Motilal vs Bhagatram Nagarmull

Das Gupta, J.—This is a Reference u/s 69 of the Presidency Small Cause Courts Act. The questions, on which the judges of the Small Cause Court, who have made the Reference, have asked for this Court''s opinion are: (1) whether an acting Chief Judge, during casual leave of the permanent Chief Judge, can hear a new trial application as heard on June 13, 1951, and (2) whether the hearing of the new trial application by Sri S.C. Biswas and Sri S.N. Bhattacharjya on June 13, 1951, was regular or not.

The facts, which have given rise to this Reference, have to be stated briefly for an appreciation of the points on which the Court''s opinion has been asked for. It appears that the suit was first decreed ex parte on May 17, 1949. The ex parte decree was set aside on July 11, 1949. The suit was restored to file and fixed for hearing on August 30, 1949. Ultimately, the suit was dismissed on contest by Sri B.P. Bakshi on June 23, 1950. An application u/s 38 of the Small Cause Courts Act for a new trial was thereafter filed by the Plaintiff and was put up before the Chief Judge, Sri C.C. Ganguli, and Sri B.P. Bakshi as required by Rule 4, Chapter XXXIX of the Rules framed by this Court. Before, however, the application could be disposed of, Sri Bakshi left the Small Cause Court on transfer. On November 22, 1950, the application was put up beiore Sri C.C. Ganguli and Sri S.N. Bhattacharjya who bad been appointed a Judge of the Court of Small Causes in the vacancy caused by the transfer of Sri B.P. Bakshi. They heard the application and ordered issue of notice to the Defendant on payment of certain costs. On June 13, 1951, the application came up before Sri S.C. Biswas and Sri S.N. Bhattacharjya. They heard arguments and adjourned the matter to June 20, 1951, for judgment.

It is necessary to mention that on June 13, 1951, the Chief Judge of the Small Cause Court, Sri C.C. Ganguli, was away on leave. It appears that, in applying for leave, Sri C.C. Ganguli suggested to the Registrar of this Court that Sri S.C. Biswas, being the seniormost judge of the court, might remain in charge of the Small Cause Court in addition to his duties during Sri C.C. Ganguli''s absence on casual leave. The Registrar informed Sri C.C. Ganguli that the Court approved of this proposal. It appears that both the learned judges who made the Reference have considered this arrangement to amount to this that Sri Biswas was acting as Chief Judge of the court on June 13, 1951. Assuming that Sri S.C. Biswas was the acting Chief Judge, Sri S.C. Biswas was of the opinion that he, sitting with Sri S.N. Bhattacharjya, was competent to dispose of the application u/s 38, while Sri S.N. Bhattacharjya was of the opinion that an acting judge was not a Chief Judge within the meaning of Section 38. On account of this difference of opinion, they have made the Reference to this Court.

It appears clear to us that, assuming that Sri S.C. Biswas was, in fact, acting as the Chief Judge, he was not the Chief Judge within the meaning of Rule 4, Chapter XXXIX. Section 7 of the Act provides that-

There shall be appointed from time to time a Chief Judge of the Small Cause Court and as many other Judges as the Provincial Government thinks fit.

Section 8 provides about the rank and precedence of the Judges. Section 8A is in these words:

During any absence of the Chief Judge or any judge of the said Court, or during the period for which any judge is acting as Chief Judge, the Provincial Government may appoint any person, having the requisite qualifications to act as Chief Judge or judge of the said Court, as the case may be.

Assuming that Sri S.C. Biswas was acting as the Chief Judge, it was necessary for him to be appointed by the Provincial Government as Chief Judge, as provided in Section 8A, before he could be considered to be, in law, the Chief Judge. The provision in Section 8A clearly shows that a distinction is to be drawn between a person acting as Chief Judge and a person appointed as Chief Judge. There was, in the present case, no such appointment by the Provincial Government. Consequently, it must be held that Sri S.C. Biswas was not on June 13, 1951, the Chief Judge of the Small Cause Court within the meaning of Rule 4, Chapter XXXIX.

We have assumed, for the purpose of this discussion, that Sri S.C. Biswas was, in fact, acting as Chief Judge. Whether he was acting as Chief Judge or not is not, however, very clear, as all that appears from the papers is that he remained in charge of the court in addition to his duties. There was no order by this Court or the Government that he should act as Chief Judge.

Mention may be made of another matter, though on this the Court''s opinion, has not been asked for. As already stated, Rule 4, Ch. XXXIX of the Rules framed by this Court requires that every application for a new trial shall be heard before two or more judges, of whom one shall be the Chief Judge and another shall be the judge who heard the matter in respect of which the application was made. The proviso to this rule lays down that-

In any particular case the Chief Judge may direct that any judges other than those herein specified may hear the application.

The position in law, therefore, clearly is that, in the absence of any such direction by the Chief Judge, an application for a new trial can only be heard by a bench consisting, at least, of the Chief Judge and the judge who heard the matter, in respect of which the application was made. In the present case, the judge who heard the matter, in respect of which the application was made, was Sri B.P. Bakshi. It appears that there was no direction by the Chief Judge in this case in terms of the proviso to Rule 4. Even if, therefore, the Chief Judge himself was on the Bench, the Bench was not competent to hear the application for a new trial in the absence of Sri B.P. Bakshi.

We, therefore, give the following opinion on the question referred to us as follows:

An acting Chief Judge cannot hear an application for a new trial unless he has been "appointed as the "Chief Judge by the Provincial Government"; and

The hearing of the application for a new trial on June 13, 1951, was not in accordance with law.

In disposing of the Reference, we had the assistance of Mr. Sitaram Banerjee, who appeared as amicus curia; at our request, as there was no appearance either on behalf of the Plaintiff or on behalf of the Defendant. We express our sincere gratitude to Mr. Banerjee for the assistance given by him.

Das, J.

I agree.