Babu Badri Narain Singh and Another vs Hari Lal Singh and Another

Wort, J.—This Rule is directed again9t the order of the learned District Judge dismissing an appeal summarily under Order XLI, Rule 11, Civil Procedure Code. It is perhaps a little inaccurate to say summarily as the learned Judge has written a very long judgment dealing with number of points arising. but expressing the view he had already held regarding the question of limitation in rent suits, he was of opinion that no useful purpose would be served in the circumstances in hearing the appeal in presence of the respondents. It is against that order as I have stated that the Rule is directed. There is no question that the learned Judge had jurisdiction to dismiss the matter summarily, although a somewhat different view was expressed in the judgment to which I was a party in Mahabir Das Vs. Sadho Choudhuri and Another, . I must not be misunderstood when I say a different view was expressed as that different view depended upon the circumstances present in that case. During the course of the judgment it was pointed out that difficult questions arose for consideration and it would not be doing justice to the parties in the circumstances to dismiss the case under Order XLI, Rule 11. But in this case, as I have already observed, the learned Judge had on a former occasion dealt with the question of law involved that being one of limitation, and saw no good reason for allowing the appeal to be admitted.

Mr. De who appears on behalf of the petitioners contends that had the learned Judge admitted the appeal and heard it in the presence of the respondents, he would have taken a different view having regard to the decision of the learned Chief Justice which was in his favour. But it has to be remembered that there has been a difference of opinion in this Court on that question. My reference is to the case in Babu Rameshwar Prasad Singh and Another Vs. Mangar Kahar and Others, where Rowland, J., after reviewing the authorities in this matter, has come to the conclusion that the shorter period of limitation and not the longer applies to rent suits, that is to say, that the Amending Act is retrospective. The only question which we have to decide in the circumstances is whether the learned Judge had jurisdiction to act in the manner in which he acted in this case. There is no question here (as this is one of the misfortunes from which the petitioners suffer) of any right of second appeal to this Court, but that does not give us jurisdiction to decide a point in favour of the petitioners when we are of the opinion that the learned Judge had jurisdiction to act in the manner in which he acted. The suggestion of Mr. De that the learned Judge might have come to a different conclusion had the appeal been admitted, if I may say so with respect, is quite irrelevant. There is no reason why the Judge in the circumstances should admit the appeal having regard to the fact that he had, as he himself says, already expressed a very different view on this question. In these circumstances the Rule must be discharged but there will be no order for costs. This decision will govern C.R. Nos. 546-581 of 1936.

Manohar Lall, J.

I agree. When I referred these cases to a Division Bench for disposal, I was not informed as has been now pointed out to us by the respondent, that no appeal lay to the High Court in these cases by reason of the provisions of Section 153, Bengal Tenancy Act, the value in each case being below Rs. 100. I considered that it was immaterial that the applications were treated as revision applications or as second appeals because, as pointed out by my learned brother in the case reported in Mahabir Das Vs. Sadho Choudhuri and Another, the dismissal of an appeal sum marily by a Subordinate Court does not necessarily mean that no second appeal lies to this Court, The present applications being rightly headed as applications in revision falling u/s 115, Civil Procedure Code, I. agree that the applications should be dismissed for there is no error of jurisdiction involved in the decision of the learned Judge. In re-hearing the appeals he would either come to the same conclusion or even a different conclusion in law but that is not a ground for ordering him to re-hear the appeal in a case where no second appeallies to this Court.