HOMI WADIA Vs. DWARKADAS SUNDERDAS KAPOOR

JUDGEMENT

(1.) THIS is a revisional application by defendant 2 and the only point which has been raised on his behalf by Mr. Sukthankar is that the Pull Court exceeded its jurisdiction under Section 38, Presidency Small Cause Courts Act in that it interfered with the decree passed by the learned Trial Judge on question of fact.

(2.) THE dispute lies within a very narrow compass. It appears that the plaintiff gave certain ornaments to the partnership of defendants 1 and 2. This partnership, according to the plaintiff, was then engaged in producing a picture known as "sinbad the Sailor". For the price of the ornaments sold by the plaintiff he brought the present suit and he impleaded defendants 1 and 2 to his suit. Defendant 1 did not dispute the fact that he had taken the ornaments from the plaintiff. He, however, denied that defendant 2 was a partner in the production of this picture. Defendant 2 made a similar plea, but remained absent at the trial. The learned trial Judge believed defendant 1, disbelieved the plaintiff and held that defendant 2 was not a partner. In regard to the dispute between the plaintiff and defendant 1 the learned trial Judge accepted the plaintiff's case and passed a decree in his favour against defendant 1 for Rs. 1590/- and costs. The plaintiff preferred a revisional application to the Full Court under Section 38 and the Full Court took the view that, since the trial Court did not appear to have applied his mind to the real dispute between the parties before him, they were justified in exercising their revisional powers and so the decree passed by the trial Court dismissing the plaintiff's suit against defendant 2 was reversed and a decree has been passed against defendant 2. Mr. Sukthankar's contention is that, in reversing the decree passed 6y the trial Court on a question of fact, the Pull Court has exceeded its Jurisdiction under Section 38.

(3.) THE limits of the jurisdiction of the Full Court in entertaining an appeal under Section 38 are well denned. Section 37 makes the decrees or orders passed by the trial Court finally subject to the results of proceedings taken under Section 38, and under Section 38 the jurisdiction conferred upon the Full Court is revisional jurisdiction. It is not very easy to define the limits of re-visional jurisdiction, though the said limits are well established. If the question raised before the Full Court is one purely of fact, the Full Court would not be entitled to interfere with the finding recorded by the learned trial Judge merely on the ground that the Full Court would have taken a different view on the said facts. It would be difficult to justify interference by a revisional Court even on a pure matter of law. If the trial is irregular or there is any defect in the procedure adopted by the trial Court or if the trial Court has made an order exceeding his jurisdiction or has committed any illegality or irregularity in the decision of the suit then the revisional jurisdiction of the Court can be appropriately invoked. This view has been expressed by Beaumont C. J. In -- 'dinshaw Iron Works v. Maikhan Adamji and Co. ', AIR 1943 Bom 42 (A ). Beaumont C. J. In a subsequent judgment had occasion to consider the same point in --'c. M. Easily v. Ernest do Rozario', AIR 1944 Bom 189 (B) and in this case the learned Chief Justice pointed out that, though ordinarily the Full Court exercising its jurisdiction under Section 38 would not be entitled to interfere with the findings of the trial Court on questions of fact, it would nevertheless be justified in interfering with a finding if it comes to the conclusion that the trial Court had not applied its mind to the point before it. It must be remembered that the comment that the trial Court had not applied its mind can be made with justification only where the Full Court is satisfied that the comment can be properly made. This formula cannot be used for interfering with questions of fact in a matter that comes before the Full Court merely because the Full Court takes a different view of facts in that particular case. One can say that a Judge has not applied his mind to the points of evidence before him only where it appears clearly that some important and salient features of the case have completely escaped the attention of the learned Judge. The distinction between the view taken by the Pull Court that the appreciation of the trial Court of questions of fact is erroneous and cases where the Pull Court takes the view that the trial Court has not applied its mind to the facts at all must be borne in mind whenever the Judgment of Beaumont C. J. In 'eastley v. Rozario (B)' is sought' to be used by the Full Court.