Vias Ram Shankar vs Ralla Ram Misir

Louis Kershaw, C.J. and Burkitt, J.—This is an application for revision of an order passed by the Judge of the Court of Small Causes at Benares in the suit Vyas Rama Shankar v. Ralla Ram Misr. The applicant, it appears, had obtained a decree ex parte against the opposite party. The latter applied, under the provisions of Section 108 of the Code of Civil Procedure, as amended by Section 17 of the Provincial Small Cause Courts Act (No. XX of 1887), to have the ex parte decree set aside and the case re-heard. That application was allowed by the Judge of the Court of Small Causes, who directed the case to be re-tried. The contention on behalf of the plaintiff in the suit--the applicant here--was that, under Article 1641 of the second schedule to the Limitation Act of 1877, the application to have the ex parte decree set aside was time-barred and should not have been entertained. That is the contention which the Court below overruled, and which is now repeated in -the present application.

At the hearing before us Mr. Chaudhri took a preliminary objection to the effect that this application, which calls in question a decision of the Court of Small Causes, which by law is final between the parties, is one which, with reference to former rulings of this Court, we ought not to entertain. The learned advocate cited the cases of Raghu Nath Sahai v. The Official Liquidator of the Himalaya Bank, Limited ILR All. 139, Sarman Lal v. Khuban ILR All. 476, and Sarman Lal v. Khuban ILR All. 122. For the opposite party Mr. Banerji cited Muhammad Bakar v. Bahal Singh ILR All. 277, and The Poona City Municipality v. Ramji ILR 21 Bom. 250. We have carefully considered all the cases cited on both sides.

The argument on one side in this matter proceeded very much on the assumption that in the cases cited from the 15th, 16th and 17th volumes of the Allahabad Series of the Indian Law Reports this Court had bound itself by an inflexible rule not to admit, u/s 25 of the Small Cause Courts Act, any application which would not be admissible u/s 622 of the Code of Civil Procedure. That assumption is entirely erroneous, as will be seen from the remarks of the late Chief Justice when delivering the decision of the Full Bench in the case of Sarman Lal v. Khuban ILR All. 477. The judgment points out that Section 622 of the CPC should be taken as a guide indicating the lines along which a Judge would do well to exercise his discretion in admitting an application u/s 25 of the Small Cause Courts Act. But neither that case, nor any of the others, professes to compel a Judge to refuse any application made u/s 25 of the Small Cause Courts Act which could not be admitted u/s 622 of the Code of Civil Procedure. Those cases leave the discretion of the Judge quite unfettered, while at the same time indicating to him a line which he might well follow, and a general principle which he ought to apply. As to the case now before us, we, in the exercise of our discretion in this particular case, refuse (as in Sarman Lal v. Khuban ILR All. 422, to try in revision and reopen questions of law and fact which have, in the lawful exercise of its jurisdiction, been decided by a Court whose decision the Legislature made final. We reject the application with costs.