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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 ..... n one side while "justice" seems prima facie to be on the 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 Insolvenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint but one gathers that November 1936 was intended. If not, according to the other side, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have matters stopped there. A number of references have recently been made to the Division Bench on disputed questions of law. 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be to act unjustly from a judicial point of view. If that is so, then we are driven back to the position that every time there is an error of law, or even of fact, the 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. They are only deemed to be so because the higher tribunal thinks them to be so. They are not necessarily so from any abstract or absolute standpoint. In fact when a still further appeal is allowed it often 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 umpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even to the ordinary lay mind appear to be material;' and without going as far as that, facts which modern medical science would regard as the prime disposing cause. Also, looked at from the narrow individual standpoint why is it just 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the decrees or Orders of the regular Courts, the High Court is invested by law with defined powers. 19. A Small Cause Court is a Court of summary jurisdiction. Its decrees or orders are finally binding on the parties. The litigation concludes in the Small Cause 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are several possible interpretations of this section and much authority can be found to support almost every view except the extreme contention made by Mr. Dabir that the High Court is bound to interfere in every case, even after the lapse of any length of time, if it differs from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice and illegality that can be detected from a mere summary record.... The Judge of the High Court cannot, one would think, fail to feel the force of the consideration that in small money claims, the moment the plaintiff has to defend his decree in the High Court, then whatever the result, 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 comparativel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terfere in such cases as it thinks fit. It has been argued that a discretion has been given to the High Court to interfere in cases where the decision is not according to law and that that power must be exercised. With that view I entirely disagree. Section 25 gives the High Court discretion to send for the record of 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. Bish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en delayed and the defendant's evidence has been destroyed by the lapse of time or it may be a plea devoid of all merit, to use the words of the Privy Council in Devidas v. Nilkanthrao A.I.R. 1936 P.C. 171 I do not think however it impossible to lay down any standard by which "substantial justice" can be measured. Courts of law have 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys does when a right of appeal is conferred, and as it has not, it is not permissible for the High Court to exercise appellate powers in the guise of a revision. The distinction between a Court of appeal and one of revision is to be gathered from the Civil Procedure Code. But before passing on to that, it will be as well to see the position of the trial Court. Its 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-ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding by themselves is not free from difficulty, but viewed in the background I have suggested they do not, in my opinion, empower the High Court to interfere on questions of law, still less on questions of fact, except in the limited circumstances which I shall define. I have pointed out in my referring order that there is no such thing as an absolute standard of right and wrong. In every case right is what A thinks or B 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acter, or a violation of principle in such a fashion as amounts to a denial of justice.: see Balkrishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 25. 40. It will be observed that the "justice" contemplated here is not the View of the facts or the law which the Privy Council might take if they went into the matter but the view of the Court invested with jurisdiction to say the final word, provided that Court has acted in a proper manner. In Balkrishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 25 their Lordships said that the 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 "accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing arbitrary or whimsical in the powers conferred. The limitations lie, not in the manner of exercise, as with the Judicial Committee, but in the powers themselves. "According to law" does not mean an error of law in the opinion of the High Court but a conclusion which no Judge could reasonably reach either in law or in fact. That, in my opinion, is the test: not whether the High Court, or the particular Judge presiding over the Court in revision would have reached the same conclusion, but whether a Judge acting judicially could reasonably have reached it. If he could, then the decision is according to 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 jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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