RAMDIN BANIA Vs. SEW BAKSH SINGH

JUDGEMENT

(1.) This is an application under Section 115 of the Civil Procedure Code for an order that what is described as a judgment but is really an order of the 5 Judge (now officiating 4 Judge) of the Calcutta Small Cause Court refusing sanction to prosecute the plaintiff in a certain case may be set aside, that the record should be sent for and such order as the Court may think fit and proper may be passed. The order actually asked for is that the 5 Judge, now the officiating 4 Judge, may be directed to hear and determine the application according to law. It is made by Sew Buksh Singh the defendant in the Small Cause Court suit, who is represented by Mr. Hume as his attorney who is in fact the Public Prosecutor and it is stated that this application is made by him officially--and not as a merely private attorney. It appears from the affidavit of Surya Pada Banerjee a pleader that he made the application on behalf of Sew Buksh but instructed by the Criminal Investigation Department and it was refused on two grounds; first, that if such an application was entertained there would be numerous similar applications every day, and, secondly, that the Court was not bound to go beyond its records, which, I take it, means there is nothing on the record to show that the case was false.

(2.) In my opinion neither of these grounds are valid grounds and I come to the conclusion that the Judge has declined to exercise a jurisdiction vested in him in that he has refused to hear and determine the application, for rejecting an application on these grounds is not a judicial decision of the matter before him.

(3.) Certain points, however, arise (1) whether the application is properly made to me and (2) whether the application is a case within Section 115: if it is not, I certainly cannot deal with it: (3) whether the application to me is of a Civil or Criminal nature (4); whether there is in fact an appeal or a procedure so similar to an appeal as to provide an effective remedy and whether, in consequence an application in revision is excluded.