Natu Mandal vs Badal Mullick and Others

Maclean, C.J.—A preliminary objection has been taken on behalf of the Respondent in this case to the effect that a reference to a Full Bench cannot be made by a judge of this Court sitting alone to hear cases in which the value of the subject-matter in dispute does not exceed Rs. 50. The point is one of considerable importance. Under Rule 1 of Chapter V of the Rules of the High Court, Appellate Side, a reference to a Full Bench can only be made when one Division Court differs from another Division Court upon a point of law or usage having the force of law. The question therefore to my mind resolves itself into this, whether a judge sitting alone, as was the case here, is a Division Court within the meaning of the Rule which I have just read. When we look at the Rules carefully, it will be found that in them distinctions are drawn between a Division Court and a judge sitting alone. That is apparent from Rule 6, Chapter VI, in which, speaking of appeals under sec. 15 of the Letters Patent, the Rule says, "In every appeal under sec. 15 of the Letters Patent against the judgment of a Division Bench or of a judge sitting singly on the Appellate Side of the High Court." That shows the distinction which is drawn between a judge sitting alone and a Division Court. In referring to that Rule, 1 was addressed to us as to the inference properly deducible from Rule 1 of that Chapter, which speaks of every appeal to the High Court under sec. 15 of the Letters Patent from a judgment of a Division Court on the Appellate Side of the High Court. It was contended that inasmuch as there was an appeal under that section from the decision of a judge sitting alone, and as the Rule only refers to a Division Court, the inference was that a judge sitting alone was to he treated and regarded as a Division Court within the meaning of the Rule : and that an indication was thus afforded that the distinction which I have suggested between a Division Court and a judge sitting alone was not well founded. But giving all weight to that contention, and it was upon this Rule that Dr. Ashutosh Mookherji mainly relied, we must necessarily look at all the Rules, and I think we obtain a fairly clear indication of what was intended by the term Division Court from see. 13 of 24 and 25 Vict., C. 109, the Act establishing High Courts of Judicature in India. That section shows that a Division Court must be constituted of two or more judges of the High Court, which is incompatible with such a Court being composed of a single judge sitting alone. It can hardly be supposed that the framers of the Rules made under the Act intended to use the term Division Court in a sense different from that in which it was used in the Act itself. Moreover, the term Division Court is scarcely the term one would ordinarily apply to a judge sitting alone. The view that one judge cannot refer a case to a Full Bench is further strengthened by Rule 2 of two judges must differ from the decision of the former Division Conn. On these short grounds I am of opinion that it is not competent for a judge sitting alone, as he was in the present case, to make a Reference to a Full Bench, and consequently, that the preliminary objection must prevail. The result, therefore, is that the Reference to a Full Bench is irregular and the case must go back to the learned judge who made the reference, to be dealt with by him as he thinks right.

Macpherson, J.

I am of the same opinion.

Trevelyan, J.

I am also of the same opinion.

Ghose, J.

I am also of the same opinion.

Rampini, J.

I am also of the same opinion.

Maclean, C.J.

Under the circumstances we do not think there ought to be any costs of this hearing.