MOTILAL Vs. BHAGATRAM NAGARMULL

JUDGEMENT

(1.) This is a Reference under Section 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.

(2.) 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 under Section 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.

(3.) 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 under Section 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.