Sadasook Gambir Chund vs Knnayya and Another

Shephard, J.—This petition raises an important question with regard to the practice of the Full Bench of the Small Cause Court in dealing

with applications under the 37th Section of the Act of 1882. The application in this case was made on behalf of the defendants, against whom a

decree had been passed. It is made in the form of an appeal against the decision of the Second Judge, and is based on various grounds, three of

which relate merely to questions of the appreciation of evidence. In their judgment on the application the learned Chief Judge and his colleagues

discuss the evidence, and deal with the case precisely in the manner in which an Appellate Court might have treated it. They differ from the

conclusion of fact at which the Second Judge had arrived and find in favour of the defendants. They hold that the case is one in which, under the

rules of the 16th February 1886, they are justified in entertaining the application and dealing with the case accordingly. The result was the reversal

of the decree and the dismissal of the suit.

Now, whatever may be the force or effect of the rules above mentioned, there can be no doubt that under those rules the Full Bench cannot

assume a jurisdiction which under the Act itself they do not possess. The question then is, whether under the 37th Section of the Act, the Full

Bench was justified in entertaining the application and reversing the decree.

The section consists of two parts. First there is a declaration that the determination of a case tried in the Small Cause Court is to be final and

conclusive. In other words the right of appeal is denied. Then comes the provision empowering the Full Bench, on application duly made, to grant

a retrial or to do certain other things. The forms which the interference of the Full Bench may take are such as a Court of Appeal might be

empowered to use; but evidently the Full Bench is not intended to sit as a Court of Appeal. The section which follows, providing for a re-hearing

by the High Court in cases of miscarriage or failure of justice, furnishes an alternative course, which would scarcely be given if under the preceding

section the Full Bench were meant to be a Court of Appeal. The distinction between the functions of the Full Bench and those of an Appellate

Court must lie in the character of the conditions under which the Full Bench has jurisdiction to interfere. Those conditions are not expressed even in

such general language as is used in the 38th section, but I think they may be gathered from the language of the previous Act and the rules of English

Law in pari materia. By the 50th Section of the Act of 1850, which also contains a declaration that the judgments of the Small Cause Court are to

be final and conclusive, there is reserved to the Court the power of granting a new trial. The section does not provide for any other mode of

interference with the original decree. When, in 1882, the Legislature altered the law by prescribing several modes of interference, it appears to me

that it clearly was not intended to alter the conditions under which the Full Bench might act. Now under the Act of 1882, as formerly under the Act

of 1850, it has to be seen whether in any given case the circumstances are such as would justify the granting of a new trial. In the present case, if

under the Act of 1850 a new trial would not properly have been granted, then, in my opinion, under the existing law, the application ought not to

have been allowed and the decree ought not to have been reversed. The conditions under which a new trial may be granted according to the

accepted practice prevailing in English Courts in cases in which that is the form of remedy provided are various. (See Lush''s Practice). The only

rule which could possibly have any application to the present case is that which justifies a motion for a new trial on the ground that the verdict is

against the weight of evidence. This rule, however, does not mean that the Court before which the motion is made is at liberty to set aside the

verdict merely on the ground that they take another view of the evidence and do not agree with the conclusion of the jury. The applicant for a new

trial must go farther than this; he must show that the verdict is one to which no reasonable man ought to have come see Solomon v. Bitton 8

Q.B.D. 176. It does not appear that in the present case there was any pretence for saying that the judgment of the Second Judge was in this sense

an erroneous one. The burden of proof was on the defendants, and the question was simply as to the sufficiency of the proof adduced by them. It

is clear that the case was one in which different minds might not unreasonably have come to different conclusions. In the case cited above the

Judge before whom the case had been tried had expressed dissatisfaction with the verdict. Yet the Court of Appeal reversed the order for a new

trial on the ground that the granting of a new trial did not depend on the opinion of the Judge who tried the action, but on the question whether the

verdict was such as reasonable men ought to have come to.

In my opinion the Full Bench have transgressed the limit of the jurisdiction conferred on them by the 37th section. They have in fact assumed the

functions of a Court of Appeal.

I would therefore set aside their order and restore the decree. The respondents must pay all the costs.

Best, J.

It is contended on behalf of the petitioner that the Full Bench of the Madras Small Cause Court exceeded its powers in reversing the decision of

the Second Judge merely on a consideration of the evidence, there being no question of law.

Section 37 of the Presidency Small Cause Courts Act (XV of 1882), under which the Judges acted, after declaring that every decree and order

of the Small Cause Court in a suit shall be final and conclusive, ""save as is herein specially provided,"" adds that the Court may, on application of

either party, made within eight days from the date of the decree or order in any suit, order a new trial to be held, ""or alter, set aside or reverse the

decree or order"" upon such terms as it thinks reasonable.

The language used seems tome to mean that, though the party is not entitled to appeal as of right, in any case in which application is made within

the time allowed, the Court may, if it thinks fit, reconsider any decree or order with all the powers of an ordinary Appellate Court. There is nothing,

either in the wording of the section or in the rules for new trials sanctioned on the 16th February 1886, to debar a re-hearing where the question is

one merely of appreciation of the evidence. The rules, in fact, by saying that the powers conferred by the section will ordinarily be exercised only

on certain specified grounds, recognize the power of the Court to grant a re-hearing even in other cases, should the same be thought necessary for

the ends of justice; and such also appears to have been the intention of the Legislature, judging from the language used in Section 37.

Being of opinion that the Full Bench did not act without jurisdiction, and seeing nothing illegal in its proceedings, I would dismiss this petition with

costs.

Collins, C.J.

This case was not re-argued before me, the respondents not appearing.

I agree with Mr. Justice Shephard''s reasons and conclusion, and I would therefore set the order aside and re-store the decree. The

respondents must pay all the costs.