall the previous order, if it transpire thatit has been made without jurisdiction. It is needless to refer to authoritiesin support of this proposition; but if authority is required, reference may bemade to the classical work on Chancery Practice by Daniell, Vol. II, page 1303,where the following statement will be found: "If an order has been made asa matter of course and if there is any irregularity in the order or if it hasbeen obtained upon any false suggestion or by the suppression of any materialfact, it will be discharged on special application by motion, although on themerits it would have been proper to make the order." There are numerouscases to be found in the reports where this doctrine has been applied inEngland, and amongst those, reference may be made to the cases of Brookes v. Purton4 Bev. 494 (1841), St. Victor v. Oevcreux 6 Bev. 584 (1843), Marquis ofHertford v. Suisee 7 Bev. 160 (1844), Holcombe v. Antrobus, 8 Bev. 405(1845).Wilkin v. Nainby 8 Rev. 465 1845), DeFeucheres v. Dawes 11 Bev. 46(1848), Wyllie v. Ellice 11 Bev. 99 (1848), Brignell v. Whitehead 30 Bev. 229(1861), Harris v. Start 4 My. & Cr. 261 (1838), Cooper v. Lewis 2 Phil. 178(1847), Bidder v. Bridges 26 Ch D 1 (3) (1884). But the principle isessentially of much wider scope than is indicated by the passage to which wehave just referred. It is not confined in its application to ex-parte orders orto orders made as a matter of course. If an order has been obtained from theCourt by a suppression of facts, if the Court has been over-reached and hasbeen induced to assume jurisdiction over a matter in which, upon a true stateof facts, it does not possess jurisdiction, the Court is competent to recallthe order obtained from it by suppression or mis-representation of facts. Thisview is supported by a long series of decisions amongst which may be mentionedHiralal v. Premmoyee 2 C. L. J. 306 (1965), Gurdeo v. Chandrika 5 C. L. J. 611(620) : s. c. I. L. R 36 Cal. 193 (1907), Udit v. Radhika 6 C. L. J 662 (1907),Nagardas Vacharaj v. Anandarao I. L.R. 31 Bom. 590 (1907). Much stress howeverwas laid upon the provisions of sec. 48 of the Guardians and Wards Act where itis stated that save as provided by sec. 47 (which specifies appealable orders)and by sec. 622 of the Code of 1882 (which defines the grounds for revision),an order made under the Act shall be final and shall not be liable to becontested by suit or otherwise. The reference to sec. 47 of the Guardians andWards Act and to sec. 622 of the Code of 1882 indicates that the Legislaturehad in view the question of the liability of an order to be challenged by wayof appeal or revision before a superior tribunal; the Legislature did notcontemplate, it is said, a reconsideration of the order by the Court itself onthe ground that the Court had been induced to assume jurisdiction in a matterin which it had no jurisdiction. But we are clearly of opinion that section 48is not a bar to the present proceedings and that the District Judge hadjurisdiction to entertain the application in the exercise of his inherent powers.Consequently his order is not appealable. The preliminary objection mustaccordingly be allowed and the appeal dismissed with costs. We assess thehearing fee at three gold mohurs.

4. Rule No. 122 of 1914.

5. As regards the application for revision, it is plain thatit can be sustained on the ground either that the Court had no jurisdiction todeal with the application or that the Court in the exercise of its jurisdictionhas acted illegally or with material irregularity. We have already held that theDistrict Judge had jurisdiction to deal with the matter; and therefore the onlypoint for consideration is, whether he acted illegally or with materialirregularity. It has been suggested in support of the application thatimportant evidence was improperly excluded and that if such evidence had beenadmitted, it could have been shown that the application for revocation ofguardianship was not bond fide. Reference has also been made in the course ofargument to portions of the evidence. We may, in this connection, observe thatit is competent to the Court to investigate the facts in revision, if the Courtis satisfied that such a step is needed in the ends of justice, as was done inthe case of Kailash Chandra Haldar v. Bisswanath Pramanick 1 C.W N. 67 (1896).But we must guard against the possible assumption that the Court may, in amatter like this, in the exercise of its revisional jurisdiction, assumeappellate powers. One aspect of the fundamental distinction between theexercise of appellate and revisional powers was explained in the case ofShivanath v. Joomakashinath I. L. R. 7 Bom 341 (1883). A Court in the exerciseof its appellate jurisdiction investigates the facts, and, if necessary,substitutes its own appreciation of the evidence for that of the primary Court.But when the Court as a Court of revision looks into the evidence, it does sowith a view to determine whether the subordinate Court has assumed ajurisdiction which it did not possess, or declined a jurisdiction which it didpossess or has in the exercise of its jurisdiction acted illegally or withmaterial irregularity. If this distinction were overlooked, the superior Courtmight, in the name of revisional jurisdiction, exercise appellate powers.Consequently, in the case before us, we cannot be rightly invited by thePetitioner to examine the evidence with a view to determine whether theDistrict Judge has correctly appreciated its effect. But we may look at theevidence to determine whether he has acted illegally or irregularly in the exerciseof his jurisdiction. Upon that point we are satisfied that the ground taken bythe Petitioner has not been established. There is no indication whatever fromthe proceedings in the Court below that the District Judge excluded anyevidence the true bearing of which was explained to him. The only ground onwhich the Petitioner invites the Court to interfere in the exercise ofrevisional jurisdiction thus completely fails. The result is that this Rule isdischarged; we make no separate order as to costs.

Beachcroft, J.

I agree.

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Rashmoni Dassi vs.Ganoda Sundari Dassi (13.03.1914 -CALHC)