Enat Mondul vs Baloram Dey and others

Maclean, C.J.—We are asked by the Petitioner, who has obtained this Rule, to interfere, under the powers vested in us under sec. 622 of the Code of Civil Procedure. The point is a short one. The suit was one for the recovery of a sum of Rs. 500 or thereabouts. In the course of the proceedings before the Munsif, a certain document which is spoken of as an account, is stated to have been admitted in evidence, though unstamped. I must confess that I feel some doubt as to how this account could have been treated as "admitted" by the Defendants, for the question of whether or not they ever executed it would appear to have been a hotly contested issue in the case. The Munsif decided in favour of the Plaintiff. The case then came before the Subordinate Judge on appeal. He refused to admit this document in evidence, on the ground that it was unstamped, and then delivered a strong judgment against the Plaintiff, treating his evidence and that of his witnesses, "as wholly unworthy of credit," and stating that the claim was not true, and he dismissed the suit. It is of course possible, though perhaps not very probable, from the language he has used, that, if he had treated the account as admissible in evidence, he might have arrived at a different conclusion. It is noteworthy, as I have pointed out above that the Subordinate Judge regards the question whether the Defendant signed the account, as one of the issues, and though he has not said so, in so many words, his language would rather indicate that, in his opinion, that issue should be decided in the Defendant''s favour. However, I will assume for the purposes of my present judgment, that the document was admitted before the Munsif. Then the Petitioner says that, having regard to sec. 34, sub-sec. 3 of the Stamp Act, Act I of 1879, this account, as it had been admitted before the Munsif, was admissible as evidence in the Court above, although unstamped, and upon this ground he asks us to interfere under sec. 622 of the Code, contending that, in not admitting it, the Subordinate Judge exercised his jurisdiction with "material irregularity" within the meaning of that section. It is suggested by the Petitioner that this section was never drawn to the attention of the Subordinate Judge. I don''t know how this may have been : but, if it were not, that was the fault of the Petitioner; and, under those circumstances, having regard to the discretion vested in us under sec. 622, I should not bo disposed to interfere. If a judge be deemed to have acted, in the exercise of his jurisdiction, with "material irregularity " when he fails to display a knowledge of every section of every Act of the Legislature though not called to his attention, I am afraid that there are but few of us who do not act with that irregularity. But if the section were drawn to his attention, his error was that he misconstrued it, and so fell into an error of law. But an error of law is not acting, in the exercise of his jurisdiction, illegally or with material irregularity within the meaning of sec. 622. This is clear from the case of Ameer Hossein v. Sheo Buksh ILR 11 Cal. 6 (1884.). Here the Judge had undoubted jurisdiction to decide the case, and if he decided it wrongly, by failing to admit some evidence which he ought to have admitted, he did not exercise his jurisdiction illegally or with material irregularity. This is in accordance with the view I myself expressed -- a view concurred in by my colleague, Mr. Justice Banerjee -- in the case of Mathura Nath Sarkar v. Umes Chandra Sarkar 1 C.W.N. 626 (1897)., and, as seems to me, is also consistent with the view expressed by Mr. Justice Banerjee and Mr. Justice Gordon in the case of Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi 1 C.W.N. 617 (1896). The learned Judges in the latter case, however, have apparently engrafted upon the Privy Council decision a limitation, to the effect that the Court can interfere under sec. 622 if the error of law be "gross and palpable." This, to my way of thinking and with all respect, is frittering away the decision of the Privy Council and is likely to lead to confusion. In every case we should have to enquire whether error of law is "gross and palpable," and this opens out a rather startling vista of contentious matter. To one mind the error of law may appear "gross and palpable :" to another mind it may present itself as a question of real difficulty. When the Privy Council have decided a point of law in clear and precise terms, I prefer, as I have frequently said, to follow it, and not attempt to whittle down its effect. If their view is to bo modified, the members of the Judicial Committee of the Privy Council are the authority to modify it. For these reasons I think the rule must be discharged with costs, the hearing fee being fixed at 2 gold mohurs.

Banerjee, J.

I regret very much that I am unable to agree with the learned Chief Justice in the view he has taken in this case.

The Petitioner, who was the Plaintiff'' in the first Court, asks us under sec. 622 of the Code of Civil Procedure, to set aside the decree of the lower Appellate Court dismissing his suit; and the ground upon which our interference is sought is that the lower Appellate Court has acted in the exercise of its jurisdiction illegally or with material irregularity, in rejecting a document put in by the Plaintiff because it was not stamped, when such document had been admitted and relied upon by the first Court, and when its rejection was therefore contrary to the provisions of sec. 34 of the Stamp Act (Act I of 1879).

The learned vakil for the Opposite Party in shewing cause, contends, first, that apart from the question of law as to the admissibility of the document under consideration, the lower Appellate Court has in effect found the document not proved and so no point of law arises; and, secondly, that even if the question of law arises, it cannot be a sufficient ground for our interference under sec. 622 of the Code of Civil Procedure, there being at the most only an error of law in the decision of the lower Appellate Court, and such an error according to the decision of the Privy Council in Ameer Hossein''s case ILR 11 Cal. 6 (1884). not coming within the scope of sec. 622.

If the first contention be right, the Rule must be discharged. But after carefully considering the judgment of the lower Appellate Court, I am unable to hold that it has found the document in question not proved. The lower Appellate Court has no doubt found the Plaintiff''s case not proved; but it has come to that finding after having at the outset of its judgment rejected the document relied upon by the first Court, as inadmissible in evidence, because it was not stamped. This is clear from the judgment. For the learned Subordinate Judge expressly says, "Leaving this document therefore out of consideration, it appears that the only other evidence that the Plaintiff adduced in proof of his case was his own deposition, the depositions of his gomastha and the testimony of one of his debtors. On going through this evidence, my opinion is that it is wholly unworthy of credit." It was argued that as the document was sought to be proved by those, or only some of these witnesses, who are referred to in the judgment of the Appellate Court, if they have been disbelieved the document has in effect been found not proved. In the first place, I do not think this argument is sound; for if the document had not been rejected as inadmissible, a different view might have been taken of the oral evidence; and there is reason for thinking that that might have been the case, when the learned Subordinate Judge himself says, "I fail to understand and it is not explained why the Plaintiff, who has a gomastha and other debtors, should lend such a large sum as Rs. 500 to the Defendants without a formal bond or document." And in the second place, I observe that the document in question was sought to be proved, as the judgment of the first Court shews, not merely by the evidence of the witnesses referred to above but also by a comparison of its handwriting with that of a certain other document put in by the other side.

The first contention urged against the Rule is, therefore, in my opinion, untenable.

Turning now to the second contention urged against the Rule, I must say that though, as observed by the Privy Council in Ameer Hossain''s case ILR 11 Cal. 6 (1884) deciding wrongly is not exercising jurisdiction illegally or with material irregularity, that observation must be taken with reference to the case before their Lordships and ought not to be taken as laying down any hard and first rule applicable to all cases. What that case must be taken to have settled is that it is not every error of law that will come within the scope of sec. 622; but it does not follow that no error of law unless it is also an error of jurisdiction, can come within the operation of that section. I have had occasion to consider the meaning of sec. 622 of the CPC in the cases of Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi 1 C.W.N. 617 (1896), Mathura Nath Sarkar v. Umes Chandra Sarkar 1 C.W.N. 626 (1897). and Raghunath Gujrati v. Rai Chatraput Singh 1 C.W.N. 633 (1897)., and I need not repeat what I have said in those cases. It will be enough for this case to say that the error of the lower Appellate Court in rejecting the account put in for the Plaintiff as not stamped, in contravention of sec. 34 of Act I of 1879, comes within that part of sec. 622 which speaks of a Court''s acting with material irregularity in the exercise of its jurisdiction. The rejection of the document in contravention of sec. 34 of the Stamp Act and without any advertence to it, is more in the nature of a materially irregular act than of an erroneous decision on a point of law, for the Court did not decide upon any erroneous construction of that section that the document might, notwithstanding its provisions, be rejected; but it rejected the document without adverting at all to the law bearing upon the point. The error here was gross and palpable, and it is likely to have led to injustice. In my opinion it is an error such as sec. 622 of the CPC was intended to correct. I would therefore make the Rule absolute, set aside the decree of the lower Appellate Court, and send the case back to that Court in order that it may decide the case after taking into consideration the document which it has, in contravention of sec. 34 of the Stamp Act, rejected as inadmissible.