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TMI Blog1942 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... other. I say 'seems' advisedly because Judges differ about the justice of the law of limitation. As to the position in revision generally, Judges take such widely differing views about their powers that it has become exceedingly difficult for both the Bench and the Bar to know where they stand. Single Judges are particularly affected because at every turn a decision which prima facie binds' them is, or can be, quoted. Some Judge at some time can always be found to have been lenient. (I have not been without fault myself). His decision operates as a precedent. Others follow him and then the flood gates are opened up until a position is reached when it becomes almost impossible for a Judge sitting alone to stem the tide. 2. Thus, there is a reported Nagpur decision which binds Single Judges which states that the High Court can interfere even with a pure finding of fact if the finding is based on little evidence. See Padamsi v. Sheshrao A.I.R. 1923 Nag. 292. This was followed in Harakchand v. G.I.P. Railway Co. A.I.R. 1927 Nag. 77 There is also a decision of mine under the Provincial Insolvency Act which, though it does not actually say so, appears to suggest that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit should have been dismissed summarily because, under Section 3, Limitation Act, the plaintiff must in every case show on the face of the plaint that the claim is within time. 4. It is not clear that Article 60 does apply because that article is limited to cases in which money is deposited under an agreement that it shall be payable on demand, and no such agreement is pleaded. Cases were cited to show that in the absence 'of any express agreement one to that effect will be implied, but a case was also cited to show that when there is no agreement the matter is a loan and not a deposit and therefore Article 57 applies. That of course is highly debatable, but short of applying Article 120 with its six years, or Article 145 with its 30 years, the choice must lie between Articles 57 and 60, and on either view the claim would appear to be barred. 5. The written statement merely states: It is denied that the plaintiff deposited ₹ 400 or any amount with the defendant 31/2 years ago. It is not pleaded that assuming the money was given it was a loan and not a deposit, though the deposit is denied. The point of limitation was also taken. The lower Court finds that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . With the utmost respect, it seems to me that any distinction which the Legislature had intended to draw between appeal and revision has been so slurred over in practice as now to be almost non-existent. Matters appear to have reached such a pass that very often, for all practical purposes, there is now hardly any difference between a Small Cause Court revision and a first appeal. That the Legislature intended that there should be a distinction is, I think, admitted on all hands, but when one begins to enquire into what the distinction is, a vast vagueness emerges and it seems to me, speaking with all respect, that much loose thinking also reveals itself. Thus, one body of opinion appears to consider that the distinction lies in the matter of discretion. It is said that an appeal lies as of right whereas in revision the High Court is not bound to interfere but it can exercise a discretion and need only interfere in deserving cases, or so as to further the ends of justice, and so on. See for example, Village Sanitation Panchayat Committee v. S.R. Deshmukh 8. I can hardly think that that can be the point of distinction. A discretion of that kind can only be exercised judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court must interfere. And yet that can hardly be so because that: at once sweeps away all pretence of distinction between revision and appeal. And that brings me to something even more fundamental. What is error? Who is to decide what is right and what is wrong? Whether a Judge had made a mistake and when? 10. It seems to me that the fallacy underlying this line of thinking, even though it is backed by a mass of authority which I am bound to respect, lies in the failure to realise that there is no such thing as absolute justice or absolute right and wrong, at any rate in the practical ordinary everyday affairs of life with which the Courts have to deal. In an ultimate analysis, the matter always turns upon the opinion of some one man or body of men. There is no other way in which justice can be administered. And this is recognised by every State or body of men however elementary, which makes any attempt to administer justice. That is why Courts are established, Judges set up, and tribunals constituted. It by no means follows that the opinion of these men set up in authority over others is right or sound or just. The many differences of opinion which exist among them sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten turns out that the final tribunal of appeal considers the appellate Court is wrong and the first Court right. 13. It is to my mind clear that it is impossible to speak of justice and right as abstract quantities which are final and immutable. In every case they are just what some particular person or body of persons happen to think. Therefore, in every case what we have to look for is which body or person has been entrusted by the Legislature with the privilege of saying the final word. It is like an umpire at a cricket match. What he says goes. His word is law within the ambits of his authority: not because he is infallible, nor because he is necessarily right. But because somebody must decide or else the game cannot go on. If there is an appeal to the Board of Control (if there is such an authority and such an appeal) it cannot decide whether the umpire was right or wrong. All it can enquire into is whether the man who gave the decision was the umpire or whether he was some stranger or fieldsman masquerading as an umpire in a white coat. And if he was the umpire, was his decision according to the laws of cricket? That is to say, was the batsman given out because he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to punish the innocent members of a rogue's family for sins committed by him (and that happens many a time when a decision is given in a Court of law), especially in cases where the result can make little or no practical difference to the other side. The truth of the matter is that high sounding phrases like justice and right and wrong are impossible to appreciate and apply without a clear understanding of what they import. When used in relation to matters arising in the Courts, they mean in every case, and can only mean, the opinion of some one man or body of men. It is true the opinion is that of experienced minds specially trained to gauge these problems and to solve them in accordance with settled principles after applying established rules, but every case, when analysed, comes back to the same thing: justice is what A thinks or what B thinks. And it is for the Legislature to say who shall be A and who B. Judges can only give effect to what the Legislature intends, and if the Legislature intends that a revision is not to be same thing as an appeal, Judges must loyally accept that position and faithfully carry out its wishes. 16. If I am right in what I say, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The law gives no right to the parties aggrieved by the decrees or orders of that Court to invoke the jurisdiction of the superior Courts including the High Court. Since, a right of appeal is a substantive right and that right is not granted to any party, the High Court cannot exercise any power of the first or second appellate Court. Section 25, Provincial Small Cause Courts Act, only permits an aggrieved party to bring any decided case to the notice of the High Court as the Court of the last resort and as a Court having a discretionary power of control over all Courts subordinate to it. Section 25, Provincial Small Cause Courts Act, is wider than Section 115 which covers only points of jurisdiction. While the High Court is not bound to exercise the first or second appellate or revisional Court's powers, it appears to me that it has been endowed with the residuary powers Such as are contemplated by Section 151, Civil P.C., to be exercised as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 20. Section 25, Provincial Small Cause Courts Act, gives an opportunity to a party to bring any case decided by the Small Cause Court to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the view of the Small Cause Court on any question of law or fact. As authority may be found to support almost every view, I think it unprofitable to discuss the vast mass of case-law cited at the Bar. In Amir Hassan Khan v. Sheo Baksh Singh 11 Cal. 6 the Privy Council explained in 1884 the narrow limits within which the High Court can interfere in revision under Section 662 of Act 10 of 1877, which corresponds to Section 115 of the present Code of Civil Procedure. When the Provincial Small Cause Courts Act was enacted in 1887 a wide departure was made from the wording of the Civil Procedure Code, and it may be assumed that the Legislature intended that the High Court should have wider powers under Section 25, Small Cause Courts Act, than it has under Section 115, Civil P.C. I think however that it is very clear that Section 25 was not intended to confer a right of appeal on any question of fact, still less on any question of law. As Bose J. has pointed out in his referring order, the Act provides for no appeal, except within the very limited scope of Section 24, and I agree with him that this omission was deliberate. The position has been forcibly and, if I may say SO, admirably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is small chance of justice, inasmuch as the trouble, delay and irrecoverable costs are likely to nullify the benefit to him of his decree and to leave him wishing that he had never sought justice from the Courts at all.... But the evil of the practice of treating Section 25 as giving in effect a right of appeal on law is apparent in the much more numerous cases in which respondents are vexed and delayed for naught. The policy of the law is that there should be no appeal (this for the most cogent reasons): not even in these small cases to the District Court: not even on a point of law. The High Court can doubtless decide some cases better than the Small Cause Court: but the system whereby small causes are summarily decided without appeal on law or fact will give, year in and year out, better justice than a system of appeals. If in order to effect a certain amount of good in a comparatively few cases, the respondents are hauled up to the High Court, then it may be said with some confidence that that section does much more harm than good. 26. There are two points to be decided: first, the meaning of according to law , and secondly, in what sort of cases the High. Court shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case and to pass such orders as it thinks fit. In Julius v. Bishop of Oxford (1880) 5 A.C. 214 the House of Lords considered the interpretation of the Church Discipline Act which provides that in certain circumstances it shall be lawful for the bishop of a diocese to issue a commission of inquiry, and Lord Blackburn at page 247 observed: I certainly cannot see any sufficient ground for saying that the object of the statute is such as to lead to the conclusion that the Legislature must have intended to oblige the bishop to exercise the power which, prima facie, he is entitled to refuse to exercise. And certainly, if discretion is to be entrusted to anyone, the bishop is the fittest person to whom to trust it. 29. The law is summed up in Maxwell on the Interpretation of Statutes at page 216 of Edn. 8: Following the decision of the House of Lords in Julius v. Bishop of Oxford (1880) 5 A.C. 214 it was said that from the nature of the British language the word 'may' can never mean 'must,' that it is only potential, and when it is employed there is another question to be decided, viz., whether there is anything that makes it the duty of the person on whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constantly to decide whether an ordinary reasonable man would or would not have acted in a certain way, and it should not be too difficult for them to decide whether an ordinary reasonable man, unversed in the law, would call the decision a fair one or an unfair one. If he would call it a fair one, then I would say that the High Court is not bound to exercise its discretion and interfere. The High Court would naturally be slow to hold that a decision not according to law has done substantial justice, but there may be cases where such refusal would be proper, e. g., where, in the words of Bose J. there have been petty errors in procedure or technical irregularities. My answer to the question referred to us is that the High Court cannot interfere under Section 25, Provincial Small Cause Courts Act, with a finding of fact and should not interfere with a finding of law if the finding is one that a Judge in the present state of the law could reasonably reach or if there has been a fair trial and substantial justice has been done. 32. Vivian Bose, J. - My opinion will be found in my referring order. I see no reason to modify it. All I intend to do here is to outline my reasons, sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts jurisdiction (Section 3) is to try the suit and its powers are to pass a judgment and a decree (Section 33), the decree determining finally, so far as that Court is concerned, the' rights of the parties with regard to all or any of the matters in controversy in the suit, (Section 2(2)). Under Section 107 the appellate Court has similar powers with some additional ones (e.g., of remand). Its power is to determine a case finally and Sub-section (2) provides that subject as aforesaid the appellate Court shall have the same powers and shall perform as nearly as maybe the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 34. Now, the appellate Court does not re-try the case in the sense of re-hearing the witnesses but it does re-assess the evidence, and it cannot do that unless it has a full record before it. So also it cannot well sit in judgment over a conclusion of law unless it has the reasons which prompted the decision before it. Therefore, in order to enable the appellate Court to discharge these functions the Code provides that in appealable cases a full record of the evidence shall be mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that it is for the Legislature to decide who shall be A, so as to give him the final word, and who B. According to law does not therefore, in my opinion, mean according to the opinion of law which the revisional Judge reaches, because he is not asked to determine the case, but according to the usual forms and usages which prevail in Courts of justice. It is more procedural than anything else. I will illustrate what I mean. 37. It is well established that an executing Court cannot go behind the decree unless the objection is jurisdictional (though there is a difference of opinion about that), or the decree is a nullity; not even the High Court can go behind the decree when the matter comes up to it in execution. The decision may, in the opinion of the High Court, be as wrong as you please but that will not entitle it to interfere, because though wrong it was according to law -the law which states that Court A or B or c, as the case may be, shall finally determine the matter at issue. On the other hand, if the Court had no jurisdiction (according to one view-I say nothing about it), or the decree is a nullity, the decision is not according to law and therefore inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judicial Committee do not interfere in such cases merely on the question whether the Court below has come to a proper conclusion as to guilt or innocence, nor because they themselves would have taken a different view of the evidence. The position under Section 25 is, in my opinion, very similar with, however, this difference. The Judicial Committee undoubtedly has the power and the right to interfere though under the unwritten principles of the Constitution of the Empire their Lordships do not do so. In my opinion, the High Court has not the right nor does it possess the power unless the decision was not according to law, and these words mean, not an error of law or of fact, but what I have suggested above. 41. The reasons are, in my opinion, good and sound, though that is immaterial on a matter of construction, and are the same as those set forth by the Judicial Committee in Balkrishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 25 referred to above. I quote their Lordships' words: The Constitution of the Empire is tending to develop in the direction of regarding as final decisions given in the local administration of criminal justice. The general principle is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and the High Court cannot interfere. If he could not, then the case is opened up and the High Court is bound to interfere and itself to decide according to law that is to say, to decide just as it would if it were sitting in appeal. If I am right, then the High Court's powers are wider on facts than in second appeal, because, in my opinion, the High Court can interfere oven on facts if the decision is one which no Judge acting judicially could reasonably have reached. In second appeal, on the other hand, as I see it, the High Court has no jurisdiction to go into facts, however wrong or perverse the decision may be or however gross and inexcusable the error provided there is evidence on which the findings can be based. But of course cases in which interference on facts would be possible in revision would be extremely rare because it is exceedingly difficult for a Judge who has not seen and heard the witnesses to say that no reasonable Judge could have believed or disbelieved one rather than another. This is particularly so when no reasons for the conclusions need be given. The same remarks apply to an estimate of documents. As the Privy Council has said, though the const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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