Laldhari Tewari and others vs Jhari Tewari and others

Wort, J.—In this case I am asked to embark upon an inquiry for which I have no jurisdiction. In the action out of which this appeal arises the defendants here being the appellants were the reversioners claiming certain property which had been alienated in one form or another, details of which it is unnecessary to mention, by a widow. The case made by the plaintiff was that it was without legal necessity; the defence set up in the written statement was that there were both legal necessity and bona fide inquiry. The learned Judge has disposed, of the case by a judgment confirming the decision of the trial Court by holding that there was no legal necessity. There is no mention by him of the question of whether there was a bona fide inquiry; and it is contended now that his judgment is incomplete without such a finding There is no doubt that the defendants were entitled to raise that question, and if they had established the fact that there was a bona fide inquiry, they would have been entitled to succeed. But the most remarkable thing about this case is that the trial Court framed no issue, and it is idle for any one to argue that the issue relating to legal necessity is the same and can be treated as a part of the issue relating to the bona fide inquiry made by the creditor; the two things are quite separate and are dealt with Separately by the Privy Council in the leading case of Hanooman Prasad v. Babooee Mundraj Kuuwari, (1854-57) 6 M I A 393 = 18 W R 81n = 2 Suther 29 = 1 Sar 552 (P C).

The contention is that the matter should go back to be determined by the lower appellate Court. I repeat no issue was framed by the trial Court, no mention was made of it by the trial Judge, and the most remarkable thing is that when the case went before the lower appellate Court no grievance was made of this in the notice of appeal. Now am I to inquire whether this issue was pressed in the lower appellate Court or am I to treat the case in the circumstances as if the issue had not been pressed ? In the lower appellate Court the defendants would not have been entitled to raise this question excepting with the leave of the Court, because they had not mentioned it in their notice of appeal. I can only treat the matter as one in which the appellants did not consider it necessary to press the point. It is impossible for me in the circumstances of the ease to hold otherwise. That being so the appeal is disposed of. But it is contended by the learned Advocate appearing on behalf of the appellants that it was essential for the Court of appeal below to decide this issue quite apart from whether the parties asked the Court to decide it or not. Reliance was placed on the decision in Chintamani Mahapatra v. Satyabadikar, 1923 Pat 71 = 70 I C 226 = 1 Pat 715. If I am to understand Das, J., in that case as meaning that as a matter of law and in all cases whatever issues are raised or whatever attitude the parties themselves take, it is necessary for a Court in a case of this kind to decide both the questions of legal necessity and bona fide inquiry, then all I can say is that Das, J., has overruled the decision in the leading case to which I have referred, a case which was decided by the Privy Council so many years ago.

But I cannot read the judgment as such. What the explanation of it is it is unnecessary for me to say. What I do say is that if parties go to trial pressing one issue alone, they alone or their Advocates are to blame. The Judge has decided a question of fact the issue of, necessity against the appellants, and however erroneous that decision may be it binds me in second appeal. It was contended that this was an error in procedure, because the learned Judge discarded the evidence. The answer to that is Durga Choudhrain v. jawahir Singh, (1891) 18 Cal 23 = 17 I A 122 = 5 Sar 560 (P C), where the same view had been taken by the Judicial Commissioner of the Central Provinces and his view that he could interfere in second appeal where the evidence was'' disregarded was not accepted by the Judicial Committee of the Privy Council. Reliance has been placed on the well-known case of Futtehma Begum v. Mohamed Ausur, (1883) 9 Cal 309. Their Lordships of the Privy Council said that they were not going into the question as to whether the Judge discarded the evidence or not because they did not agree with the decision of the Calcutta High Court and made this statement of law :

Where there is no error or defect in the procedure, the finding of the first appellate Court upon a question of fact is final.

and it is final "however gross or inexcusable the error may seem to be." The appeal is dismissed with costs. Leave to appeal under the Letters Patent is refused.