ASHO DEVI Vs. DUKHI SAO

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of a single judge of this Court reversing the judgment of the third Subordinate Judge, Patna, and dismissing the plaintiff's suit for recovery of a certain sum said to have been due to her from the defendant in full payment of the price of goods (grains) supplied together with interest and other charges The defendant's plea was one of complete denial of the so-called purchase of grains from the plaintiff There was no documentary evidence, such as voucher signed by the defendant, to prove the plaintiff's claim and the plaintiff relied solely on. the oral evidence of her brother. P. W. 2. corroborated by the evidence of two other witnesses, namely, P. Ws. 1 and 3 The trial court was inclined to believe these witnesses, but the learned single Judge on appeal held that the plaintiff's version was highly improbable specially in view of the serious discrepancies in the evidence of the witnesses and the absence of any documentary evidence in support of the supply of grains by the plaintiff to the defendant. He was also inclined to accept the defendant's claim that there was a transaction of sale between the parties and that a sale deed was executed and registered by the defendant, though the entire consideration money was not paid Apparently, the suggestion seems to have been that the plaintiff brought the suit with a view to escape liability for payment of the balance of the consideration money due on the sale deed.

(2.) Mr. Lalnarain Sinha, for the appellant, wanted to canvass in this court also the finding of fact, namely, the belief or otherwise of the plaintiff's evidence of sale of the grains to the defendant. He was, however, confronted with the decision of a Division Bench of this Court (Mahapatra and Tarkeshwar Nath, JJ.) in Ramsarup Singh v. Muneshwar Singh, AIR 1964 Pat 76, where it was held on a construction of Clause 10 of the Patna Letters Patent that in an appeal against the first appellate judgment of a single Judge the restrictions imposed by Section 100 C. P. C. would apply and that the Division Bench will not be justified in interfering with mere findings of fact. Mr. Sinha, however, invited our attention to a subsequent Bench decision (Misra and G.N. Prasad. JJ.) in Jugal Kishore Bhadani v. Union of India, 1965 BLJR 24: (AIR 1965 Pat 196), where the aforesaid view was not followed on the ground that it was in the nature of an obiter dictum. That Division Bench was of the view that in the absence of any restrictive words in Clause 10 of the Letters Patent, a Division Bench hearing an appeal from the first appellate judgment of a single judge of this Court was entitled to go into facts. There is a later (unreported) judgment of Mahapatra and A.B.N. Sinha, JJ. in Nilkanth Mahton v. Munshi Singh, L. P. A. Nos. 134 of 1958 and 3 of 1959. D/-7-10-1964: (Now reported in AIR 1965 Pat 141), in which the Bench reiterated the view taken in AIR 1984 Pat 76, and held that the said view was not an obiter dictum. In view of this sharp conflict between two Division Benches of this Court as to the scope of an appeal from the first appellate judgment of a single Judge, I thought it advisable to refer the entire appeal to a Full Bench consisting of three Judges. We are indeed grateful to Counsel for both sides for having given us their valuable assistance in deciding this somewhat difficult question, which is the main question for consideration before the Full Bench.

(3.) Clause 10 of the Patna Letters Patent (omitting immaterial portions) refers to three classes of appeals that may be heard by a Division Bench: (1) appeals from the judgment of a single Judge in exercise of his original jurisdiction; (2) appeals from the judgment of a single Judge in first appeals; and (3) appeals from the judgment of a single. Judge in second appeals. The said clause does not give an indication as to whether the scope of an appeal in respect of the aforesaid three classes will be the same, the only restriction being that an appeal from a second appellate judgment of a single Judge will not lie unless he certifies that it is a fit case for appeal. It is true that ordinarily the same words occurring in a statute, specially in the same clause or section, must be given the same meaning unless there is repugnancy in the subject or context, but it is also well settled that however wide the language of a statutory provision may be, some restricted meaning may have to be given to the statutory expression in the light of the context. To quote the classic words of Viscount Simonds in the House of Lords case in Attorney General v. Prince Ernest Augustus of Hanover, 1957 AC 486 at page 461: